IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 1 of 2011 Decided on : 03.11.2011 ________________________________________________ Tirath Ran and another ….. …Appellants. Versus State of Himachal Pradesh …Respondent. Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? 1Yes. For the appellants : Mr. N.K. Thakur, Advocate. For the respondent : Mr. P.K. Sharma, Addl. Advocate Gneral, with Mr. Anil Jaswal, Dy. Advocate General. ________________________________________________ V.K. Sharma, Judge. The appellants (convicts), who shall hereinafter be referred to as ‘the accused’ and denoted as A-1 and A-2, respectively, are in appeal against the judgment/order dated 31.12.2010, of conviction/sentence handed out by the learned Special Judge, Fast Track Court, Una, District Una, H.P., in Sessions Case No. 7/10, State vs. Tirath Ram and another, whereby, they were tried for the offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘the NDPS 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Act’), for unlawful possession of poppy husk weighing 4 kgs. 350 gms. and were ultimately convicted and sentenced to undergo rigorous imprisonment for five years each and to pay fine of ` 25,000/- each and in default further simple imprisonment for six months each was also ordered. 2. In brief, the case of the prosecution was that on 16.1.2010, at about 4.30 PM when a police party headed by SI Arshad Mohammad, Incharge, SIU, Una, was present at a place known as Bankhandi in District Una, H.P., on patrol duty, a scooter bearing registration No. PB-071-0915 was seen coming from Hoshiarpur side being driven by A-2 Tarsem Lal and A-1 Tirath Ram being the pillion rider. On suspicion the police signaled the scooter driver to stop at Harran Pul. While the police was about to check and search the scooter, both the accused tried to run away. However, they were overpowered by the police. On checking the scooter a bag was found kept near the brake. It was containing three plastic bags of poppy husk, which on weighing were found to contain poppy husk weighing 1 kg 700 gms., 1 kg. 750 gms and 900 gms, totaling 4 kgs. 350 gms. The recovered contraband was sealed with seal ‘O’ and taken into possession by the police vide memo Ex.PW- 3 1/A in the presence of C. Ranjit Singh and independent witness Rajiv Mohan. Seal impression Ex.PW-1/B and NCB Form Ex.PW-5/C were also prepared. Rukka Ex.PW- 5/A was prepared and sent to the police station for registration of a case, on the basis of which FIR Ex.PW-5/B was registered. The case property was re-sealed by PW-5 SI Baldev Ram with seal ‘T’, who also prepared seal impression Ex.PW-5/D. The recovered contraband was sent for chemical examination in its entirety and report Ex.PW-9/A was obtained, which is to the following effect:- “RESULT OF THE EXAMINATION Various scientific tests such as Colour tests, Chemicals test and Chromatographic analysis (TLC) carried out in the Laboratory with exhibit stated as poppy straw under reference gave positive results for the presence of Morphine, Codeine, Thebaine, Papaverine and Meconic acid. All the above tests identified the presence of Opium Poppy (Papaver somniterum) species in the exhibit stated as poppy straw. On the basis of above tests, the result thus obtained is given below: The exhibit stated as poppy straw is a sample of Poppy straw.” 3. On completion of investigation, the accused were sent up to face trial. On being charged, they pleaded not guilty and claimed to be tried. The 4 prosecution evidence followed. It examined as many as 14 witnesses. 4. On close of the prosecution evidence, the accused were examined under Section 313 Cr.P.C, wherein, they set up defence of total denial, innocence and false implication. However, they did not lead evidence in defence. 5. After hearing the prosecution and the defence the learned trial court proceeded to convict and sentence the accused, as already noticed. 6. I have heard the learned counsel for the appellants(accused) and the learned Addl. Advocate General with learned Dy. Advocate General for the respondent-State and gone through the record. 7. The gravamen of charge against the accused was for illegal joint possession of 4 kgs. 350 gms. poppy husk, which constituted quantity lesser than commercial quantity but greater than small quantity punishable under Section 15 (b) of the NDPS Act. 8. The impugned judgment of conviction dated 31.12.2010 and the consequent order of sentence of even date has been challenged on behalf of the defence mainly on the ground that in site plan Ex.PW-14/A, said to 5 have been prepared on the spot at the time of recovery of the alleged contraband from the scooter being driven by A-2 Tarsem Lal, on which A-1 Tirath Ram was the pillion rider, the quantity of recovered contraband vide marginal note No.1 is shown to be 2 kgs. 350 gms. However, later on this quantity was raised to 4 kgs. 350 gms. There is no explanation coming forth from the side of the prosecution to justify this variation. 9. Insofar as the contention on behalf of the defence is concerned, a bare perusal of site plan Ex.PW- 14/A would go to show that in marginal note No. 1 thereof it is specifically recorded that poppy husk weighing 2 kgs. 350 gms. was recovered from the scooter. However, in the recovery memo Ex.PW-1/A it is stated that in all 4 kgs. 350 gms. poppy husk was recovered from three plastic bags contained in a plastic ‘boru’ (small sack) each containing 1 kg. 700 gms., 1 kg. 750 gms. and 900 gms. Both these aspects being self contradictory cannot be reconciled. Furthermore in NCB Form Ex.PW-5/C the quantity is shown as 4 kgs. 350 gms. by overwriting on figure ‘4’. This aspect of the matter goes to the very root of the case. 10. Furthermore in extract of malkhana register Ex.W-8/B, whereby the case property was 6 deposited in the police malkhana, there is overwriting at two places qua the quantity of poppy husk contained in three plastic packets kept in a ‘Boru’. In the first packet quantity of poppy husk is shown as 1 kg. 700 gms. However, there is clear cut overwriting over figures depicting “700 gms”. Similarly, there is overwriting with regard to the weight of poppy husk contained in the second packet shown as “900 gms.”, wherein figure 9 clearly appears to have interpolated. This aspect of the matter coupled with the above variance in the quantity of the recovered contraband as shown in the site plan Ex.PW-14/A and NCB Form Ex.PW-5/C would cast a very serious doubt on the fairness of investigation carried out by the police in this case. On this ground alone the prosecution case cannot be said to have been proved against the accused beyond reasonable doubt. Thus the impugned judgment/order of conviction/sentence dated 31.12.2010, cannot be sustained. 11. In view of the above, the appeal is allowed and the impugned judgment/order of conviction/sentence dated 31.12.2010, is set aside entitling both the accused to acquittal, which is ordered accordingly. They shall be set free to their liberty unless required in any other process of law. The amounts of fine, if already deposited by the 7 accused, shall be liable to be refunded to them after expiry of the period prescribed for filing appeal against this judgment. (V.K. Sharma) Judge. 3rd November, 2011. Lsp*