IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A.No. 3/2009. Decided on:27.5.2009. _____________________________________________ Balak Ram. …..Appellant. Versus State of H.P. …Respondent. Coram: Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?No.. For the appellant :Mr. Anup Chitkara, Advocate. For the respondent :Mr.J.S.Guleria, Assistant Advocate General. ___________________________________________ SURINDER SINGH,J(Oral): The appellant was convicted by the learned trial Court, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’ allegedly keeping in his possession 475 grams of Charas. As such, he was sentenced to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.40,000/-, and in default of payment of fine, the appellant was further ordered to undergo simple imprisonment for a period of six months. The benefit of Section 428 of the Code of Criminal Procedure was also given. The appellant has challenged his conviction and sentence in this appeal. Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 I have heard the learned counsel for the parties and have reappraised the evidence on record. In brief, the prosecution case is that on 11.10.2007 at about 7 a.m., Head Constable Hari Singh was present near “Bheling Darrah” in connection with patrolling duty and detection of the crime. The appellant came from village Malana side on foot. On seeing the police party, he got perplexed and tried to flee away from the spot towards the jungle side. When he was asked to stop by H.C.Hari Singh, the appellant skipped away. Thus he was chased by the police party and apprehended at a distance of about 500 mtrs in the forest. The police entertained suspicion that he might be having contraband and asked about the identity. Since it was a secluded place, no independent witness was available. Thus, H.C.Hari Singh (PW2) associated Constable Sanjit Kumar and Constable Sanjeev Kumar as witnesses in the case. The accused was apprised about his legal right to be searched in the presence of Magistrate or Gazetted Officer on which he opted to be searched by the police party present there. To this effect a memo Ext. PA was prepared on the spot which was singed by him and also the witnesses aforesaid. Thereafter H.C.Hari Singh (PW2) rendered himself to personal search to the appellant but nothing incriminating was found in his possession and memo Ext.PB to this effect was prepared. Then Head Constable aforesaid conducted the personal search of the appellant and recovered one polythene envelope containing 475 grms. Charas in the shape of ‘chapattis’ (flakes) from the inner right pocket of the jacket worn by him. Two samples 3 of Charas 25 grams each were separated from the recovered bulk and sealed with seal impression ‘V’. The N.C.B forms in triplicate were filled on the spot by S.I.Mohinder Kumar which is Ext.PE. The sample of Charas was also taken, on a piece of cloth Ext.PC. Seal after its use was handed over to Constable Sanjeev Kumar and the case property was taken into possession vide memo Ext.PD. Rukka Ext.PF was prepared on the spot and handed over to Constable Sh. Sanjit Kumar with a direction to hand over the same at Police Station, Manali. PW2 H.C.Hari Singh prepared the site plan Ext.PG of the place of occurrence and recorded the statements of the witnesses on the spot under Section 161 Cr.P.C. The appellant was arrested at 10.35 a.m. He was apprised of the grounds of arrest. The memo Ext.PH to this effect was prepared. The appellant along with the case property was produced before S.I. Mohinder Kumar (PW7) at Police Station, Manali. Said Sh.Mohinder Kumar resealed the case property with seal impression ‘A’. Thereafter it was deposited with M.H.C.Hem Raj (PW-4) in the Malkhana, Manali. The extract whereof is Ext.PL. On 15.10.2007 one sealed sample of Charas, N.C.B forms in triplicate, recovery memo, copy of F.I.R. and samples of seal impressions’ A’ and ‘V’ were sent through Constable Mohinder Pal vide R.C.No. 161/2007 for its examination to F.S.L. Junga. After depositing the samples in the laboratory, its receipt Ext.PN 4 was obtained and handed over to MHC Hem Raj in Police Station, Manali. The special report was sent to the Dy. S.P. Sh.Ahmad Sayeed within the statutory time. The samples were examined in the laboratory. The report Ext.PK revealed that the sample sent for analysis was that of Charas. After completing the challan the case was presented in the Court for trial of the appellant. Finding a prima facie case against the appellant under Section 20 of the ‘Act’, he was accordingly chargesheeted. The appellant pleaded not guilty and claimed trial. To prove its case the prosecution examined its witnesses and the appellant was also examined under Section 313 Cr.P.C. He denied the recovery of the Charas from him and raised the defence that he was falsely implicated in this case. To prove his plea he did not lead any evidence in defence. At the end of the trial he was convicted and sentenced as aforesaid which has been assailed in this appeal. Sh. Anup Chitkara, learned counsel for the appellant contended that the appellant was not apprised of his right, in terms of Section 50 before conducting the search by the police and also that the evidence of the prosecution is contradictory not inspiring confidence. He further urged that in any case the recovery stands proved, the appellant could not be held guilty for the possession of 475 grams of Charas alleged to have been recovered from him. He made a reference to the statement of the Investigating Officer and submitted that the alleged stuff was in the shape of flakes and the sample taken by the Investigating Officer was not a representative 5 sample and at the worst the appellant can only be held guilty to the extent of 25 grams of Charas which was tested positive by the laboratory Sh. J.S.Guleria, learned Assistant Advocate General while supporting the impugned judgment of conviction and sentence argued that the option was given to the appellant in terms of Section 50 of the Act and to this effect a document was also executed in the presence of the witnesses which was also signed by the appellant. The appellant voluntarily subjected himself to search to the police party and it was thereafter the recovery was effected. He further argued that the evidence of the prosecution is consistent and believable. The recovery of the Charas stands proved by the prosecution witnesses. There is no contradiction in their statements. Therefore, the impugned judgment of conviction and sentence cannot be interfered with. I have given my thoughtful consideration to the above contentions and have carefully gone through the evidence on record. It is proved on record that the movement PW2 Head Constable Hari Singh became suspicion regarding possession of the contraband by the appellant; he immediately gave an option to the appellant to be searched before the Magistrate or the Gazetted Officer. He testified it on oath that he also informed the appellant that it was his legal right which fact has not been assailed in the cross-examination. Pursuant to the aforesaid option, the appellant gave his consent to be searched by the police party present there and it was thereafter the said Head Constable conducted his search on the spot which has also not been 6 challenged in his cross-examination. Therefore, in these circumstances, in my opinion, there is no breach of Section 50 of the ‘Act’ and no prejudice has been caused to the appellant and there has been a proper compliance of the said provisions. In so far as the recovery is concerned, a reference can be made to the statement of PW2 Head Constable Sh.Hari Singh. It was a secluded place and no independent witnesses were available. Since the recovery was effected from the open place from the possession of the appellant, there is no legal requirement of inclusion of the independent witnesses but if the witnesses are available it further lends corroboration to the statement of the official witnesses, On the close scrutiny of the statements of the official witnesses referred above, I find it worth inspiring confidence and they have corroborated the fact of the recovery as alleged in the prosecution case. PW2 aforesaid has stated that the Charas was in the shape of ‘Chapattis’ (flakes) when recovered from the inner right pocket of jacket worn by the appellant. He also stated that two samples of Charas of 25 grams each were separated and sealed in separate parcels. He further clarified in his cross-examination that the recovered stuff which was in the shape of ‘Chapattis’ was not counted by him and he drew the sample of some of the ‘Chapattis’ recovered. After doing the needful the case property was produced before S.I. Mohinder Kumar who also re-sealed the sample as well as the remaining stuff with his seal and handed over the same to M.H.C. Hem Raj. Out of the two samples, one sealed sample was sent through Constable Mahender Pal (PW3) 7 for its examination to F.S.L.Junga which was deposited by him in the laboratory. On his return its receipt was handed over to MHC Hem Raj. The sample was examined in the laboratory and it was t found to be that of Charas. Further the statement of H.C.Sh. Hari Singh with respect to the recovery stands corroborated by PW1 Constable Sanjit Kumar and both these witnesses were subjected to be lengthy cross-examination but nothing material could be extracted from them. On the close scrutiny of the aforesaid evidence, I do not find anything doubting the official witnesses with respect to the recovery. But, in the instant case neither the Investigating Officer nor the alleged witnesses stated about making the recovered stuff homogenous before drawing the samples. Whereas it is clear from the statement of PW2, Investigating Officer that he drew two samples of Charas of 25 grams each randomly and sealed by him. In Mr.Gaunter Edwin Kirchar vs. State [AIR 1993 SC 1456], the accused was arrested with two pieces of charas weighing 7 gms. and 5 gms. respectively and only one piece was sent for chemical analysis and the said piece was found to have been less than 5 gms. Considering these facts, the Supreme Court observed that from the report of the chemical analyst it could not be presumed or inferred that the substance and the other piece weighing 7 gms, which was not sent for analysis also contained Charas and it was further observed that it had to be borne in mind that the act applied to certain Narcotic drugs and psychotropic substances and not to all kind of intoxicating substances and in any event, in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it would not be 8 safe to hold that the prosecution could prove that 12 gms. of Charas was recovered from the accused. The Supreme Court thus held that the prosecution could prove positively that the Charas weighing about 4.57 gms. was recovered from the accused and the failure to send the other piece had given rise to that inference. The Supreme Court also noted that in order to obviate this difficulty the concerned authorities would do better if they sent the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized and if it not practicable in a given case to send the entire quantity then sufficient quantity by way of samples from each of the sticks recovered should be sent for chemical examination under a regular Panchnama in accordance with law. Mr. Gaunter Edwin Kircher’s Judgment of the apex Court was followed by the learned single Judge of Bombay High Court (Goa Bench) in Javed Bhat V/S U.O.I. {2008(1) RCR (criminal) 57} and also by the Division Bench of the same court in Firdous Ahmed V/S U.O.I. Cr.Appeal No:66 of 2006 decided on 7.8.2007 {2008 Crl.L.J. (NOC) 1163 (Bom.)} wherein the recovery of 1.35 KG. Hashish was made from the accused comprising of numerous cigar flats and flat slabs. The sample material was taken 705 gms. randomly on analysis was positively tested. The remaining bulk was not analyzed. Thus the accused was given the benefit of doubt that the remaining bulk was not Hashish and the accused was held guilty only of 705 gms. of Hashish as having been conclusively proved, thus his conviction was altered to one under section 20(b)(ii)(B) of the Act. 9 The above judgments have also been followed by this court in Criminal Appeal No.650 of 2008 titled Krishan Chand v. State of H.P. decided on 27th April, 2009. As stated above, in the instant case, the prosecution could only prove beyond doubt that the appellant was found in his possession of 25 grams of Charas as per the report Ext.PK which is admittedly a ‘small-quantity’. The remaining stuff which was in the shape of ‘Chapattis’ (flakes) as stated above were not sent for analysis, more specifically when it was not in the shape of one mass, therefore, it cannot be said as to what the remaining stuff many in numbers in the shape of ‘Chapattis’ had contained. The samples taken were not proved to be of a representative character. Once this conclusion is arrived at, it follows that the appellant cannot be convicted and sentenced under Section 20 (b) (ii) (B) of the ‘Act’ but has to be convicted and sentenced for the commission of the offence punishable under Section 20(b) (ii) (A) of the ‘Act’ for which the maximum punishment provided is Six months and fine not exceeding Rs.10,000/- Therefore, for the aforesaid reasons, the sentence of the appellant is required to be reduced to maximum provided for the offence under Section 20(b) (ii) (A) of the ‘Act’ i.e. Rigorous Imprisonment for a period of six months and to pay a fine of Rs.10,000/- and in default to pay the fine, to further undergo simple imprisonment for a period of one month fifteen days. Thus, ordered accordingly. The appeal stands partly allowed. The accused-appellant remained in jail/detention w.e.f. 11.10.2007 to 27.10.2007 for 17 days during the trial of the case and after conviction w.e.f. 18.11.2008 till today i.e. 27.5.2009 10 which comes 191 days and total 208 days i.e. six months and 28 days. He is yet to serve sentence for 17 days more for non payment of fine i.e. up to 13th June, 2009. In case the appellant does not deposit the proportionate fine amount, he shall be released from jail on 14th June, 2009 if not required in any other case. The Registry of this Court is directed to send the amended jail warrants to the Superintendent, Model Central jail, Nahan where he is serving out the sentence. The appeal stands disposed of. Send down the records. (Surinder Singh), Judge. May 27,2009(R)