IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.705 of 2008. Judgment reserved on : June 18,2009. Decided on: June 22nd , 2009. _______________________________________________________ Sita Ram ……..Appellant. Versus State of H.P. ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Mr. Parmod Singh Thakur, Advocate. For the respondent : Mr. Vikas Rathore, Dy. Advocate General. ____________________________________________________ SURINDER SINGH,J : In Sessions Trial No.17/07, decided on 29th/30th September, 2008, by the learned Special Judge, Kullu, the appellant was convicted and sentenced to undergo Rigorous imprisonment for a period of six months and to pay a fine of Rs.2,000/- under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’ and in default of payment of fine to further undergo rigorous imprisonment for a period of one month, keeping possession 145 gms. Of Opium and the appellant was also held Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - guilty for the offence punishable under Section 20 of the Act, for allegedly found in possession, Charas more than the small quantity and less than the commercial quantity, as such, sentenced to undergo to rigorous imprisonment for a period of four years and to pay a fine of Rs.10,000/- and in default of payment of fine, he was further ordered to undergo rigorous imprisonment for a period of two months. The sentences aforesaid passed under both the sections were ordered to run concurrently and the period to detention, if any, as an under-trial was ordered to be set off as per the provision of Section 428 of the Code of Criminal Procedure. Further the ‘Opium’ was ordered to be confiscated and the Charas, to be destroyed. In short, the prosecution case is that on 23.11.2006, PW3 ASI Lekh Ram was heading a police patrolling party at the place called ‘ZERO POINT’ at Dhaugi (Kullu). Around 5.30 p.m., the police party noticed the appellant coming from opposite side with a bag in his hand. On seeing the police, the appellant - 3 - accelerated his speed and diverted himself towards village Shalwar. The police became suspicious and apprehended him. His identity was asked. It was a lonely place and no independent witness was present, as such, PW1 HC Tek Chand and PW2 HC Yoginder Paul became the search witnesses. PW3 ASI Lekh Ram aforesaid searched the bag of the appellant and recovered 1.200 Kilograms of Charas and also 145 grams of Opium. Two samples of 25 grams from each of the recovered stuff were taken as samples and the remaining quantity of the Charas and the Opium both were sealed separately with seal impression ‘T’. The remaining bulk of both the quantities were also sealed with the same seal. The samples of the Charas were marked with red ink as Mark’A’ and that of Opium as Mark ‘B’. The case property was taken into possession vide memo Ex.PW1/D. NCB forms in triplicate with respect to each of the contraband were prepared on the spot. The facsimile of the seal impression ‘T’ was also affixed there upon against the relevant column and the samples of seal - 4 - were taken on a piece of cloth, out of which one is Ex.PW1/C. The signatures of PW1 HC Tek Chand and PW2 HC Yoginder Paul were taken on the seizure and recovery memo. The sample of seal Ex.PW1/C and copy of recovery memo Ex.PW1/D were supplied to the appellant free of costs and in token thereof, he appended his signatures. The appellant was arrested and the grounds of arrest were informed to him vide memo Ex.PW2/A. The appellant expressed his desire to inform his Uncle with respect to his arrest and accordingly he was informed. The Ruqa Ex.PW1/E was prepared and sent to the Police Station Banjar, through HHC PW1 Tek chand and the site plan Ex.PW3/A of the spot of recovery was also prepared. The accused and the case property were produced by PW3 ASI Lekh Ram before the SHO (PW8), Police Station Banjar. All the parcels of the case property were re-sealed with his seal impression ‘H’. The seal impression ‘H’ was - 5 - also put against the column No.9 to 11 of the NCB forms. Thereafter, said SI Ram Karan (PW8) deposited the case property along with NCB forms and sample of seal impressions ‘T’ and ‘H’ with PW5 MHC Chaman Lal. One sample parcel of Charas and one sample parcel of Opium along with sample of seal impressions ‘T’ and ‘H’ and other relevant documents were sent for the examination to the CFSL Chandigarh, through PW7 C. Hem Raj. Special report Ex.PW3/B was sent to the Additional S.P., on the next day of the recovery. As per report Ex.PA received from CFSL Chandigarh, the sample mark’A’ was found that of the Charas and sample mark ‘B’ of Opium and the percentage of morphine was found to be 1.8% in it. After recording the statements of the witnesses and completing the investigation, the case against the appellant was presented before the court for his trial. Finding a prima-facie case against the appellant under the aforesaid - 6 - sections, he was charge-sheeted. Appellant pleaded not guilty and claimed to face 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. His case as emerges from the trend of the cross-examination of prosecution witnesses and also from his defence witness comes out that on 23.11.2006, an unclaimed bag was lying in front of the tea stall of the appellant at village Sainj. The police started making enquiries from the labourers and other people present there as to whom it belong, but none claimed it. Thereafter the appellant was taken by the police with them along with the bag and he alleged his false implication in the case. After closure of the evidence of the accused/appellant, an application was moved by him for re-examination of another sample of Charas in order to find out the percentage of the resin. - 7 - Vide order dated 1.8.2008, his request was allowed and the second sample of Charas was sent to FSL Junga (Shimla), for its examination. Vide report Ex.PB, the entire sample mark ‘A’ was opined to be the sample of Charas and the resin therein was found to be that of 33.35 % w/w, which was one of the ingredient of the Charas. It was also tested positive for cannabinols including the presence of tetrahydrocannabinol in the sample and the presence of eystolithic hair. The learned trial court disbelieved the defence plea and held that the contraband aforesaid were recovered from the possession of the appellant, but finding that the Charas which was found in the possession of the appellant contained 33.35% of the resin and 1.8% of morphine in the Opium sample, thus held that both the quantities were less than the commercial quantity and more than the small quantity, as such, gave the benefit of Dharam Pal Vs. State of H.P. [Cr.Appeal No.491/2003] decided on 15.5.2006 by the Division Bench of this Court, as such, convicted and sentenced the - 8 - appellant as aforesaid, which has been assailed in this appeal. The arguments were heard in this case on 18.5.2009 and the judgment was reserved. Thereafter, it was noticed that the sentence passed under Section 18 of the Act for keeping in possession the Opium by the appellant was inadequate, therefore, notice of enhancement was ordered to be given to the appellant, which was accepted by the learned counsel for the appellant, as such, no formal notice was sent and the arguments in this case were heard afresh. Sh. Parmod Singh Thakur, learned counsel for the appellant vehemently argued that no independent witness in the instant case was joined by the police in order to lend strength to their case and further that the case against the appellant was proved to be fabricated one, therefore, the recovery could not be held to be established by the prosecution beyond a reasonable doubt. It is also argued that the link evidence is not complete and the statements of the official witnesses are discrepant, which - 9 - throws a doubt on the entire case of the prosecution. Therefore, it is a fit case for the acquittal of the appellant and notice of enhancement of the sentence deserves to be discharged. Contra, Shri Vikas Rathore, learned Deputy Advocate General has supported the impugned judgment of conviction and requested for the enhancement of the sentence in accordance with law. I have given my thoughtful consideration to the rival contentions of the parties and have reappraised the evidence on record. While substantiating the case of the prosecution, PW3 ASI Lekh Ram has categorically stated during the trial of the case in the case that the appellant was found in possession of the Charas and the Opium as aforesaid. He also testified on oath that no independent witness was found at ‘Zero Point’ where the appellant was apprehended, thus, he associated two responsible police officers PW1 Tek Chand and PW2 Yoginder Paul to witness the search. In their presence, he rendered - 10 - himself to be searched by the accused- appellant, but nothing incriminating was found from him. Memo Ex.PW1/A to this effect was prepared. Thereafter he conducted the search of the bag of the accused and recovered two polythene packets containing 1.200 kilograms of Charas in the shape of ‘sticks’ and ‘rounds’ out of one packet and the another packet was containing 145 grams of Opium. Thereafter he separated samples of 25 grams each from the recovered Charas and sealed it separately with seal impression ‘T’. Thereafter he separated two samples of 25 grams each of Opium and also separately sealed in two separate parcels with seal impression ‘T’. The Charas samples were marked ‘A’ and the Opium sample as mark ‘B’. The remaining quantity of opium and Charas were sealed in the same bag with the same seal and all the five parcels were taken into possession vide memo Ex.PW1/D. The sample of seal impression ‘T’ was separately taken on a piece of cloth Ex.PW1/C and the case property was taken into possession vide recovery memo - 11 - Ex.PW1/D. Its copy was stated to have been supplied to the appellant. The appellant was arrested and the grounds of arrest were shown to him. NCB forms in triplicate were prepared on the spot. The accused and the case property both were produced before the SI/SHO Ram Karan (PW8). He further testified on oath that the special report with respect to the recovery and seizure was also sent to the Additional S.P. During the trial of the case, he identified the bag Ex.P4, Charas Ex.P5, Opium Ex.P6, which were recovered from the said bag and also the parcels Exts.P1 to P3. In cross-examination, he explained as to how the police had reached the site of incident where the appellant was apprehended. He also stated that Memo Ex.PW1/A was prepared on the spot by him and top to bottom except the FIR number was filled up on the spot. He also confirmed that column numbers 2 to 8 on the NCB forms (Ex.PW1/B) were filled up by him on the spot. He further stated that all of them left the spot after conducting the proceedings in a Tata - 12 - Sumo. Since it had become dark, he completed the proceedings with the help of search light. He further stated that he did not know whether accused Sita Ram had been running a tea-stall near the police post Sainj at a distance of about 45 yards. He denied that an unclaimed bag containing the Opium and Charas, was lying in front of his shop and a false case was planted against him. PW8 SI/SHO Ram Karan categorically stated that the accused and the case property were produced before him. He resealed the case property with seal impression ‘H’ and the sample of seal impression ‘H’ was separately taken on a piece of cloth Ex.PW8/C and he also filled in the column Nos.9 to 11 of NCB forms in triplicate, copy of one of which is Ex.PW1/B and deposited the case property including NCB forms, samples of seal with MHC Chaman Lal. In cross- examination, he denied that he did not fill in all the columns of NCB forms and that he had fabricated the proceedings. PW5 MHC Chaman Lal has admitted having deposited with him the case - 13 - property along with NCB forms, sample of seal and according to him the aforesaid case property was entered by him in the Malkhana register against serial number 142 on 23.11.2006 and he proved the abstract of entry Ex.PW5/A to be correct. He denied having fabricated the aforesaid entry and further deposed that on 26.11.2006, one sample parcel of Charas and another of Opium were sent along with sample of seals H and T, NCB forms in triplicate, copy of seizure memo and copy of FIR to CFSL Chandigarh for its chemical analysis, through PW7 C.Hem Raj vide R.C. Ex.PW5/B. After its deposit, he handed over its receipt Ex.PW5/C to him and so long as the case property remained with him, he did not temper with it. PW7 C.Hem Raj corroborated the version of PW5 HC Chaman Lal and further testified that he had deposited both the samples in CFSL Chandigarh and so long the case property remained with him, it was not tempered by anyone. PW1 HC Tek Chand and PW2 Yoginder Paul have also afforded corroboration to the version of PW3 ASI - 14 - Lekh Ram and also stated that the Charas, which was recovered from the possession of the appellant was found in the shapes of ‘sticks’ and ‘rounds’ which was 1.200 kilograms and another packet recovered was containing 145 grams of Opium. Though the case of the appellant in his cross-examination was that the bag, which contained the contraband, was unclaimed and was found abandoned in front of his tea-stall by the police, but in his statement recorded under Section 313 of the Code of Criminal Procedure, his case was denial of simplicitor. To prove the defence the appellant examined Leela Dhar (DW1) his co-villagers. It is pertinent to note that in his cross- examination, he admitted that he stated the fact of recovery of the unclaimed bag by the police from the front of the shop of the appellant, for the first time in the court and before that he did not disclose this fact to anyone, which is a quite unnatural conduct of the witness. Had this been true he would have raised hue and cry and could motivate his villagers to report the matter to the - 15 - higher authorities but in turn he opted to keep mum and not to disclose this fact to anyone and revealed it for the first time in the court is absolutely unbelievable. Thus, this fact goes to show that the witness has only deposed in favour of the appellant to save him because of his close affinity. On the close scrutiny of the evidence on record, I do not find any infirmity in the findings arrived at by the learned trial court to the extent of recovery of the contrabands which is upheld. Further non-inclusion of the independent witness is neither the requirement of law nor it was necessary as the recovery was affected from the appellant from an open place. The plea that the link evidence is not complete is also not correct. The prosecution has examined every official in whose hands the case property and samples have changed hands from the time of recovery till its examination. But however, in so far as the recovery of the Charas is concerned, it was 1.200 kilograms in the shape of - 16 - ‘sticks’ and ‘rounds’ as stated by the witnesses. The mode of taking the sample of Charas has neither been spelt out by the investigating officer nor any of the witnesses as to how the same was made a representative sample. 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 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 - 17 - 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 sent 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. 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 - 18 - 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. In the instant case, 25 grams of Charas was sent to CFSL Chandigarh and another sample of 25 grams was sent to FSL Junga. In both the reports, it was confirmed that the samples were that of Charas and the report Ex.PB pertaining to FSL Junga confirmed the resin contents 33.35% which is one of the ingredient of Charas. Thus, the prosecution could only - 19 - prove beyond doubt that the appellant was found in possession of the Charas, which was a small quantity. The remaining stuff which was in the shape of ‘sticks’ and ‘rounds’, as stated above was not sent for analysis, more specifically when it was not in the shape of a single mass, therefore, it cannot be said as to what was the remaining stuff and how many ‘sticks’ and ‘rounds’ it contained. The samples taken were not proved to be of a representative character. 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. Rigorous Imprisonment for a period of six months and to pay a fine of - 20 - Rs.10,000/- in default to pay the fine, to further undergo simple imprisonment for a period of one month. Thus, the sentence passed by the learned trial court for the possession of Charas as aforesaid is required to be reduced to the above extent. Ordered accordingly. Further on the analysis of evidence, in my opinion, the prosecution has also been able to prove beyond doubt the recovery of 145 grams of Opium from the possession of the appellant and its sample was taken from the entire recovered stuff, which was sealed and sent for its analysis to CFSL Chandigarh and vide report Ex.PA, the whole sample was found to be that of Opium. There is no evidence that the Opium so recovered was in the different shapes like Charas in this case, therefore, it stands established from the report Ex.PA that the sample so sent was that of Opium. Therefore, the sentence imposed by the learned trial court i.e. to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.2,000/- is quite inadequate, because keeping 145 grams of Opium in possession - 21 - by the appellant is a quantity more than the ‘small quantity’ and less than the ‘commercial quantity’, covered under clause (c) of Section 18 of the Act which provides for the imprisonment which may extend to 10 years and with fine which may extend to Rs.1,00,000/-. Therefore, in my opinion, the learned trial court has imposed the inadequate sentence upon the appellant which is required to be enhanced. The learned counsel for the appellant did not submit any valid reason pursuant to the enhancement notice to maintain the sentence passed by the learned trial court. In my considered opinion the appellant was found in possession of Charas and Opium as aforesaid. The learned trial court did not pass the appropriate sentence, as such, the sentence is required to be enhanced and it is ordered that the appellant shall undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.25,000/- and in default of making the payment of fine, he shall further undergo rigorous imprisonment for a period of one year for keeping in his possession 145 grams of Opium, thus, the - 22 - sentence imposed by the learned trial court stands modified to the above extent for the offence punishable under Section 18 of the Act. Both the above sentences one passed under Section 20(b)(ii)(A) and another under Section 18 Clause (c) of the Act as modified above, shall run concurrently. With the above modification in sentence(s) the appeal stands partly allowed. The appellant is in jail undergoing the sentence. The learned trial court is hereby directed to send the modified warrants of sentence, in conformity with this judgment to the Superintendent (Jail) concerned. Send down the records. (SURINDER SINGH), JUDGE. June 22nd , 2009. (Pds)