IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 638 of 2008 Date of decision: 26. 5. 2009 Man Singh @ Balwan …..Petitioner Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. Anand Sharma, Advocate. For respondent : Mr. J.S. Guleria, Assistant Advocate General. Surinder Singh, J. (Oral) The appellant has assailed the judgment of conviction and sentence passed by the learned trial court whereby he was ordered to undergo the sentence of two years and also to pay a fine of Rs. 20,000/- for the commission of the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short “the Act” for allegedly keeping in his possession less than commercial quantity and more than small quantity of ‘charas’. In brief, the prosecution case as emerges from the evidence on record can be stated thus. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. - 2 - PW-6 A.S.I. Brij Lal of Police station Nirmand along with Head Constable Ghanshyam Singh and constable Gian Chand had gone towards village Keol in a police vehicle which was being driven by one Shri Tikkam Singh to investigate a case under Sections 302, 451, 323 read with Section 34 of the Indian Penal Code registered vide FIR No. 17/2007 in police Station Nirmand. When the aforesaid police officials were present near the rope-way, they noticed the appellant coming from the side of village ‘keol’ towards Jhula (rope-way). On seeing the police, he had tried to escape. On this, the police party got suspicious. There was no independent witness available as such, the appellant was apprehended and he was informed of his right to be searched before the Magistrate or the gazetted Officer. The appellant opted to be searched by the police party and to this effect memo Ext. PW-1/A was prepared. A.S.I. Brij Lal rendered himself to be searched by the appellant but nothing incriminating article was found. Thereafter he searched the bag, to which the appellant was carrying and found 850 gms. of ‘charas’ which was wrapped in the polythene paper having different shape in the form of ‘balls’. Two - 3 - samples of 25 gms. each were separated and sealed in two parcels mark A and B, sealed with seal impression ‘T’. The remaining bulk was also sealed with the same seal. Its specimen impression was taken on a piece of cloth Ext. PW-1/F and its facsimile was also put on the N.C.B. Forms which were filled in triplicate on the spot. As per the case of the prosecution, the seal after its use was handed over to Head constable Ghanshayam. The case property was taken into possession vide seizure memo Ext. PW-1/C. A Ruka was sent through Constable Tikkam Singh aforesaid to the Police Station for registration of the case, on the basis of which FIR Ext. P-R was registered. The police prepared the site plan Ext. PW6/B of the place of recovery. The police also recorded the statements of the witnesses under Section 161 Cr.P.C. The appellant was arrested and the grounds of arrest were informed to him. The aforesaid ASI was officiating as SHO at the relevant time, he deposited the case property with MHC PW-2 Mohar Singh who made its entry in the Register in Malkhana. The abstract of the register is Ext. PW-2/A. - 4 - Special report Ext. PW-5/A was sent through Constable PW-2 Mohar Singh on 9.2.2007. One sample parcel along with NCB form in triplicate and specimen seal impression and copy of FIR were sent through constable PW-3 constable Jiva Nand for its examination to FSL Junga through Road Certificate Ext. PW-2/B. He obtained its receipt [Ext. PW-2/C] and handed over to the MHC. After completing the investigation, challan was presented in the court for the trial of the appellant. Finding a prima facie case against the appellant, he was charge sheeted for the aforesaid offences. He pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses. After closure of the prosecution evidence, the appellant was examination under Section 313 of the Code of Criminal Procedure. According to him he was implicated in a false case. He was a mule driver. He met the police party while coming from village Koel and they asked him whether a person had gone to village Koel when he told them he did not see anybody then police made him to sit in their vehicle. To probablize - 5 - his defence he did not lead any evidence in defence. At the end of the trial he was convicted and sentenced as aforesaid, allegedly keeping in his possession 229.10 gms of ‘charas’ calculated on the basis of decision of Division of this Court in Dharampal’s case ”Latest HLJ HP 827”. Thus, he was convicted and sentenced for the intermediate quantity of ‘charas’. Thus challenged it in appeal. Shri Anand Sharma, learned counsel for the appellant has argued with vehemence that the recovery of alleged ‘charas’ from the possession of the appellant, in this case has not been proved in accordance with law and further that sample taken was not of representative character. No independent witnesses were associated during the search of the appellant and further that the defence raised by the appellant was not appreciated by the learned trial court. Contra Shri J.S. Guleria, learned Assistant Advocate General while supporting the judgment of conviction and sentence forcefully argued that recovery in the instant case is from the person of the appellant, from an open place and there is no requirement of law that the police should include two - 6 - independent witness so as to justify the compliance of Section 100 (4) of the Code of Criminal Procedure. He further argued that evidence of the prosecution revolves around the official witnesses who are worth inspiring confidence and no dent has been caused in their cross-examination by the accused. After having given my thoughtful consideration to the rival contentions of the parties and carefully going through the evidence on record I find that the statements of the official witnesses could not be doubted with respect to the recovery. Further, the recovery of the alleged contraband is from an open place and the rigours of Section 100 (4) of the Code of Criminal Procedure will not apply in the instant case. It is also not a case where the provision of Section 50 of the Act would apply but as an abundant caution, the Investigating Officer appears to have apprised the appellant of his right to be searched before a gazetted officer or the Magistrate and to this effect he also prepared the memo Ext. PW-1/A. The recovery from the bag, to which the appellant was having with him has been corroborated by PW-1 constable Tikam Singh who was also present on the spot with PW-6. In the cross-examination of both these witnesses - 7 - nothing material could be extracted in order to doubt their versions. On the close scrutiny of these witnesses, I find that the police had recovered 850 gms. of stuff from the possession of the appellant. Now it is to be seen whether the entire stuff is that of ‘charas’. It is the case of the prosecution that the stuff which was recovered from the bag of the appellant was in the shape different of ‘balls’. ASI Brij Lal had taken these samples randomly to ascertain its correctness. Moreover, the method in which the sample was taken has neither been spelt out by him nor by PW-1 constable Tikam Singh. The court has been left at lurch as to how the samples were drawn from the recovered stuff and what method was adopted to make it homogeneous or to call it a sample of representative character. 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 - 8 - 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 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 send 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. - 9 - 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. 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 25 grams of Charas which was sent to MHC PW-2 Mohar Singh through constable Jiva Nand PW-3 vide RC No. 8/2007 to FSL Junga for its examination along with sample - 10 - of seal, NCB form, seizure memo and copy of FIR as indicated in the road certificate Ext.PW- 2/B, which also bears the signatures of Examiner receiving the samples in the Laboratory on 9.2.2007 and as per report Ext. PW-6/E sample so sent was that of ‘charas’ containing 25.47% resin in W/W. But the other remaining stuff was not sent for the analysis more specifically when it was in the shape of different ball size wrapped in a polythene paper, out of which sample aforesaid was taken randomly by the Investigating Officer. Therefore, it is not known what it contained. 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 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. i.e. Rigorous Imprisonment for a period of six months and to pay a fine of Rs.10,000/- in default to pay the fine, to further undergo - 11 - simple imprisonment for a period of 2 months. Ordered accordingly. The appeal stands partly allowed with the above modification in the sentence. The accused-appellant is in jail/detention since his arrest i.e. w.e.f. 7.2.2007 and has already undergone the sentence for about 2 years and 3 months more than provided for the offence for which he stands convicted by this court. Therefore, he be released forthwith if not required in any other case. Registry of this court is directed to take necessary steps in compliance of this judgment. The matter stands disposed of. Send down the records. May 26, 2009 (Surinder Singh),J. (cm)