IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 231 of 2009. Decided on: 21st April, 2010. _______________________________________________________ Rajesh Kumar ….Appellant. Versus State of HP ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Ramakant Sharma, Advocate. For the respondent : Mr. J.S. Rana, Assistant Advocate General. ____________________________________________________ SURINDER SINGH, J (Oral). Appellant has assailed his conviction passed by the learned trial Court under Section 20 of the Narcotic Drugs Psychotropic Substances Act, 1985, in short “the Act”, in Sessions Trial No.6 of 2009, decided on 26th June, 2009 whereby, he was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.20,000/- and in default of payment of fine to further undergo simple imprisonment for a period of six months. The period of detention undergone was ordered to be set off as per provisions of Section 428 of the Code of Criminal Procedure. In brief, the prosecution story can be stated thus. On 6th November, 2008, PW-3 ASI Krishan Chand was present at Police Check-Post, Bajaura alongwith HC Hari Singh, Constable Sanjeev Kumar, Constable Sanjay Kumar and Constable Kuldeep Kumar, to conduct the traffic checking. They had also put a Nakka there. Around about 10.00 PM, Haryana roadways bus bearing Whether reporters of the Local papers are allowed to see the judgment? - 2 - registration No.HR-55E-6213 came from Manali side and was on its way to Delhi. It was stopped for the checking of the passengers and their luggage. The police party entered the bus from the front door. Passengers were made aware of the fact that they alongwith luggage would be checked by them. ASI Krishan Chand aforesaid started checking the passengers from the front side in the presence of bus-conductor Satish Kumar. In the process of checking the passengers the said police Officer reached seat No.25 over which the appellant was sitting. The appellant was wearing blue coloured Jacket Ext.P2. He was also checked and the police Officer recovered two envelopes from the right pocket of the Jacket and two envelopes tied with cello-tape from the left side pocket of the Jacket. On opening it, ASI Krishan Chand discovered that it contained some black coloured substance, which was in the shape of Chapatis and sticks. The identity of the appellant was asked to which he disclosed. Besides the appellant, the seat was occupied by another passenger PW-2 Damodar Dass. Said Damodar Dass and the bus-conductor aforesaid were associated as witnesses. The recovered stuff was randomly tasted and it was smelling like cannabis mixture. It was weighed. It came out to be 650 grams. ASI Krishan Chand separated two samples of 25 grams from the recovered stuff. These samples were marked as ‘A-1’ and ‘A-2’. The samples were sealed with seal impression “T”. The remaining stuff, Ext.P.1, was also sealed with the same seal. Sample of seal was separately taken on a piece of cloth, Ext.PA. The police also took into possession Jacket, Ext.P.2. The case property was taken into possession vide memo Ext.PB on the spot, which was signed by the appellant also the aforesaid witnesses. Its copy was supplied to appellant free of - 3 - cost. Columns No.1 to 8 of NCB-1 form in triplicate were filled in, on the spot, one of which is Ext.PC. The police also took into possession bus-tickets Ext.PD, of the appellant vide memo Ext.PE alongwith currency notes of Rs.250/-. Ruka Ext.PH was sent for the registration of the case to Police Station, Bhuntar through Constable Mast Ram. Police prepared the site plan Ext.PJ with respect to the spot of recovery. The signatures of the appellant and those of the witnesses were also obtained on the parcels of the case property. The appellant was arrested. The grounds of arrest vide memo Ext.PK were intimated to him. Thereafter the appellant was brought to Police Station, Kullu where the appellant was put in the lock-up and thereafter ASI Krishan Chand returned to Police Station, Bhuntar alongwith the case property where he reached around 4.00 A.M. He produced three sealed parcels, NCB form No.1 in triplicate, sample of seal and other concerned documents before SI/SHO Narain Singh to satisfy the provisions of Section 55 of the Act. Said Shri Narain Singh affixed his seal “M” on each of the parcel and deposited the case property with PW-5 MHC Kartar Singh, who in turn deposited all these articles in the Malkhana and entry thereof was made against Sr. No.52. Abstract of the Malkhana register is Ext.PM. A special report was sent to the official superior within the stipulated time. On 10th November, 2008 one of the samples was sent alongwith NCB form, copy of seizure memo and the police docket to Forensic Science Laboratory, Junga for its analysis through PW-1 HHC Mast Ram vide RC No.57/08, copy whereof is - 4 - Ext.PB. After depositing the said sample HHC Mast Ram obtained the receipt on the RC (Ext.PG) and on return handed over to the MHC aforesaid. The sample was analysed in the Laboratory and the entire mass was found to be mixture of containing resin contents of 38.07% Weight in Weight. On the receipt of the report and after completing the Challan, the case was presented before the learned trial Court for the trial of the appellant. The appellant was charge-sheeted for the aforesaid offence. He adjured his guilt and claimed trial. To prove its case the prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure. The case of the appellant was simplicitor denial. According to him, the Charas was not recovered from his possession and he was falsely implicated in this case. The appellant was also called upon to enter into his defence, but no evidence in defence was led. After hearing the parties the learned trial Court convicted and sentenced the appellant as aforesaid, which is under challenge in this appeal. Shri Ramakant Sharma, learned Counsel for the appellant vehemently argued that there are material contradictions in the statements of PW-1 HHC Mast Ram and PW-3 ASI Krishan Chand with respect to the timing and further that there has been non-compliance of Section 50 of the Act and also that the sample tested did not stand connected with the alleged recovered stuff. He also submitted that there were two witnesses who were associated by the police at the time of sampling process and out of them PW- 2 Damdoar Dass turned hostile, whereas another witness Satish - 5 - Kumar, bus-Conductor was not examined. According to the learned Counsel, the learned trial Court did not appreciate the above contentions in its right perspective, which has caused material prejudice to the appellant. Contra, Shri J.S. Rana, learned Assistant Advocate General forcefully argued that the recovery of the alleged contraband stands proved from the possession of the appellant and the sample so analyzed stood properly connected and the link evidence is complete. Therefore, no error was committed by the learned trial Court while convicting the appellant. He further strenuously argued that it is a case of chance recovery and the provisions of Section 50 of the Act would not be applicable and also that it was not necessary to examine another Panch witness in view of the fact that Damodar Dass though turned hostile, has in so many words substantiated the case of the prosecution and otherwise also the statements of the official witnesses are worth inspiring confidence. Therefore, they were rightly relied upon by the learned trial Court. I have given my thoughtful consideration to the rival contentions of the parties and have closely examined and reappraised the evidence on record. PW-3 ASI Krishan Chand has corroborated the case of the prosecution in its entirety. He also identified Jacket Ext.P.2 which was worn by the appellant which contained Charas in pockets and on search four envelopes were recovered. He further testified that inner pockets of the Jacket were torn in such a manner so as to the packets could be adjusted in the inner side of the Jacket within clothe and fur. He also identified the recovered stuff Ext.P.1 and the sample Ext.P.3 and also the sample returned - 6 - by the Laboratory after analysis Ext.P.6, besides identifying the envelope with cello-tape Ext.P.4 and the Charas Ext.P.5. He categorically stated that after recovery the case property was taken into possession vide seizure memo which was signed by the witnesses aforesaid. There is unchallenged testimony of PW1 and 3 above qua the Jacket Ext.P.2 to be the same which was worn by the appellant from which the recovery of the aforesaid contraband was effected. Even in his statement under Section 313 of the Code of Criminal Procedure no explanation except denial was offered by the appellant. Further PW-1 HHC Mast Ram corroborated the statement of PW-3 ASI Krishan Chand. He also admitted that PW- 2 Damodar Dass having been associated by the Investigating Officer on detecting the contraband. He also identified the appellant during the trial in the Court. His testimony also remained unchallenged in the cross-examination. Both these witnesses categorically stated that the sample parcels and the remaining bulk and also the Jacket were sealed with seal impression “T” on the spot and one of the samples of the seal has been proved to be Ext.PA. Even PW-2 Damodar Dass, though turned hostile to the prosecution, is categorical in saying that the bus was stopped and checked by the police officials. Although, he stated that the bus reached around 9.45 PM at Bajaura whereas, PW-3 ASI Krishan Chand stated that the bus reached at 10.00 PM, but these contradictions are very minor in nature, in view of the fact that the story of checking the bus and recovery of the contraband from the possession of the appellant stands proved. Further, PW-2 Damodar Dass stated that the appellant was de-boarded from the bus by the police and nothing was recovered from his possession, - 7 - but significantly he admitted his signatures on seizure memo. If the appellant was de-boarded from the bus and the bus was allowed to go and he remained in the bus, then there was no occasion for him to sign the seizure memo. Not only this, the other documents, i.e., the taking into possession the documents of the bus and the arrest memo also do find the signatures of PW-2 Damodar Dass which have been proved by the Investigating Officer, which means that said Damodar Dass was associated during the entire proceedings conducted by the police in this case. Therefore, his statement that nothing was recovered from the appellant goes contrary to the statements of the official witnesses against whom no allegations have been imputed by the appellant and what was the motive to foist a false case upon the appellant. The recovery is proved. Once it is so concluded, it is then to be seen whether the link evidence stands proved insofar as the testing of the sample by the Laboratory is concerned to prove it contraband within the meaning of the Act. The Investigating Officer categorically stated that the case property was produced before PW-6 SI/SHO Narain Singh, which was resealed by him with seal impression “M” and alongwith all the documents the case property was deposited with PW-5 MHC Kartar Singh. He proved its entry in the Malkhana register. He also testified that one of the samples was sent through PW-1 HHC Mast Ram for analysis with NCB forms and seal impression etc., which fact has been substantiated by said HHC Mast Ram. He further stated that the sealed parcel was handed over in the Laboratory on the same day and its receipt was obtained which fact is also substantiated by the documents on record. Further, all these witnesses stated that so long the case property remained - 8 - with them it was intact. There is no breach in the link from the time of recovery of the contraband till its examination in the Forensic Science Laboratory. Therefore, the sample so analyzed stands properly connected with the recovered stuff. In view of the proved facts and circumstances, it was a chance recovery, therefore, provisions of Section 50 of the Act would not be attracted. I do not find any error in the judgment of conviction and sentence passed by the learned trial Court. Therefore, the appeal is without merit, hence dismissed. April 21, 2010. (Surinder Singh),J. (rc)