HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No. 375 of 2006 Reserved on: 29.2.2008. Decided on: 31.3.2008. Gurmail Singh ………Appellant. Versus State of Himachal Pradesh ……Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellant: Mr.Bhupender Ahuja, Advocate. For the respondent: Mr.J.S. Guleria, Law Officer. V.K. Ahuja, J: This is an appeal filed by the appellant against the judgment of the court of learned Additional Sessions Judge, Una, H.P., dated 17.6.2006, vide which the appellant was held guilty under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (here-in-after referred to as the Act) and was sentenced to undergo rigorous imprisonment for 8 years and to pay a fine of Rs.75,000/-. In default of payment of fine he was to further undergo simple imprisonment for two years. Briefly stated the facts of the case are that on 25.4.2005, ASI Harbans Lal, alongwith other police officials, was present at Bus Stand Haroli during patrolling and a Constable met him there and gave a statement, which was recorded by him in which it was alleged that the appellant deals in the sale of _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - poppy husk. The statement was reduced to writing and copy of the same was sent to Police Station, Una as well as S.P., Una under Section 42 of the Act and the ASI Harbans Lal formed a raiding party after joining two independent witnesses and raided the house of the accused. He gave an option to the accused under Section 50 of the Act as to whether he wanted to give search of his house in the presence of some Magistrate and the accused gave his consent to be searched by the police. The ASI gave his personal search to the accused as well as to the other witnesses and on search of the house of the accused, 37 kg. of poppy husk hidden therein was recovered. Two samples of 250 grams each were taken from the gunny bag and the gunny bag and the samples were sealed separately according to the procedure. The accused was arrested and was supplied ground of arrest. An intimation of the arrest was given to his wife as requested by him. The Investigating Officer filled the NCB form and produced the case property and accused before the SHO, who resealed the property and the case property was deposited with the MHC. The samples were sent to the office of the Chemical Examiner and on receipt of the report that this was poppy husk and on completion of the investigation, the challan was filed and the case was sent to the court of learned Trial Court for trial, who conducted the trial of the appellant under Section 15 of the Act leading to his conviction. On perusal of the record of the case, it is clear that the prosecution had examined PW-3 Joginder Singh, who was associated by the police at the time of recovery. But he turned hostile though he admitted the signatures on the memo in regard to recovery as well as the personal search memo. The prosecution had also examined PW-13 ASI Harbans Lal, I.O. in the case, who received information under Section 42 of the Act, sent the same - 3 - through HHC Sher Bahadur to S.P., Una and also recorded the statement of Constable Mohinder Kumar under Section 154 and sent the same to the police station for registration of the case on the basis of which the F.I.R. was registered. These statements were corroborated by PW-2 H.C. Jagtar Singh, a member of the raiding party, who had materially corroborated the statement of PW-13 ASI Harbans Lal in regard to recovery of poppy husk from the house of the accused. The prosecution had also examined PW-1 Constable Mohinder Kumar of CIA Staff, who gave information to the ASI about the accused selling the poppy husk in his house, which was recorded and was sent to Police Station. The statement of Mohinder Kumar was sent to the Police Station through PW-4 Suresh Kumar, Constable, who gave the same to MHC, Una, who recorded the FIR on the basis of this statement. Similarly, PW-5 HHC Sher Bahadur, who was also present in the patrolling party headed by ASI Barbans Lal, had supported the prosecution story that a statement was made and that the information was received under Section 42 of the Act by ASI Harbans Lal, who recorded the same and sent the same through him to the Police Station. PW-6 SI Pritam Chand has corroborated the prosecution version, who was posted as Additional SHO and had recorded the FIR in the case. PW-7 SI Mohinder Sen, Reader to S.P., Una, received the information under Section 42 of the Act from the S.P., Una and also subsequent information received under Section 57 of the Act in the form of special report was also put up before the S.P., Una. - 4 - PW-8 HHC Karnail Singh had received the case property and deposited the same in the Malkhana. PW-11 HC Rajesh Kumar, the then MHC, had sent the samples to the office of the Chemical Examiner through HHC Karnail Singh, who has been examined as PW-8 and has corroborated this statement. PW-12 SHO Ajay Rana received the case property from ASI Harbans Lal, who produced the same before him which was resealed and he has stated that the case property alongwith NCB form and samples of seals were handed over to MHC by him. The prosecution had also examined PW-9 Om Kumar, Pradhan of the Gram Panchayat, who stated that the accused has got his own house where he lives with his family members in the village. I have heard the learned counsel for the appellant/accused and the Deputy Advocate General for the State and have also gone through the record of the case. The first plea raised by the learned counsel for the appellant was that there is no evidence on record to show that the house in question from which the recovery of poppy husk was made was in exclusive and conscious possession of the accused and, therefore, the accused cannot be held liable. He had made reference to the statement of the eye witnesses examined by the prosecution. A perusal of the statement of PW-2 HC Jagtar Singh, who a member of the raiding party, shows that there was not even one suggestion to the witness that the other members of the family of the accused were also living in that house or were present at the spot at the time of raid or that the house in question was not exclusively owned and possessed by the appellant. Similarly, no such - 5 - suggestions were put to PW-3 Joginder Singh, the independent witness, or PW- 13 ASI Harbans Lal, Incharge of the raiding party. The only suggestion put to PW-13 ASI Harbans Lal was that the wife and children of the accused are living in that house, but there were no suggestions that they were present at that time or that they had the knowledge about the poppy husk being kept there. There is nothing that they were also living in that house at the relevant time or that the house was owned and possessed by the accused exclusively. The statement of the Pradhan examined in this behalf was relied upon as PW-9, who simply stated that the accused lives in that house alongwith his family member. But this much evidence cannot be said to be sufficient to hold that the poppy husk, in question, was not recovered from the exclusive and conscious possession of the appellant, who was only found present at the time of recovery and as such the contention put forth by the learned counsel for the appellant is repelled being devoid of any force. It is in evidence of PW-2 HC Jagtar Singh that the poppy husk was hidden between a box and a wall in a gunny bag was recovered, which clearly shows that the accused had the knowledge about the same, which was kept by him in the house. The second plea taken by the learned counsel for the appellant was that the Malkhana register was not produced by the prosecution during the trial of the case and as such it cannot be said that the case property was kept in safe custody by the prosecution during the trial of the case. Reliance was placed by the learned counsel for the appellant on decision in Savitri alias Shoobha and others v. State of Chattisgarh, 2001 Cri.L.J. 4602. A perusal of the same shows that the case was under the Narcotic Drugs and Psychotropic Substances Act. But in that case, there was non-production of - 6 - articles before the Station House Officer for affixation of seal and there was non- examination of Malkhana register Mohirir and register of the Malkhana was not produced. It was also observed that the person who had taken sample to F.S.L. was not examined and, therefore, it was held that it cannot be said that the samples were kept intact and were deposited in the Malkhana and, therefore, there was non-compliance of Section 55 of the Act and accordingly, the prosecution case was held to be doubtful and the accused was entitled to benefit of doubt. This decision was based upon the facts of that case only and is, therefore, not applicable to the present facts. In the present case, not only the MHC, who received the case property, has been examined, as discussed above, but the Constable who took the samples to the office of the Chemical Examiner, Kandaghat has been examined, who stated on oath that the samples were deposited by him safely. The mere fact that the Malkhana register was not produced during the trial of the case is not sufficient to hold that the statement of the MHC recorded on oath that the case property was received by him and was kept in safe custody can be ignored. There is statement of PW-11 HC Rajesh Kumar in this regard, who stated that the case property was deposited with him by the SHO alongwith sample seal and NCB forms and it remained in his safe custody and he sent the samples through HHC Karnail Singh to CTL, Kandaghat and said Karnail Singh as PW-8 has corroborated this statement. This plea has been considered by the learned Trial Court in the judgment and it was observed that there was no specific cross examination of PW-11 in this regard and this witness may have brought the register in the court. But since there was no cross examination at this point, this plea of the accused was not accepted. In - 7 - case any such suggestions were made to the witness that he had not kept the case property in the Malkhana or had not made the entry in the relevant register, the witness could have been asked to produce the register but since no such prayer was made at the time of examination of the witness, the mere fact that there is no reference in the evidence that the register was also brought by the witness is not sufficient to hold that the statement of the witness made on oath i.e. of MHC can be ignored in this regard. Thus, this plea cannot be accepted. This contention falls squarely on the ground. The third point taken by the learned counsel for the appellant was that the report of the Chemical Examiner does not show that what was recovered was poppy husk defined under the Act and, therefore, the appellant was to be acquitted of the charge framed against him. Reliance was placed on the unreported judgment of a Division Bench of this Court in Criminal Appeal No.295 of 2004, titled Rajiv Kumar alias Guglu v. State of H.P., decided on November 2, 2007. A perusal of the said judgment shows that the Chemical Examiner was summoned by the Division Bench in that case and the statement of the Chemical Examiner was also recorded on October 3, 2007 in the form of questions and answers. He was asked about the test conducted by him and accordingly after referring to his report and his statement, the Division Bench concluded in that case that what was recovered cannot be said to be poppy straw within the meaning of the Act and accordingly, the accused was acquitted of the charge framed under Section 15 of the Act. The observations made by the Division Bench in that case was upon the evidence of the Chemical Examiner, statement made by him and the test conducted by him and does not lay down the law that the report of the Chemical - 8 - Examiner that the contents of the sample were poppy husk can be ignored to hold that it was not poppy straw or poppy husk, which was recovered from the possession of the appellant. In the present case, there is report of the Chemical Examiner Ext.PW-12/A that two samples of poppy husk weighing 250 grams each were recovered which were duly sealed and the seals were intact and there is a specific report of the Chemical Examiner that the exhibit contains contents of poppy husk. There is no material in this regard to hold that the said report of the Chemical Examiner can be ignored or is incorrect or that what was recovered and analyzed by the Chemical Examiner was not poppy husk. Therefore, this plea of the learned counsel for the appellant falls squarely on the ground. I have referred to the evidence in detail and have gone through the judgment of the learned Trial Court. There are no material contradictions or infirmities in this case so as to hold that the findings of the learned Trial Court holding the appellant guilty are not sustainable and I accordingly hold that the findings recorded by the learned Trial Court holding the appellant guilty under Section 15 of the Act are liable to be affirmed, which are affirmed accordingly. Coming to the last plea raised by the learned counsel for the appellant on the question of sentence, it was submitted that the accused had stated before the learned Trial Court that he was a poor person and his mother has expired and he has his wife and children and one unmarried brother, who are dependant upon him. This plea has been considered by the learned Trial Court. However, it deemed it appropriate to pass rigorous imprisonment for a period of 8 years on the person of the appellant as well as a fine of Rs.75,000/- keeping in view the quantity of the poppy husk recovered, which is 37 kg. - 9 - A perusal of the order, dated 17.12.2007, shows that the case was sent to the learned Trial Court to give an opportunity to the accused to lead evidence, if any, in support of his submissions and an opportunity was also to be given to the prosecution to rebut the same. The detailed order was passed on 17.12.2007 and the case was sent to the learned Trial Court for recording the statement of the appellant in regard to the sentence to be imposed upon the appellant. The statement of the appellant was recorded by the learned Trial Court in which the appellant has prayed that his wife is suffering from breast cancer and he has got two children; one daughter at the age of 18 years and one son of the age of 22 years and there is nobody to look after his ailing wife. The appellant had also examined DW-1 Dr.Kanwal Jit Kaur, Professor and Head of Department from Medical College, Amritsar, who brought the record pertaining to Avtar Kaur wife of Surmail Singh and has stated that the record is in regard to the treatment summary of Avtar Kaur. The woman was suffering from breast cancer. No evidence was led by the prosecution to rebut the same. Keeping in view the above evidence and the submissions made in regard to the sentence, I am of the opinion that the sentence imposed upon the appellant deserves to be reduced since the appellant’s wife is suffering from breast cancer. Accordingly, the sentence imposed is reduced to three years and a fine of Rs.25,000/-; in default of payment of find, the appellant shall further undergo rigorous imprisonment for a period of six months. The appeal is partly allowed to this extent accordingly. March 31, 2008 (TILAK) (V.K. Ahuja), Judge.