IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 455/2010 Date of decision: 11.8. 2011 Chaman Singh …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. Ramesh Sharma, Advocate. For the respondent : Mr. P.M. Negi, Dy. Advocate General Surinder Singh, J. (Oral). Appellant hereinafter referred to as the ‘accused’ was convicted by the learned trial Court for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short “the Act” for allegedly keeping in possession about 240 gms. of charas, i.e., resin of cannabis plant in the recovered stuff of 1 kg. and 200 gms. As such sentenced to undergo 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - imprisonment for a period of four years and to pay a fine of ` 25,000/- with the default clause. (i) Accused has challenged his conviction and sentence in the present appeal. (ii) Briefly stated, the prosecution case is that on 23.11.2009 around 2 a.m. PW7 Head Constable Deva Nand along with other police officials were on routine checking/petrol duty. The police party reached at ‘Zero Point’ Jassourgarh. Around 4.45 a.m. they spotted the accused coming from a opposite direction with the help of search light. On seeing the police party, accused tried to escape. Immediately he was over-powered. He was carrying a pithu bag on his back. On getting suspicious, he was apprehended by the police. Thereafter police party gave personal search to the accused but nothing incriminating was found in their possession. To this effect memo Ext. PW1/C was executed. PW7 Head Constable Deva Nand conducted the search of Pithu bag Ext. P2 and recovered 1.200 gms. stuff. On having been satisfied that this is charas by smell and experience, was sealed with seal impression of English alphabet ‘B’ in the same pithu bag. The specimen seal impression Ext. PW1/A was taken on a piece of cloth. - 3 - (iii). The said Head constable aforesaid filled- in NCB forms in triplicate on the spot and facsimile of the seal was also taken against the relevant column of the NCB forms. Case property was taken into possession vide memo Ext. PW1/D. Ruka Ext. PW7/A was prepared and sent through constable Som Parkash (PW2) for the registration of the case which culminated into FIR Ext. PW6/A. (iv) The Special report Ext. PW5/B was also sent to the Superintendent of Police, Chamba within the statutory period. (v) Accused was arrested and the grounds of arrest were informed to him in writing. Thereafter the accused as well as the case property were produced before PW6 Inspector SHO Brij Mohan Sharma who re-sealed the bag-parcel with his seal impression ‘X’ at five places and also took the facsimile of the seal used by him on the case property on the NCB forms against the relevant column, after taking the specimen seal impression Ext. PE4/C. The seal after its use was handed over to Constable Deepak Kumar. He also prepared the re- sealing memo Ext. PW4/A in the presence of PW4 Madan Lal and Constable Deepak Kumar. - 4 - (vi) Thereafter the case property as well as the other documents were deposited with PW4 MHC Madan Lal. He made its entry into Malkhana Register the abstract of which is Ext. PW4/B. (vii) On 24.11.2009, the recovered stuff in its entirety was sent to Forensic Science laboratory, Junga vide R.C. No. 87/2009 ( Ext.PW3/A) through PW3 constable Ravinder Kumar which was deposited by him in the Laboratory on 25.11.2009. After obtaining receipt on the RC, it was re- deposited with PW4 MHC Madan Lal. (viii). On analysis, vide report of the Examiner Ext. PW7/D, the quantity of resin was found in the entire stuff to the extent of 19.66% w/w which was of a cannabis plant. Microscopic examination also indicated the presence of cystholithic hair. He also opined that the charas is a resinous mass and resin is an active ingredient of charas, which on testing was found present in the said exhibit. (ix) During the investigation, police also prepared site plan of the place of the alleged recovery and also recorded the statements of the witnesses under Section 161 of the Code of Criminal Procedure. - 5 - (x) On 24.11.2009 accused was produced before the learned Judicial Magistrate. Thereafter he was remanded to judicial custody, later he was granted bail. 2. After completing the investigation, challan was presented in the Court for the trial of the accused. He was accordingly chargesheeted for the offences aforesaid. The accused adjured his guilt and claimed trial. 3. To prove its case, prosecution examined its witnesses. The accused was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor. No evidence in defence was led by him. 4. At the end of the trial, he was convicted and sentenced as aforesaid for keeping in possession “non-commercial” quantity of charas. 5. Shri Ramesh Sharma, learned counsel for the accused vehemently argued that the police did not join independent witnesses at the time of search and the statements of the official witnesses are contradictory on material points and also that the link evidence in the instant case is not complete. Therefore, the accused deserves to be acquitted. - 6 - 6. Contra Shri P.M. Negi supported the impugned judgment of conviction and sentence and further argued that there is no requirement of law to join the independent witnesses at the time of the search when the recovery is effected from an open/ public place. He also ventilated that the recovery was made in the wee hours of the morning when nobody was available and inhabited area was around 2 km away from the place of recovery. He further countered the arguments of the learned counsel for the accused that there are no material contradictions in the statements of the official witnesses which go to the root of the case and link evidence in the instant case is complete. 7. I have given my thoughtful consideration to the rival contentions of the parties and have closely and cautiously examined the evidence on record. 8. In the light of the story, as projected by the prosecution and also the fact that the place of the alleged recovery was a secluded place though a public highway, but there is no evidence that at the time of the alleged recovery, vehicles were plying on the road to enable the police to associate any of the witness at the time of the search. Further, - 7 - the search is from the bag to which the accused was carrying at an open place therefore, the rigor of sub-section 4 of Section 100 of the Code of Criminal Procedure is not applicable to the fact situation. Therefore, non-association of the independent witnesses in the present case is not fatal to the case of the prosecution. However, the statements of the official witnesses need to be closely examined. 9. The learned counsel for the accused pointed out that PW1 Sandeep Kumar constable stated that the recovery was from a pink envelop and this fact has not been testified by any other official witnesses, but legally it is not a contradiction at all, rather in the ruka Ext. PW7/A and in the seizure memo which is prepared at the time of the recovery, there is clear-cut mention that charas was in the pithu bag Ext. P2 wrapped in a pink colour envelop. So non-mentioning of the pink envelop by the other official witnesses except PW1 aforesaid is also not a contradiction and no other witness stated that it was of a different colour. The learned counsel further pointed out that none of the witnesses except PW1 Sandeep Kumar stated that Ravinder Kumar switched on search light when the accused was spotted, thus this lack corroboration. On the perusal - 8 - of statement of constable Ravinder Kukmar, it is specifically stated that he was having search light with him and the accused was nabbed by other police as he was having search light. But there is no suggestion to any of the official witnesses that at the relevant time, respondent was not apprehended by the police. Further it is not his case as to why the police has chosen to implicate him in a false case. Even when he was produced before the Magistrate within 24 hours of his arrest on 24.11.2009, he did not make any complaint to the Magistrate that a false case was fabricated against him. Further, according to the learned counsel for the accused none of the witness except the Investigating Officer (PW7) stated that the seal impression was taken on a separate piece of cloth whereas this fact stands testified in the statement of PW7 Head Constable Deva Nand. Therefore it is immaterial that the other witness should also have repeated the same thing, particularly when seal impression has been exhibited during the trial of the case without any objection and there is no cross-examination to that effect. 10. Therefore, I do not find any of the above contradictions which render the case of the prosecution doubtful. - 9 - 11. As far as the link evidence in the instant case is concerned PW7 Head Constable Deva Nand testified that after the above stuff was recovered it was sealed with seal impression ‘D’, thereafter produced before PW6 Inspector SHO Brij Mohan who re-sealed the same with his own seal ‘X’. PW7 as well as re-sealing Officer (PW6) both have affixed facsimile of the seals used by each of them on the NCB forms which were prepared in triplicate and those forms along with case property were deposited with MHC Madan Lal who deposited it in the Malkhana and its entry was also made in the Malkhana Register, the abstract of which is also placed and proved on the record and nothing material could be extracted in the statements of the aforesaid witnesses that these entries were false. It also stands proved that on 24.11.2009 the whole of the stuff was taken for forensic examination vide R.C No. 87/2009 (Ext. PW3/A) by PW3 Ravinder Kumar along with documents, i.e., NCB forms with two samples of seals ‘D’ and ‘X’, one copy of seizure memo and the photo copy of the FIR and these were received in the Laboratory which fact has been testified by Constable Ravinder Kumar himself during the trial of the case. This stuff was received in - 10 - the Laboratory the description of the parcel has been given by the Chemical Examiner against column No. 7 which clearly suggests that the parcel which was received in the Laboratory was having the seal impression aforesaid which were found in tact and tallied with the specimen seal sent by the forwarding authority on the form and on examination resin quantity of cannabis plant was found to the extent of 19.66% w.w. Therefore, there is no break in the link from the time of recovery of the contraband till its examination in the Laboratory. 12. For the reasons aforesaid, I find no error in the conviction of the accused recorded by the learned trial Court for the offence charged. 13. In so far as the sentence is concerned, according to the learned counsel for the accused there has been 19.66% w.w. resinous mass in the recovered stuff which comes to around 230 grams and the sentence imposed by the learned trial Court is excessive in view of the quantity of the contraband. The quantity to which the accused is found to have kept in possession is ‘non-commercial’ quantity. Thus substantive imprisonment appears to be a bit higher as such it is reduced to three years instead of four years, as awarded by the learned trial - 11 - Court, without disturbing the fine and default clause. Thus, ordered accordingly. 14. For the above reasons, the appeal sans merit hence dismissed. However, sentence is modified to the above extent. 15. Since the accused is undergoing sentence, the learned trial Court is directed to send the modified jail warrant to the Superintendent of Jail concerned in conformity with the judgment of this Court. Send down the record. August 11, 2011 (Surinder Singh), (cm) Judge