IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.544 of 2010. Judgment reserved on: 8.9.2011. Decided on: September 23rd 2011. ____________________________________________________________ Uttam Singh ……..Appellant. Versus State of H.P. ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. M.S. Guleria, Advocate. For the respondent : Mr. A.K.Bansal, Addl. Advocate General and Mr. P.M. Negi, Dy. Advocate General. _________________________________________________________ SURINDER SINGH, J : The appellant was charge-sheeted, tried and convicted by the learned trial Court in N.D.P.S. Case No. 31-S-7 of 2009, for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’ and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of ` 5,000/-. In default of payment of fine, to further undergo simple imprisonment for six months, for allegedly keeping in possession 31.23% resin contents of cannabis plant (Charas) in a total quantity of 800 grams. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. The prosecution story as emerges from the evidence on record can be stated thus. PW-11 Sh. Suneel Negi, Dy.S.P. in the year 2009 remained posted as SHO, Police Station (East) Shimla. On 23rd May, 2009 he alongwith HC Ramesh Chand (PW-10), Constables Naresh, Anil and Pawan Kumar were on patrolling duty in the area of Vikasnagar (Shimla) and also for the detection of crime. They were present on the National Highway (NH-22) and put a Nakabandi on the main gate of Vikasnagar. Around 6:30 a.m. the appellant hereinafter referred to as ‘the accused’ came from the side of the Petrol Pump carrying a polythene bag in his right hand. On catching the site of the police party, he attempted to flee away, but he was apprehended on suspicion in the presence of PW-1 Padam Dev and PW-2 Suresh Kumar who were passersby. They were included in the search operation. PW-11(Suneel Negi) aforesaid rendered himself to be searched by the accused, but nothing incriminating was recovered. To this effect, memo Ext. PW1/A was prepared. 3. PW-11 SHO Suneel Negi enquired about the identity of the accused, to which he (accused) disclosed, including his place of residence in New - 3 - Shimla. Thereafter he (SHO) conducted the search of the polythene bag, to which the accused was carrying. On its checking, he found another polythene bag Ext.P5 therein which contains Charas in the shape of sticks. Some of the sticks were wrapped in a transparent plastic paper and some were unwrapped. It smelt like Charas and a memo Ext. PW1/B was prepared and signed by the witnesses and the accused. On weighing, it came about 800 grams and was taken into possession vide memo Ext. PW1/D. Two samples of 25 grams each were separated, packed and sealed in two separate parcels Mark S-1 (Ext. P2) and S-2 (Ext. P-3) by putting three seal impressions of seal “H”. The remaining bulk was packed in a separate piece of cloth Ext. P-1 and sealed with the same seal. All these parcels were encircled in red, signed by the witnesses and the accused. 4. NCB Forms in triplicate were filled in on the spot, one of which is Ext. PW11/A. The recovered Charas alongwith the sample parcels was taken into possession vide memo Ext. PW1/D. The memo was signed by the accused, as well as by the witnesses aforesaid. - 4 - 5. The sample of seal impression “H” was drawn on a separate piece of cloth, one of which is Ext. PW1/C. The seal after its use was handed over to PW-4 Pawan Kumar vide memo Ext. PW1/E. 6. Rukka Ext. PW11/B was prepared and sent for the registration of the case which culminated into the FIR Ext. PW11/C. 7. The spot map of the alleged recovery Ext. PW11/D was prepared. The accused was arrested and he was informed of the grounds of arrest vide Ext. PW1/F. 8. The accused and the case property were brought to the police station. Thereafter the case property alongwith the sample of seal, NCB Form and other documents were handed over to PW5 MHC Yog Raj. 9. On 24.5.2009 special report Ext. PW8/A was sent to the Additional Superintendent of Police, Shimla. 10. PW-5 Yog Raj made the entry of the case property in the Malkhana Register and the abstract whereof is Ext. PW5/B. Thereafter he proceeded on leave and handed over the charge to PW-12 Shiv Dev. On 26.5.2009 he handed over one sample parcel - 5 - alongwith one sample of seal “H”, NCB Forms in triplicate, copy of the seizure memo and the copy of the FIR vide R.C. No. 53 of 2009 (Ext. PW12/A) for its analysis through PW4 Constable Pawan Kumar which was deposited by him in the laboratory and after obtaining the receipt thereon, it was handed over back in the police station. 11. PW-5 MHC Yog Raj also sent the remaining bulk as well as the second parcel of the case property, vide R.C. No. 79 of 2009 dated 28.7.2009 Ext. PW5/A for its analysis through PW6 Lady Constable Sheela. She also deposited the said property in the Forensic Science Laboratory and obtained the receipt and handed it back to the MHC. 12. The first sample parcel which was sent through Pawan Kumar was analyzed in the laboratory, it contained resin contents of cannabis plant to the extent of 31.23% weight-in-weight as per report Ext. PX and the sample was that of Charas. The examination report of the remaining bulk of the sample parcel is Ext. PY. 13. After completing investigation the challan was presented in the Court for the trial of the accused for - 6 - the offence above said and he abjured his guilt to the charge sheet. 14. To prove its case, prosecution examined its witnesses. The accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances which were found attendant upon him. His case was that of denial simplicitor. 15. At the end of trial, while believing the statements of the prosecution witnesses, the appellant- accused was convicted and sentenced as aforesaid, hence the present appeal. 16. Mr. M.S. Guleria learned counsel for the accused vehemently argued that there has been non- compliance of Sections 50 and 55 of the Act and also that no independent witness was joined by the police to witness the search. He further ventilated that there are material contradictions in the statements of the prosecution witnesses, the link evidence in the present case is not complete and there is also no evidence with respect to the fact, as to how and under what orders the remaining bulk and the second sample were sent for analysis, whether in fact that pertain to the present case or some other case. It is also argued that - 7 - the learned trial Court did not appreciate the evidence on record in the right perspective which has resulted into miscarriage of justice. PW-1 Padam Dev, one of the prosecution witnesses has turned hostile. 17. Contra, Mr. P.M. Negi, learned Dy. Advocate General submitted that the recovery in the instant case stands proved by cogent evidence. He also submitted that two independent witnesses who happened to be the passersby were included during the search of the accused and one of them PW1 Padam Dev was examined and he supported the prosecution case. He also ventilated that the official witnesses have stated about the recovery of the contraband from the possession of the accused. The link evidence is complete with respect to the sample sent for analysis at the first stage and there is no ambiguity in the statements of the prosecution evidence. In nutshell, the learned Deputy Advocate General has supported the judgment of conviction and sentence. 18. I have given my thoughtful consideration to the rival contentions of the parties and have carefully scanned the evidence on record. - 8 - 19. At the very outset, I would like to say that it is not a case of personal search attracting the provisions of Section 50 of the Act. The accused was holding a plastic envelop which contained the contraband, in his right hand which was in no way concealed under his garments or fastened to the body of the accused. In so far as compliance of Section 55 is concerned, it is directory and its non-compliance, if any, is not fatal to the prosecution, but however, I proceed to examine the prosecution evidence to appreciate other rival contentions which necessitate the dispassionate analysis of evidence. 20. PW-11 SHO Suneel Negi has supported the case of the prosecution in toto. He denied in his cross- examination that he had asked independent witnesses PW1 Padam Dev and PW2 Suresh Kumar to become witnesses as the police have recovered something from the accused and sign certain papers. He also denied not having executed the documents with respect to the recovery on the spot, but however, he stated that it took about 4-5 hours in completing the proceedings at the spot. He also denied that no NCB Forms were filled- up at the spot and also that no parcels were sent to FSL - 9 - for chemical analysis. It is worth noting that no suggestion has been thrown to this witness that nothing was recovered from the accused and the reason of his alleged false implication in the case has also not been suggested to him. Even when the accused was given a chance to explain the circumstances, he also did not spell out anything about his false implication or imputed any malice to the police. But despite these deficiencies, the prosecution is not relegated from proving its case in accordance with law against the accused, therefore, I further venture to assess other evidence on record. 21. Although, independent witnesses PW-1 and PW-2 did not support the case of the prosecution, but PW-1 Padam Dev admitted his signatures on the aforesaid document of recovery and arrest etc. But according to him his signatures were obtained in the police post in the presence of the accused and the police had disclosed that they had apprehended the accused. He was confronted and stood contradicted with the statement under Section 161 of the Code of Criminal Procedure recorded by the police. He also stated that Suresh Kumar PW-2 was also present in the - 10 - police post, whereas PW-2 Suresh Kumar who was known to PW-1 Padam Dev stated that on 23.5.2009 he alongwith Padam Dev were going together to the shop of Padam Dev at Vikasnagar. It was around 8:15 a.m. they came across the police party and called them to the police post where they were made to sign certain papers. Police officials asked them to disclose that they have recovered something from the accused, who was also present there. He did not ask from them as to why their signatures were being obtained. He admitted having signed the sealed parcel. The witness is a matriculate, but stated that he did not read the papers before signing it. He admitted his signatures on the seizure memos Ext.PW1/D and E. He also stated that he is a member of Residents Committee of Vikasnagar and he never signed any document prior to this without reading the same nor he made any complaint to the superior Officers of the police about obtaining his signatures in this case. 22. It is commonly known fact that the witnesses in the narcotic cases do turn hostile for the obvious reason, but it does not mean that when the prosecution choose to treat them as hostile witness and - 11 - cross-examine such witness(s), evidence of such witness(s) is/ are treated as effaced or washed off the record altogether, but the same can be accepted to the extent their version is found to be dependable on the careful scrutiny thereof. 23. From the statement of the above independent witnesses, it is clear that they had signed all the documents alleged to have been prepared on the spot in the presence of the accused, but according to them, their signatures were obtained in the Police Post. To examine their veracity, now the statements of the official witnesses are required to be closely scrutinized. 24. PW 3 C.Anil Kumar has afforded corroboration to the statement of PW11 SHO Sunil Negi, Investigating Officer. He categorically stated that the accused was spotted carrying the polythene bag in his right hand. SHO aforesaid asked his identity and on checking the bag, it was found to have contained another transparent polythene bag in which 800 grams Charas was found in the form of sticks, some were wrapped in a transparent plastic paper and some were unwrapped. It smelt like Charas and memo Ext.PW1/B was prepared in the presence of the witnesses i.e. PWs - 12 - 1 and 2 and out of the same, two samples of 25 grams each were separated and sealed with seal impression ‘H’ and remaining bulk was also sealed with same seal. He identified the envelope containing the Charas as Ex.P1 during the trial and also the sample parcels, which were received after the examination from the Laboratory. He also stated having filled in NCB in triplicate by the Investigating Officer and confirms the fact of the seizure of the case property vide memo Ext.PW1/D in the presence of the witnesses. The polythene bag which contained Charas was identified by him as Ex.P4. He had also taken Rukka from the spot to the Police Station Chhota Shimla for the registration of the case and brought the case file to the spot and handed over to SHO Sunil Negi. In cross-examination, he denied that the aforesaid independent witnesses were not passing through the spot and that the signatures of the independent witnesses were obtained on the blank papers and also on parcels Exts.P1 to P3 in the Police Post. He stated that the police party reached back the Police Station around 2/2.30 p.m. He denied that nothing was recovered from the accused. - 13 - 25. Further, the above version of the Investigating Officer as also of PW3 aforesaid stand corroborated by PW4 C. Pawan Kumar. He also stated that the Investigating Officer has prepared the site plan of the place of alleged recovery. 26. PW5 HC Yog Raj received the case property in the Malkhana from Inspector/ SHO Sunil Negi, which was duly sealed with seal impression ‘H’. He also testified that NCB forms in triplicate were deposited in the Malkhana. Its entry was made in the Malkhana register at Serial No.411. Next following day he proceeded on leave and handed over the charge to PW12 HC Shiv Dev. 27. PW12 HC Shiv Dev who was officiating as MHC stated that on 26.5.2009, he had handed over the sample parcel of this case alongwith sample of seal impression ‘H’, NCB forms in triplicate, copy of seizure memo and copy of FIR to PW4 C. Pawan Kumar for its deposit in the Laboratory vide RC Ext.PW12/A, which fact is admitted by PW4 C.Pawan Kumar aforesaid, who stated that he had deposited the sample and handed over the receipt to PW12 HC Shiv Dev and during this time, he did not tamper with the sample - 14 - parcel. He identified the sample parcel Ext.P2 (S-1), which was taken by him to FSL Junga. The sample aforesaid, which was taken by him tested positive for Charas. Thus, in the instant case, link evidence is complete. The hostility of the independent witnesses is not at all fatal to the prosecution. They stand confronted and contradicted with their statements recorded by the police under Section 161 of the Code of Criminal Procedure. The statements of official witnesses are worth confidence inspiring. No allegation of any enmity or false implication by the police is made out against the accused. 28. Learned counsel for the accused also vehemently argued that there is nothing on record to show that under whose orders, remaining bulk and second sample was sent for analysis by PW5 MHC Yog Raj, thus there is over doing of the police to fabricate the case against the accused. 29. The above argument of the learned counsel for the accused considered, but is worth rejecting. On the examination of the record, I find that on the basis of some judgments, the entire bulk was sent for the examination to the Laboratory by PW5 MHC Yog Raj to - 15 - get it examined from Public Analyst, Junga, which also tested positive, but if this portion of the evidence is ignored altogether from its consideration, even then it stands proved that from the recovered bulk from the accused, police took the samples randomly, which were sealed on the spot in the presence of the witnesses, deposited in the Malkhana and then one of the sample was sent for analysis which tested positive for Charas, completes the link in the instant case, had the remaining bulk and second sample not been sent for analysis. Therefore, nothing can be capitalized by advancing the aforesaid argument in favour of the accused. Therefore, on the close examination of the evidence on record, in my opinion, the offence charged against the accused stands proved. 30. Confronted with the aforesaid situation, Shri M.S. Guleria, learned counsel for the accused submitted that the substantive sentence in the instant case is not commensurate with the contraband found in the possession of the appellant, which is not a “commercial quantity”. Therefore, it is required to be reduced. - 16 - 31. I have examined this aspect of the matter. In the recovered stuff, the resin contents of the Cannabis plant was found to be 31.23% weight-in-weight in the first sample sent for analysis. Keeping in view the definition of the Charas as envisaged under Section 2(iii) (a) of the Act, the quantity of the Charas in the recovered stuff comes to 248.76 grams, for which the accused has been held guilty for keeping in his possession the non-commercial quantity. Thus, the substantive sentence of five years as imposed by learned trial Court appears to be excessive and it is hereby reduced to three years without disturbing the fine and default clause. Ordered accordingly. 32. With the above modification in sentence, the appeal is dismissed. 33. Learned trial Court is hereby directed to send the modified warrant in conformity with this judgment forthwith, to the concerned Superintendent, Jail, where the appellant is undergoing the sentence. 34. Send down the records. September 23, 2011. (Surinder Singh), (Pds) Judge.