Crl. Appeal No.D-436-DB of 2006 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.D-436-DB of 2006 Date of Decision :29.08.2011 Dhuran Shah s/o Shiv Narain ... Appellant Versus State of Haryana .... Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr. Sameer Sachdeva, Advocate (Amicus-Curiae) for the appellant. Mr. Pardeep Singh Poonia, Addl. A.G., Haryana, for the respondent-State. -- Vijender Singh Malik, J. Dhuran Shah has preferred this appeal against the judgment dated 06.03.2006 passed by Special Judge, Panipat, convicting him for an offence punishable under section 20 of the Narcotic and Psychotropic Substances Act, 1985 ( for short 'the Act' ) and the order of sentence of the same date, vide which he has been sentenced to undergo rigorous imprisonment for a period of 13 years and to pay a fine of Rs.1,50,000/-, with further rigorous imprisonment for 3-1/4 years in default of payment of fine. The case of the prosecution against the appellant is as under:- Crl. Appeal No.D-436-DB of 2006 --2-- On 26.08.2005, ASI Ram Phal was present at the Police Booth, located at Old Bus Stand Samalkha in connection with crime detection. In the meanwhile, a bus belonging to Punjab Roadways came there from the side of Delhi. The appellant alighted from the said vehicle. He was holding a bag of blue colour. He started moving towards Railway Road Samalkha. On suspicion, he was stopped. On inquiry, he disclosed his identity. ASI Ram Phal told him about his suspicion that the appellant was carrying some contraband in the bag. ASI Ram Phal then served the appellant with a notice under section 50 of the Act giving him the option of search before some Gazetted Officer or Magistrate. The appellant, however, reposed confidence in ASI Ram Phal and offered the search to him. He opted against his search before Magistrate or a Gazetted Officer. A memo in this regard was prepared, which was signed by the appellant and attested by the witnesses. In the search that followed, the bag was found containing charas, wrapped in a green polythene paper. On weighing, it was found to be 2 kilograms and 250 grams. ASI Ram Phal drew two samples of 50 grams each from the recovered contraband. The same were put in two separate plastic containers. The remainder was put in an another plastic container. They were given the shape of parcels and were sealed with the seal bearing impression 'RP'. The samples and the remainder alongwith the bag were taken into possession by way of recovery memo. After use, Crl. Appeal No.D-436-DB of 2006 --3-- the seal was handed over to HC Hari Parkash. Rough site plan of the place of occurrence was prepared. A writing containing the aforesaid facts was sent to Police Station Samalkha through Randhir Singh, Constable, on which FIR was recorded by Rajender Singh, ASI/SHO, Police Station Samalkha. Rajender Singh, SHO came to the place of recovery. The accused alongwith the case property and the witnesses were produced before the SHO, who had verified the investigation of this case and affixed his seal 'RS' on the samples and the remainder parcels. He had directed Ram Phal, ASI to deposit the case property with the Moharrir Head Constable. Then Ram Phal, ASI deposited the case property with the MHC. He had also recorded the statements of some witnesses. Rajbir Singh, ASI/SHO had forwarded information under section 57 of the Act to the higher authorities. On 27.08.2005 the accused was produced before the Duty Magistrate at Panipat. The case property alongwith photographs of the same was produced before him. The Duty Magistrate passed orders of destruction of the case property. The case property was then destroyed in the presence of Executive Magistrate, Samalkha on 29.08.2005. On receipt of the report of Chemical Examiner and on completion of the investigation, challan against the appellant was prepared. Charge was framed against the appellant for an offence punishable under section 20 of the Act vide order dated Crl. Appeal No.D-436-DB of 2006 --4-- 05.10.2005. The appellant pleaded not guilty to the same and claimed trial. The prosecution has examined seven witnesses in all at the trial. Tendering the report of Forensic Science Laboratory, the evidence of the prosecution came to a close. The appellant was examined thereafter in terms of section 313 of the Code of Criminal Procedure in which he denied the truth of the prosecution evidence put to him in the shape of questions. He has claimed the witnesses to be deposing falsely. He has claimed himself to be innocent and to have been falsely implicated. He did not lead any evidence in his defence. Hearing learned Public Prosecutor for the State and learned counsel for the defence, learned Special Judge, Panipat, has found the appellant guilty for the offence punishable under section 20 of the Act, vide judgment dated 06.03.2006. Hearing on quantum of sentence was given on the same day and the sentence detailed as above was awarded to the appellant. Dissatisfied with the aforesaid judgment of conviction and order of sentence, the appellant has preferred this appeal. We have heard Mr.Sameer Sachdeva, Learned Amicus-Curiae for the appellant and Mr. Pardeep Singh Poonia, learned Addl. A.G.,Haryana for the respondent-State and have gone through the record of the case with their assistance. Crl. Appeal No.D-436-DB of 2006 --5-- Mr. Sameer Sachdeva, learned Amicus-Curiae has submitted that the recovery has been effected at a busy place i.e. bus stand of Samalkha. According to him, recovery is of day time and there would be people available in plenty at that place. According to him, the Investigating Officer did not associate even a single person in the proceedings of search and seizure. He has submitted that non-joining of independent witness when some were available would make the statements of the officials witnesses doubtful. Learned Amicus-Curiae for the appellant has further submitted that the report of Chemical Examiner Ex.PC does not give the percentage of Tetrahydrocannabinol, Cannabinol and Cannabidiol in the sample. According to him, unless the percentage of the same is mentioned in the report, it cannot be said that the entire material recovered from the appellant had been charas. He has submitted that if the chemical examiner would have mentioned the percentage of the aforesaid components, then the quantity of charas could have been reduced to small quantity for which the punishment could have been lesser. The last submission made by learned Amicus-Curiae is that the punishment awarded to the appellant is on higher side. According to him, there is nothing on the record to justify awarding of punishment beyond the minimum one prescribed for Crl. Appeal No.D-436-DB of 2006 --6-- the offence. He has, therefore, prayed for reducing the sentence in case the judgment of conviction is upheld. On the other hand, learned Additional Advocate General, Haryana, has submitted that no person who can be said to be really independent likes to join the investigation conducted by the police. According to him, none is there in the society who has spare time for such things. He has submitted that non-joining of independent witness would not ipso facto throw out the prosecution case. According to him, there must be some reason for discarding the statements of official witnesses as unreliable. He has further submitted that ASI Ram Phal is shown to have no connection with the appellant. According to him, the appellant is a resident of Bihar and it is not his case that he had been staying somewhere in an area falling within the territorial jurisdiction of Police Station Samalkha. He has submitted that the appellant has not stated anything in his statement recorded under section 313 of the Code of Criminal Procedure as a reason for his false implication. According to him, though he has stated that nothing has been recovered from his possession and that he has been falsely implicated in this case by the police, he has failed to give any reason to make this plea plausible. He has further submitted that the report of the Assistant Chemical Examiner clearly mentions that the material analysed by him, was charas. According to him, in case of charas, the percentage of the constituents is not Crl. Appeal No.D-436-DB of 2006 --7-- to be specified. He has further submitted that the recovered material weighed 2 killograms and 250 grams and by no calculation this quantity can be reduced to small quantity. He has submitted that the trial court in its judgment has found the sentence awarded to the appellant as the appropriate sentence and there is no reason to interfere with the same also. It is correct that no independent witness has been joined in the proceedings of search and seizure by ASI Ram Phal, PW-3. It was a chance encounter between the investigating officer and the appellant at Bus Stand, Samalkha. The Investigating Officer has stated in his cross-examination that he had made efforts to join public witnesses in the investigation but they had expressed their inability to do so. He has admittedly not taken any action against them, nor noticed their names and addresses. Names and addresses of persons of public are to be noticed only when proceedings are to be initiated against them. This attitude of non-joining the investigation on the part of public is very much evident now a days. It is difficult to proceed against all for such refusals to join the investigation. For disbelieving the official witnesses, there must be some reason. Mere failure to join independent witness should not be taken as a ground for disbelieving the official witnesses. There must be some reason other than that for discarding the testimony of the official witnesses. We could not find any such reason in this Crl. Appeal No.D-436-DB of 2006 --8-- case. The appellant is a resident of Bihar and nothing has come either in the cross-examination of the Investigating Officer or in the statement of the appellant recorded under section 313 of the Code of Criminal Procedure, which can provide justification for doubting the statements of the official witnesses. The recovery of charas is moreover in a heavy quantity and it cannot be believed that charas in this quantity could be planted on a person with whom the Investigating Officer had no previous contact. So in these circumstances, we find that the prosecution case cannot be held doubtful for non-joining of independent witness. The Assistant Chemical Examiner, in his report Ex.PC has mentioned about his conducting tests and finding the test to be positive for the presence of Tetraphydrocannabinol, Cannabinol and Cannabidiol in the sample. He also found the characteristics of trichomes present in the sample. The final opinion in this regard was that the sample was identified as charas. If the appellant wanted to set up a defence that the percentage of the aforesaid components is not mentioned in the report of Assistant Chemical Examiner and the entire material recovered cannot be said to be charas, then the Court should have asked to call him in the witness box for being cross-examined on this aspect. It was not done in this case. The table appended with the Act specifying small and commercial quantities deals with cannabis at entry no.23 Crl. Appeal No.D-436-DB of 2006 --9-- and the item Tetrahydrocannabinol at entry no.150. While in entry no.23 the small quantity is mentioned as 100 grams and commercial quantity is 1 KG, in item no.150 the small quantity is 2 grams and commercial quantity is 50 grams. Learned Amicus- Curiae could not support his submissions in this regard with any provisions of the Act or any decided case. Therefore, no benefit can be extended to the appellant in this regard. It is a case where the search had been conducted by ASI Ram Phal. It is not conducted in the presence of a Gazetted Officer or Magistrate. Though, no argument has been advanced on the validity of the option given by ASI Ram Phal to the appellant, yet the recovery having been effected from the bag, the provisions of section 50 of the Act would not apply to it. The said provision applies only to cases of personal search as is held by Hon'ble Supreme Court of India in Jarnail Singh v. State of Punjab, 2011 Crl.L.J.1738. For the aforesaid reasons, we find no justification for interfering with the judgment of conviction of the appellant. Therefore, the same is upheld. We, however, find that the sentence awarded to the appellant is on higher side. There is no exceptional circumstance available in this case in which the sentence beyond the minimum prescribed for the offence should have been awarded. Therefore, we partly allowed the appeal by modifying the sentence to rigorous imprisonment for a period of Crl. Appeal No.D-436-DB of 2006 --10-- 10 years and to pay a fine of Rs.1,00,000/-, in default of payment of which, to further undergo rigorous imprisonment for a period of one year. ( HEMANT GUPTA) (VIJENDER SINGH MALIK) JUDGE JUDGE 29.08.2011 dinesh