IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 303 of 2007. Judgement reserved on: 25.6.2008. Date of decision: July 21, 2008. Chaman Lal ….. Appellant-accused. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. J.R.Poswal, Advocate. For the Respondent : Mr. Ansul Bansal, Additional Advocate General. Kuldip Singh, Judge. The accused has filed this appeal against the judgement dated 16.8.2007/ 21.8.2007 passed by learned Special Judge, Bilaspur in Sessions Trial No. 6 of 2006 convicting the accused under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act) and sentenced him to undergo rigorous imprisonment for eight years under Section 20 of the Act and to pay fine of Rs.1,00,000/-, in default of payment of fine, to suffer further simple imprisonment for two years. 2. The prosecution case in brief is that on the intervening night 12/13.5.2006, PW 11 SI Mool Raj alongwith PW 10 HHC Dhani Whether the reporters of the local papers may be allowed to see the Judgment? …2… Ram and PW 1 HHC Nasib Khan was on general patrol/ nakka duty. At about 12.15 a.m. (13.5.2006) when they had laid a nakka on National Highway 21 near the gate of Police Station, Sadar Bilaspur, bus bearing registration No. HP -42-0378 belonging to Himachal Road Transport Corporation (HRTC), Keylong depot was signalled to stop and thereupon the bus stopped. The bus was checked by the nakka party. At the time of checking PW 11 SI Mool Raj noticed that a passenger who was sitting on seat No. 14 on seeing the nakka party tried to push his bag under the seat, which he had kept between his legs. This caused suspicion and on inquiry by PW 11, the said passenger disclosed his name in presence of PW 4 Sukh Dev driver and PW 5 Khem Singh conductor of the bus. PW 11 further told said passenger that the police had suspicion that he was in possession of some contraband and that whether he wanted to be searched before a Magistrate or a Gazetted Officer. On this the said passenger gave his consent to be searched by the police. Thereupon, the bag of the accused was searched and from the bag 15 chapati shaped charas was recovered. On weighment, the charas was found 1.100 Kgs. From each chapatti of charas some bits were taken out and in this way two samples each weighing 25 grams were separated and put in polythene envelops and sealed in cloth parcel with seal-T. The remaining bulk charas i.e. 1.050 Kgs. was put in the same envelop and wrapped. From the pocket of the bag identity card of the accused and a small diary were also recovered. The bulk charas, identity card and small diary were sealed in cloth parcel with seal-T. NCB forms in triplicate were filled in and the seal impressions were …3… taken on the cloth. The seal was handed over to PW 2 Sukh Dev. The case property was taken in presence of witnesses. A rukka Ex. PW 1/A was sent to Police Station, Sadar through PW 1 HHC Nasib Khan. The site plan was prepared. The case property was deposited with the MHC of the Police Station. On the basis of rukka FIR Ex. PW 1/B was registered. The statements of witnesses were recorded under Section 161 Cr.P.C. The special report Ex. PW 2/A was sent. The report of C.T.L., Kandaghat was obtained and vide report Ex. PW 12/D, the sample was found to be charas. On completion of the investigation, challan was presented in the court. The accused was charged, under Section 20 of the Act. The prosecution has examined 12 witnesses. The statement of accused was recorded under Section 313 Cr.P.C. He pleaded his innocence. The accused examined DW 1 HC Suresh Kumar in defence. After conclusion of the trial, the learned Special Judge convicted and sentenced the accused, as noticed above, hence appeal by the accused. 3. I have heard Mr. J.R. Poswal, learned counsel for the appellant- accused and Mr. Ansul Bansal, learned Additional Advocate General and gone through the record. The learned counsel for the appellant has submitted that the learned Special Judge has misconstrued, misinterpreted the material on record. The prosecution has failed to prove the recovery of charas from the person or from the bag of the accused. It has been submitted that accused has been falsely implicated in the case. The prosecution has failed to prove the charge beyond reasonable doubt. There are material contradictions in the prosecution story which have not been considered by the …4… learned Special Judge. The mandatory provisions of Sections 42, 43, 52 and 57 of the Act have not been complied. In any case, the Chemical Examiner in the report Ex. PW 12/D has found resin content 34.75% in the sample and therefore, in view of resin content in the sample, it cannot be said that the accused was possessing commercial quantity of charas. The appellant is entitled to leniency in the sentence. The learned Additional Advocate General has supported the impugned judgement and has submitted that the accused in his statement under Section 313 Cr.P.C. has admitted that he was sitting on seat No. 14 in the bus. He has further admitted that police had taken his identity card from his bag. He has submitted that prosecution has proved the case beyond reasonable doubt and the accused has been rightly convicted and sentenced by the learned Special Judge. 4. At this stage, it is necessary to refer to evidence, which has come on record. PW 1 HHC Nasib Khan has stated that he was the member of Nakka party on National Highway No. 21 near the gate of Police Station Sadar, Bilaspur. At about 1.00 a.m., HRTC bus bearing No. HP-42,0378 came from Manali side. SI Mool Raj and Inspector Manoj Kumar checked the bags kept by the passengers. Chaman Lal accused was occupying seat No. 14, his consent was obtained for checking the bag. The bag which was kept in between the feet of accused was checked. On checking the bag, it was found to contain charas which on weighment was found to be 1.100 Kgs. in the shape of chapaties. Sampling and sealing was done and NCB forms were filled in. Rukka Ex. PW 1/A was handed over to him for …5… registration of the case at Police Station, Sadar. After registration of FIR Ex. PW 1/B, he handed over the file to Investigating Officer for further investigation. He was cross-examined at length by the defence but in his cross examination nothing favourable to the defence was extracted. 5. PW 2 Constable Dev Raj has proved special report Ex. PW 2/A, which was received at 11.25 a.m. on 13.5.2006 and to this effect note Ex. PW 2/B was made by the witness on the special report. PW 4 Sukh Dev was the drive r of HRTC bus No. HP-42-0378 on the relevant date. He has stated that at about 11.30 p.m. on 12.5.2006 near Police Station, the police had organized a nakka. The bus was signalled to stop and therefore, he stopped the bus. The policemen entered the bus and started checking the passengers. He was declared hostile and cross examined by the prosecution. In cross examination, he has admitted that on 13.5.2006 at 12.15 a.m. the bus reached near Police Station, Bilaspur. He has stated that ticket No. F0313271 was recovered from the accused. He identified his signatures on search memo Ex. PW 4/A vide which ticket Ex. PW 4/B was taken into possession. He identified his signature as well as the signature of Khem Singh on consent memo Ex. PW 4/C, personal search memo Ex. PW 4/D of the raiding party, identification memo of charas Ex. PW 4/B. He identified his signature on information of arrest Ex. PW 4/G and on seizure memo Ex. PW 4/E. He identified his signature on parcel Ex. P1 and sample Ex. P 2. 6. PW 5 Khem Singh has stated that he was Conductor on HRTC bus bearing registration No. HP- 42-0379 on 12.5.2006 and …6… PW 4 Sukh Dev was the driver. The bus was enroute from Manali to Delhi. At about 12.15 a.m. in the night on 13.5.2006 the bus was stopped and checked at nakka near the gate of Police Station, Bilaspur. He was declared hostile and cross examined by the prosecution. In his cross examination, he has admitted that his statement Ex. PW 5/A was recorded by the police. He identified his signature on personal search memo Ex. PW 4/A, arrest memo Ex. PW 4/B, identification of substance Ex. PW 4/F, personal search of raiding party Ex. PW 4/D, consent memo Ex. PW 4/C, seal impression Ex. PW 4/E, seizure memo Ex. PW 4/H and parcels Ex. P1 and Ex. P 2. In the cross examination conducted by the defence, he has stated that passenger who was brought from the bus was also searched and upon search an identity card, bus ticket and diary were recovered. 7. PW 6 ASI Rattan Lal has stated that on the receipt of rukka Ex. PW 1/A, he recorded FIR Ex. PW 1/B which bears his signature and he made endorsement on the rukka which is Ex. PW 6/A. The file was returned at 2.25 p.m. PW 7 HHC Nand Lal has stated that he was posted as constable at Police Station Sadar for the last four years. On 15.5.2006 MHC Suresh Kumar gave one parcel sealed with seal impression-T and NCB forms in triplicate alongwith sample seal and police docket vide RC No. 103/06 for depositing the same with C.T.L., Kandaghat. On the same day those were deposited with C.T.L., Kandaghat and he obtained the receipt which was handed over to MHC for record. …7… 8. PW 9 HC Suresh Kumar has stated hat he has been posted as MHC at Police Station, Sadar since January 2006. He has proved copy of rapat No. 47 Ex. PW 9/A and copy of rapat No. 48 Ex. PW 9/B. On 13.5.2006 at about 3.30 p.m. Inspector Manoj Kumar had deposited three sealed parcels alongwith triplicate NCB forms with sample seal on a piece of cloth with him. The same were entered in register No. 19 at Serial No. 73/1326, a copy of which is Ex. PW 9/C. On 15.5.2006, sample alongwith NCB forms and sample seal were sent to C.T.L., Kandaghat for chemical analysis through HHC Nand Lal vide RC No. 103/06. On return after depositing the sample, road certificate was handed over to him vide receipt which was given on the road certificate Ex. PW 9/D. 9. PW 10 HC Dhani Ram has stated that on 12.5.2006, he alongwith SHO Manoj Kumar and others were on nakka at national highway No. 21 near the gate of Sadar Police Station, Bilaspur at 12.00 p.m. The bus HP-42-0378 was stopped at that place and the bus was searched. He has supported the prosecution case regarding recovery of Charas from the bag of accused. He has also stated that small pieces from all 15 chapaties were taken out and two samples of 25 grams each were drawn, which were sealed separately with seal impression `T’. The charas in the form of 15 chapaties are Ex. P 5 to Ex. P 19. The identify card is Ex. P 20. This witness was cross examined by the defence but nothing favourable to the defence was extracted in his cross examination. 10. PW 11 SI Mool Raj has stated that on 12.5.2006, he alongwith Inspector Manoj Kumar and others laid nakka near Police …8… Station Sadar at about 12.15 (night) and HRTC bus bearing registration No. HP-42-0378 was searched. He supported the prosecution case in its entirety. He was cross examined by the defence. The passengers were not associated during the search because they were found to be from distant places. 11. PW 12 Inspector Manoj Kumar has stated that on 12.5.2006, a nakka was laid near the gate of Police Station Sadar, Bilaspur on national high way No. 21. At about 12.15 midnight on 12/13/5/2006 bus No. HP-42-0378 was stopped and searched in routine checking. The accused present in the court was found sitting on seat No. 14 who was holding a bag in between his legs and tried to push backward the bag with his legs. On suspicion the accused was told by him that he wanted to search him and the accused had a right to be searched in presence of a Magistrate or a gazetted officer. On this, the accused gave his willingness to be searched by the witness. Thereupon the accused picked up his bag and brought outside the bus. The consent memo Ex. PW 4/C was drawn which was signed by PW 4 Sukh Dev, PW 5 Khem Singh and PW 11 Mool Raj. On consent memo the accused gave his consent Ex. PW 10/A. The personal search of Sukh Dev, Khem Singh, SI Mool Raj witnesses was taken by the accused vide memo Ex. PW 4/D, which was signed by the accused. On checking the bag of the accused, charas in the form of 15 chapaties was found. The identification memo Ex. PW 4/F was prepared, which was signed by the witnesses. Charas in the form of 15 chapaties was weighed and on weighment it was found to be 1.100 Kgs. small pieces were taken out from all the …9… 15 chapaties and two samples were drawn separately and were sealed with seal impression `T’. The remaining charas was put into same polythene bag. The identify card Ex. P 20 and diary Ex. P 21 were also recovered. All the articles and remaining charas, identify card and diary were put in the same bag. The bag was sealed in a cloth parcel with seal impression `T’. Sample seal impression was taken on a piece of cloth, NCB forms in triplicate were prepared. All the parcels, NCB forms were taken into possession vide memo Ex. PW 4/H. The seal was handed over to PW 4 Sukh Dev and the memo Ex. PW 4/H was prepared, which was signed by the witnesses Sukh Dev, Khem Singh and SI Mool Raj besides the accused. The site plan Ex. DA was prepared, rukka Ex. PW 1/A was sent to Police Station for registration of the case through HHC PW 1 Nasib Khan. The ticket of HRTC bus is Ex. PW 4/B and the sample seal on cloth of piece is Ex. PW 4/E. The accused was arrested and information of arrest was given to his wife. On receiving the report of Chemical Examiner, challan was prepared and submitted in the court. The report of the Chemical Examiner is Ex. PW 12/D. On 13.5.2006, the file was handed over to SI Mool Raj for further investigation of the case. Parcel Ex. P 1 was signed by witnesses Sukh Dev, Khem Singh and SI Mool Raj. The statements of Raj Kumar Ex. PW 3/A, Khem Singh Ex. PW 5/A and Sukh Dev Ex. PW 12/E were correctly recorded by him. He has supported the remaining prosecution case also. In cross examination conducted on behalf of the defence, he has specifically stated that he had no prior information about the contraband. …10… 12. In his statement under Section 313 Cr.P.C. the accused in answer to question No. 5 has admitted that he was sitting on seat No. 14 of the bus. In answer to question No. 6, the accused has stated that police took his identity card from his bag and from that they came to know about the name etc. The accused denied rest of the prosecution case in his statement. DW 1 HC Suresh Kumar has placed on record receipt Ex. DW 1/A of case diary in Police Station. 13. The learned counsel for the appellant has submitted that police had prior information of the contraband and there is violation of Sections 42, 43, 52 and 57 of the Act and therefore, appellant is entitled to acquittal. He has also submitted that prosecution story is unnatural. The independent witnesses have not supported the prosecution case. The learned court below has erred in accepting the prosecution story based upon the police witnesses. There are material contradictions. The learned Special Judge has erred in closing the defence evidence on 28.7.2007. As per prosecution 1.100 Kgs. charas was allegedly recovered from the accused. According to Chemical Analyst resin content in the sample was 34.75% and therefore, what was allegedly recovered from the appellant was less than the commercial quantity of charas. The learned counsel for the appellant has submitted that in view of Dharam Paul vs. State of H.P. Latest HLJ 2007 (HP) 827, the appellant is entitled to leniency in the sentence. 14. The learned counsel for the appellant has submitted that no recovery of charas was made from the appellant, the bag Ex. P-3 has not been proved to be the bag of the appellant. The prosecution …11… has proved consent memo Ex. PW 4/C on which the accused has given consent Ex. PW 10/A in favour of PW 12 Inspector Manoj Kumar for conducting search of the bag as well as person of the accused. The consent memo has been signed by witnesses. PW 4 Sukh Dev, PW 5 Khem Singh and PW 11 Mool Raj have admitted their signatures on Ex. PW 4/C. The personal search of the raiding party was done by the accused and memo Ex. PW 4/D to this effect was prepared, which was signed by PW 4 Sukh Dev, PW 5 Khem Singh. The memo of recovery Ex. PW 4/H was prepared which is signed by PW 4 Sukh Dev, PW 5 Khem Singh, PW 11 SI Mool Raj and accused. The seal impression `T’ Ex. PW 4/E signed by PW 4 Sukh Dev and PW 5 Khem Singh has also been proved. The ticket of the bus Ex. PW 4/B recovered from the accused has also been proved. The memo of personal search Ex. PW 4/A is signed by PW 4 Sukh Dev, PW 5 Khem Singh and the accused. On the basis of rukka Ex. PW 1/A, FIR Ex. PW 1/B was registered. The report of Chemical Examiner is Ex. PW 12/D, wherein resin content in the sample was found to be 34.75%. 15. It has been submitted on behalf of the appellant that independent witnesses were not joined during the investigation. PW 12 has stated that passengers were not associated at the time of search as such passengers were from far of places. However, PW 4 Sukh Dev drive r of the bus, PW 5 Khem Singh conductor of the bus the natural witnesses were associated. These two witnesses were declared hostile, but in their respective cross examination they have admitted their signatures on all documents, which they have signed. …12… Simply a witness has been declared hostile does not mean that his entire testimony is to be discarded. The court can rely that part of the statement of hostile witness which inspires confidence. In the present case, PW 4 and PW 5 have admitted their signatures on all material documents and have proved the recovery of charas from the bag of accused in the form of 15 chapaties. The police witnesses have also supported and proved the recovery of charas from the bag of the accused. It has come in evidence that two samples were taken by collecting small pieces from each chapatti of charas, therefore, the samples were homogeneous. The appellant has placed nothing on record to show why the police witnesses in the present case should not be believed. The Chemical Examiner has found 34.75% resin in the samples, hence, the prosecution has proved that 1.100 Kg charas was recovered from the accused. The accused in his statement under Section 313 Cr.P.C. has categorically admitted that the bag belonged to him and the identity card was recovered by the police from that bag. 16. In State of Punjab vs. Balbir Singh 1994 (3) SCC 299, it has been held that if a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course for investigating into an offence or suspected offences as provided under the provisions of Cr. P.C. and when such search is completed, at that stage section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or …13… psychotropic substance then the police officer who is not empowered should inform the empowered officer who should thereafter proceed in accordance with provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards he should carry out the investigation in accordance with the other provisions of NDPS Act. 17. In State of Punjab vs. Baldev Singh 1999 (6) SCC 172, it has been held that section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer without prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during normal course of the investigating into an offence or suspected offences and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of section 50 of the Act are not attracted. 18. In State of Himachal Pradesh versus Pawan Kumar, (2005) 4 SCC 350, it has been held that a bag, brief case or any such article or container etc. can, under no circumstances, be treated as body of a human being, therefore, it is not possible to include these articles within the ambit of word ‘personal’ occurring in Section 50 of the Act. 19. The learned counsel for the appellant has also submitted that there is violation of Section 43 of the Act. In Ravindran alias John versus Superintendent of Customs, (2007) 6 SCC 410, the Hon’ble Supreme Court has held that Section 43 of the Act does not require the information of any person to be taken down in writing. In …14… Gurbax Singh vs. State of Haryana 2001 (3) SCC 28, the Hon’ble Supreme Court has held that provisions of Sections 52 and 57 are directory, violation of these provisions would not ipso facto vitiate trial or conviction. 20. PW 12 Inspector Manoj Kumar in his statement has stated that nakka was laid at National Highway No. 21 near the gate of Sadar Police Station, Bilaspur. He has also stated that bus No. HP-42-0378 was checked in routine. In cross examination, he has specifically stated that he had no prior information of the contraband. There is nothing on record that the police had prior information that the accused was carrying charas when he was searched during routine checking of the bus. It is not a case of prior information, therefore, Section 42 of the Act is not applicable. Charas in the shape of 15 chapaties was recovered from the bag of the appellant. The appellant was informed the grounds of his arrest vide memo Ex. PW 4/G. The appellant in the facts of the case and in view of Ravindran alias John case (supra) has failed to prove violation of Section 43 of the Act. The learned counsel for the appellant could not point out specific violation of Section 52 of the Act. The special report Ex. PW 2/A under Section 57 of the Act was sent and was received on 13.5.2006 at 11.25 a.m. and this fact has been proved by PW 2 Dev Raj. In the light of above discussion, the learned counsel for the appellant- accused has failed to make out any case regarding violation of Sections