IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 458/2008 Reserved on: 2.3.2010 Decided on: 4.5.2010 _____________________________________________ Shami Kaushal. …Appellant. Versus State of Himachal Pradesh. …Respondent. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 yes For the Appellant : Mr. Chaman Negi, Advocate. For the Respondent: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. ____________________________________________________ Rajiv Sharma, J. This appeal has been directed against the judgment dated 9.7.2008 passed by the learned Special Judge, Fast Track Court, Solan in case No. IFTC/7 of 2008 whereby the appellant has been convicted under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and has been sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 15,000/- under section 21 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. In default of payment of fine, 1 Whether reporters of the local papers may be allowed to see the judgment? . yes 2 he has been ordered to undergo imprisonment (rigorous) for one year. Case of the prosecution, in a nutshell, is that Inspector Ramesh Sharma (PW-9) accompanied by ASI Ashok Rana (PW-10), HC Mansa Ram, HC Hardev, Constables Dinesh and Sanjeev was on patrolling duty and when the patrolling party reached near M.C. Complex, Circular Road, Solan saw one person, who on seeing the police party, got frightened and entered into the shop. He was apprehended. He disclosed his name as Shami Kaushal, Shopkeeper of Shop No. 156, Circular Road, Solan. The police associated two witnesses Amul Kumar (PW-2) and Het Ram (PW-7). The accused was informed if he desired he could be searched in the presence of a Magistrate or Gazetted Officer. A memo was prepared and thereafter accused Shami Kaushal consented to be searched by the PW-10. His search was carried out in the presence of witnesses. One purse was found in right side pocket of his pants on the back side and in the purse one pocket diary blue in colour alongwith visiting card, PAN card, two aluminium foils were also found. In the pages of the diary, four polythene packets were found containing brown powder. The packets so recovered were mixed and two packets were prepared and weighed. One packet weighed 6.21 grams and another packet weighed 5.16 grams. Thus, 11.37 grams heroin/smack was found. The packets were put in cloth parcels and sealed with three seal impressions ‘A’. The other articles recovered were also put in a packet and the same were sealed 3 likewise. Samples of seal were separately taken on three cloth pieces and the seal after use was handed over to witness Het Ram (PW-7) after putting the facsimile impression on NCR-1 form, which was also filled on the spot. The recovered contraband taken into possession vide memo Ex.PW-1/D also bore the signatures of witness Het Ram (PW-7) and Amul Kumar (PW-2) as well as the signatures of accused Shami Kaushal. The rukka Ex.PW-1/E was prepared on the spot and it was sent to police station for registration of case through constable Dinesh Kumar (PW-1). PW-9 Ramesh prepared the inventory list Ex.PW-9/A and the documents as detailed in the inventory were handed over to the Investigation Officer. PW-9 filled Ex.PW-9/B i.e. NCR-1 form. He deposited the case property with MHC Sunil Kumar (PW-4) Incharge Malkhana alongwith Ex.PW-9/B in triplicate sample of seal. The sample was sent to FSL on 16.11.2007 by MHC. The FLS report is Ex.PW-9/C. Thereafter the challan was put up after completing all the codal formalities. Prosecution examined as many as ten witnesses in support of charge. The accused was examined under section 313 of the Code of Criminal Procedure. His defence is of simplicitor denial. The learned trial court convicted and sentenced the appellant, as noticed hereinabove. Mr. Chaman Negi appearing vice counsel on behalf of the appellant has restricted his arguments only to a short question that the quantity of contraband recovered from his client was less than small quantity. He has further contended that the total 4 contraband recovered from his client was 11.37 grams and as per the report of the FSL, the same contained diacetylmorphine (heroin) 36.94 W.W. and thus the total quantity comes to 4.200078 grams. In view of this he further contended that his client could be convicted and sentenced only under section 21 (a) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Mr. Rajinder Dogra, learned Additional Advocate General has supported the judgment of the trial court dated 9.7.2008. I have heard the learned counsel for the parties and perused the record carefully. The total contraband recovered from the petitioner was 11.37 grams. According to report of the Forensic Science Laboratory, the same contained diacetylmorphine (heroin) 36.94% W.W. PW-1 Dinesh Kumar has stated that he alongwith SHO Ramesh Sharma (PW-9), ASI Ashok Rana (PW-10), HC Mansa Ram, HC Hardev and constable Sanjeev Kumar was on patrolling duty in Solan town on 15.11.2007. He further stated that the patrolling party was going from Circular Road Chowk Bazar and when it reached near M.C. Complex, Circular Road at about 4.00 P.M., the accused, who was standing in front of his shop, on seeing the patrolling party ran to his shop. He was apprehended and he disclosed his name as Shami Kaushal. Two witnesses, i.e. Het Ram and Amul Kumar were called. Since the accused was to be searched, SHO Ramesh Sharma and other witnesses gave their personal search to the accused and memo Ex.PW-1/A was prepared. SHO gave option to the accused in whose 5 presence he would like to be searched either a Magistrate or Gazetted Officer. Memo Ex. PW-1/B was prepared. The accused consented, in writing, to be searched by the SHO. He was searched and the contraband was recovered from him. Memo Ex.PW-1/C was prepared. The powder was taken out of the two packets and put into two remaining packets. One packet according to PW-1 weighed 6.21 grams and another weighed 5.16 grams (total 11.37 grams). Each packet was sealed as per the procedure and specimen seal impression was taken separately and thereafter it was handed over to PW-7 Het Ram. The contraband was taken into possession through memo Ex.PW-1/D. PW-2 is Amul Kumar. He has not supported the case of the prosecution. PW-3 is Rakesh Kumar. He deposited the sample with FSL, Kandaghat. PW-4 is HC Sunil Kumar. He has stated that on 15.11.2007, PW-9 Ramesh Sharma gave him three packets sealed with seal “A”. Each packet contained three seals. He then stated that one packet weighed 5.16 grams and another weighed 6.21 grams and third parcel contained diary and other articles. He recorded the material in register and kept the same in Malkhana in safe custody. The parcel contained 5.16 grams smack alongwith NCR-1 form, copy of seizure memo, specimen impression of seal ‘A’ and docket copy of FIR was handed over to Rakesh for depositing the same with the FSL, Junga vide RC No. 179/07. He also stated that so long the property remained in his possession, it was not tempered. He has also produced 6 Malkhana register. PW-7 Het Ram has also not supported the case of the prosecution and was declared hostile. PW-9 is Inspector Ramesh Sharma, who was heading the patrolling party on 15.11.2007. According to him, he alongwith ASI Ashok Rana, HC, Mansa Ram, HC Hardev and constables Dinesh and Sanjeev was on patrolling duty. One person on seeing them, tried to escape. He was apprehended. He disclosed his name as Shami Kaushal. Two independent witnesses Het Ram (PW-7) and Amul Kumar (PW-2) were associated. Memo Ex.PW-1/B was prepared. The search of the accused was conducted. During search, one leather purse brown in colour was found from back packet of right side of his pants. Purse was opened. A pocket diary was found. In the diary, between the pages four packets were found containing brownish powder. Memo Ex.PW-1/C was prepared. Four packets were mixed together and divided in two parcels and all these were put in plastic packets. Their weight was 5.16 grams and 6.21 grams, respectively. These were sealed as per procedure and thereafter rukka was prepared on the basis of which FIR was registered. He deposited the case property with MHC Sunil Kumar Incharge Malkhana alongwith Ex.PW-9/B in triplicate sample of seal. PW-10 Ashok Rana was also member of the patrolling party. He has supported the version of PW-9 the manner in which the accused was intercepted and the contraband was recovered from him. This is the evidence led by the prosecution. 7 The sample was sent to FSL, Junga and report Ex.PW-9/C- 1 alongwith clarification report Ex.PW-9/C-2 was received from FSL, Junga. According to chemical examination report, diacetylmorphine (heroin) was detected in Ex.P-1 and the percentage of diacetylmorphine (heroin) was found 36.94% W.W. (Ex.PW-9/C-1). The weight of the sample sent vide Ex.P-1 was 5.16 grams. However, on weighing the same in the laboratory, it was found 4.938 grams. The total contraband seized from the accused was 11.37 grams and it was only found to have diacetylmorphine (heroin) 36.94% W.W. Accordingly, the quantity of heroin recovered from the possession of the appellant was only 4.200078 grams and the same is less than 5 grams and it will amount to small quantity, as notified. The prosecution has only proved that the appellant was found in possession of 4.938 grams of heroin. Accordingly, the appellant could not be convicted and sentenced under section 21 (b) of the Narcotic Drugs and Psychotropic Substance Act, 1985, but has to be convicted and sentenced for the commission of offence under section 21 (a) of the Narcotic Drugs and Psychotropic Substance Act, 1985, for which maximum punishment is six months and fine not exceeding Rs. 10,000/-. Therefore, for the foregoing reasons, the sentence of the appellant is required to be reduced for a maximum provided for the offence under section 21 (a) of the of the Narcotic Drugs and Psychotropic Substance Act, 1985, i.e. rigorous imprisonment for a period of six months and a fine of Rs. 10,000/- and in default of 8 payment of fine to further undergo simple imprisonment for a period of one month. Thus, ordered accordingly. The appeal stands partly allowed. The appellant/accused is in jail/detention from the date of conviction, i.e. 9.7.2008 till today. He has already served the sentence. Accordingly, he is directed to be released from jail immediately, if not required in any other case subject to deposit of fine amount of Rs. 10,000/- with the trial court within a period of two weeks from today. In case he does not deposit fine amount of Rs. 10,000/-, he shall undergo simple imprisonment for a period of one month. The Registry is directed to send the amended jail warrants to the Superintendent, Model Central Jail, Kanda (Shimla) where he is serving out the sentence. The appeal stands disposed of. Send down the records. (Rajiv Sharma), J 4.5.2010 *awasthi*