IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 85 of 2009. Decided on: 20th April, 2010. _______________________________________________________ Krishan ….Appellant. Versus State of HP ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Ms. Ritta Goswami, Advocate. For the respondent : Mr. J.S. Rana, Assistant Advocate General. ____________________________________________________ SURINDER SINGH, J (Oral). Appellant feels aggrieved by his conviction and sentence under Section 20 of the Narcotic Drugs Psychotropic Substances Act, 1985, in short “the Act”, passed by the learned trial Court in NDPS Case No.8 of 2008 decided on 18th April, 2009 to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.50,000/-, in default of payment of fine to further undergo simple imprisonment for a period of six months. Pretrial and under-trial period of detention of the appellant was also ordered to be set off against the sentence imposed. Hence, this appeal. In short, the prosecution case can be stated thus. On 4th December, 2007, PW-8 Sub Inspector Balwant Singh and PW-2 Constable Bhoop Singh were present near Police Post, ‘Loohri’. They were busy in routine patrol duty and traffic checking. On reaching near Loohri Chowk, they noticed the appellant coming Whether reporters of the Local papers are allowed to see the judgment? - 2 - from the opposite side with a bag Ext.P.1 hung on his shoulder. On seeing the police, he was frightened and hid himself behind the vehicles parked nearby. Sub Inspector got suspicion that the appellant might be having some contraband in his possession. He associated PW-1 Krishan Lal present there besides PW-2 Constable Bhoop Singh and apprehended the appellant. The search of the bag of the appellant was conducted. He found a piece of cloth and recovered 1 Kg. 100 grams of Charas, wrapped in polythene paper. Police drew 50 grams of Charas randomly and divided into two parts of 25 grams each as samples and both the sample-parcels were separately sealed with seal impression “A”. Remaining bulk was also sealed with the same seal and taken into possession vide recovery memo Ext.PC in the presence of aforesaid witnesses. Sub Inspector Balwant Singh updated the NCB forms. Specimen impression of seal was taken on a piece of cloth separately. In the absence of SI Balwant Singh PW-6 Rajinder Singh was acting as SHO. Appellant and the case property were produced before him. Appellant was kept under the supervision of duty constable and as per ‘Rapat’ Ext.PW-6/D the case property was resealed by Rajinder Singh aforesaid with seal impression “H”. On deposit of the case property in the Malkhana, one sample was redrawn on 6th December, 2007 and sent through PW-5 HHC Kashmi Ram vide RC No.72 of 2007 for its analysis in Forensic Science Laboratory at Junga. On its deposit on 7th December, 2007, receipt was obtained which was deposited with MHC aforesaid. On analysis, the sample was found to have contained 33.07% W/W resin of the cannabis plant. After completing the investigation, Challan was presented in the Court for the trial of the appellant. - 3 - The case of the appellant was denial simplicitor and at the end of the trial he was convicted and sentenced as aforesaid, which is under challenge in this appeal. Ms. Ritta Goswami, learned Counsel for the appellant vehemently argued that there was non-compliance of Section 100(4) of the Code of Criminal Procedure and further that the sole independent witness of the prosecution did not support the case of the prosecution. There are contradictions in the statements of the official witnesses and the representative sample of the recovered stuff was not drawn, therefore, the impugned judgment of conviction and sentence is unsustainable. On the other hand, Shri J.S. Rana, learned Assistant Advocate General, fully supported the impugned judgment of conviction and sentence passed by the learned trial Court. I have gone through the record and reappraised the evidence. At the very outset I would like to say that the provisions of Section 100(4) of the Code of Criminal Procedure are not attracted in the present case. However, the police associated PW-1 Krishan Lal, independent witness, a shopkeeper, but during the trial he did not support the case of the prosecution in toto. It is settled law that the evidence of a hostile witness is not to be thrown straightway overboard, but it can be relied upon to the extent it helps the prosecution or the defence. Although, Krishan Lal aforesaid stated that he was a witness in six such types of cases, but he also stated that he was called by the police in the Police Station and where he was shown the bag which contained Charas and sampling process was completed in his presence. He also admitted having signed the documents and the arrest memo Ext.PW-1/A. In fact this Court - 4 - cannot close its eyes to what happens in trial of these types of cases. It would be difficult to conclude that where a Panch witness becomes scare or where he turns hostile, that he has done this of his own volition and the defence has no hand in it. I shall prefer not to observe anything further than this except to record that as a result such mischievous state of affairs, by defaults, the accused person should not be permitted to get an unfair advantage. It is under these circumstances while on guard, the Court has to scrutinize the prosecution evidence far more rigorously and find out on the basis of a very minute and rigorous examination as to whether that material is absolutely credible and strong enough to sustain the conviction. There is no allegation against PW-8 Sub Inspector Balwant Singh for falsely implicating the appellant with the ulterior motive. He categorically stated that the appellant was apprehended on the basis of suspicion as aforesaid. He gave the option to him to be searched either before the Gazetted Officer or before the Magistrate as it was his legal right. But in the present case, the recovery is from his bag tugged to his shoulder. Thus, the provisions of Section 50 of the Act would not be attracted. PW- 8 further testified that he rendered himself to be searched by the appellant in the presence of Constable Bhoop Singh and Krishan Lal and memo Ext.PB was prepared, which is admittedly signed by both of them, but nothing incriminating was found. Thereafter he checked the bag Ext.P1 which was in the possession of the appellant and he recovered 1 Kg.100 grams Charas which was in the shape of balls. He also testified that he separated two samples of 25 grams each, each were sealed with seal impression “A” and the bulk of recovered stuff was also sealed with the same seal. - 5 - Sample of the seal was taken on a piece of cloth separately and the case property was taken into possession vide seizure memo. He further stated that NCB form Ext.PW-8/E was updated on the spot and he sent Ruka for registration of the FIR through Constable Bhoop Singh. He prepared the site plan Ext.PW-8/C. The arrest memo was also prepared by him. It was also signed by both the witnesses. He further stated that the case property and the appellant were produced before PW-6 MHC Rajinder Singh, who was officiating as SHO at the relevant time. The case property was resealed by him with seal impression “H” and its sample was obtained on a piece of cloth Ext.PW-8/J. These facts were substantiated by the entries in daily diary. PW-6 MHC Rajinder Singh corroborated the version of PW-8 Sub Inspector Balwant Singh and further stated that one of the samples containing seal impressions of “A” and “H” was handed over by him to PW-5 Constable Kashmi Ram for its deposit in the Forensic Science Laboratory for analysis vide RC No.72 of 2007 Ext.PW-6/A, besides the said sample it also contained the sample seals of “A” and “H”, copies of FIR, seizure memo and NCB form in triplicate, which was deposited by him on 7th December, 2007 in the Laboratory and RC also contained the receipt of the Laboratory. Both these witnesses stated that so long the case property remained with them it remained intact. The hostile witness has admitted his signatures on the recovery, arrest and search memos, but according to him, he has signed these memos in the Police Post, whereas the Investigating Officer stated that he prepared these documents on the spot and Constable Bhoop Singh also stated that he signed these memos on the spot. In the absence of any allegation that the - 6 - police has any malice against the appellant it is difficult to believe that this quantity of Charas was planted upon the appellant in order to foist a false case against him. I also examined the statements of these witnesses meticulously with reference to the cross-examination of defence. No material contradiction has appeared on record to falsify or create a doubt on the prosecution story. The next contention that the sample was not representative capacity is also devoid of any merit, as Charas was in the shape of balls. According to Sub Inspector, Balwant Singh, he randomly took two samples of 25 grams each from the recovered stuff and was sealed on the spot, which goes to show that the sample so taken was of representative capacity specifically in view of the fact that the sampling process was not assailed in cross-examination of the witnesses nor it was the case of the appellant that the remaining bulk was not the alleged contraband. Therefore, in these circumstances, in my opinion, the statements of the official witnesses are confidence inspiring and were rightly acted upon by the learned trial Court. Since the quantity of the resin was found to be 33.07% which comes to 363 roughly 1/3rd of the total substance. It was less than the “commercial quantity”, as specified vide Notification No.S.O.1055(E), dated 19th October, 2001, issued by the Central Government, even though more than the upper limit of the small quantity fixed by the same Notification. Thus, the appellant was rightly punished under Section 20(B) of the Act for which no minimum sentence is prescribed. Insofar as the sentence part is concerned, it appears to be a little bit higher in view of the judgments of this Court in - 7 - Krishan Chand v State of Himachal Pradesh 2008(3) Shim.L.C. 119 and Rakesh Kumar v State of H.P. 2008(2) Shim.L.C. 28. Therefore, it is modified to the extent that the appellant shall undergo rigorous imprisonment for a period of three and half years (3½ years) and to pay a fine of Rs.25,000/- instead of five years and a fine of Rs.50,000/- as imposed by the learned trial Court, but however, in default of payment of fine as modified he shall further undergo simple imprisonment for a period of six months. He shall also be given the benefit of Section 428 of the Code of Criminal Procedure. Thus, while upholding the conviction, the sentence is modified to the above extent. Accordingly, the appeal is partly allowed. The learned trial Court is hereby directed to send the modified Jail warrant to the Superintendent of the concerned Jail in terms of this judgment/order. The appeal stands finally disposed of. April 20, 2010. (Surinder Singh),J. (rc)