1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 669 of 2008 along with Cr.Appeal No. 670 of 2008. Decided on September 22, 2011 _____________________________________________________ Cr. Appeal No. 669 of 2008 Dola Singh …Appellant. Versus State of H.P. ...Respondent. Cr.Appeal No. 670 of 2008 Pune Ram …Appellant. Versus State of H.P. ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Dev Darshan Sud Judge. ¹Whether approved for reporting? For the appellant: Mr.Tarlok Chauhan, Advocate with Mr.Vijay Chaudhary, Advocate. For the respondent: Mr.R.K.Sharma, Senior Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General. Justice Dev Darshan Sud,J. Criminal appeal No.669 of 2008 has been preferred by Dola Singh (appellant herein) against the judgment passed by learned Special Judge, Kullu, H.P. in Sessions Trial No.3 of 2008, convicting the appellant for 2 offences punishable under Sections 18 and 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and the second appellant Pune Ram for the offence punishable under Section 29 of the NDPS Act. Criminal appeal No.670 of 2008 has been preferred by appellant Pune Ram against the same judgment. 2. The prosecution case, in brief as pleaded before the learned trial court, is that a police party consisting of Constable Gudu Ram (PW.4), Head Constable Uttam Chand (PW.5), headed by Inspector Jagdish Chand (PW.6), SHO Police Station, Banjar, were proceeding towards Palachh on 29.9.2007 at around 7.30 A.M. They were travelling in a police jeep and when they reached near Palachh Mod, both the accused were spotted while they were coming from Palachh side. On noticing the police jeep, they tried to run away from the spot which excited the suspicion of the police party, who chased and caught them. On being searched, a bag containing 2.500 kilograms of charas and 500 grams of opium were recovered from Dola Singh. The proceedings were completed on the spot, Ruqa was sent for registration of the case and the samples were sent to the Chemical Examiner for analysis. Thereafter, challan was put in the Court. 3 3. Appellant Dola Singh was charged for having committed offences punishable under Section 20 and 18 of the NDPS Act and appellant Pune Ram was charged for having committed offence punishable under Section 29 of the NDPS Act. 4. The learned Special Judge considered the evidence of the police party which includes Constable Gudu Ram (PW.4), who stated that he had accompanied Head Constable Uttam Chand (PW.5) in a jeep driven by Narain Singh along with Inspector Jagdish Chand (PW.6) on 29.9.2007. They proceeded to Palachh for patrolling duty and Naka Bandi, when they reached Palachh at around 7.30 A.M., they saw two persons coming from Palachh talking to each other. One of them was carrying a bag on his shoulder. On seeing the police jeep, they turned around and started running. This excited the suspicion of the police party, whereupon, all the three police personnel alighted from the jeep and apprehended both the appellants. The person carrying bag identified himself as Dola Singh (appellant) and second person as Pune Ram (appellant). They were apprehended at an isolated place, where no independent witnesses were available. Both the accused were searched after compliance with the provisions of the Act. The appellants were given an option of being searched in 4 presence of a Magistrate or Gazetted Officer but they opted to be searched by the police. The bag was searched on the spot and was found to contain 2.500 kilograms of charas out of which two samples of 25 grams each were taken. The samples were sealed in a polythene bag after wrapping the same in a cloth. The remaining charas weighing 2 kg.450 grams was put in the same polythene bag. In the second bag they found 500 grams of opium, out of which, again two samples of 25 grams each were taken which were put in a match box and were stitched in a cloth. Remaining opium and the remaining charas were put in the same bag. The prosecution proved on record the fact (a) that the accused were apprehended at the spot with two bags carrying contraband and that (b) they were informed that they have an option either to be searched by a Magistrate or Gazetted Officer or by the police (c) that the contraband was in fact seized from them. The first witness was PW.4 Constable Guddu Ram, who corroborates the prosecution case and in cross-examination, nothing material has been elicited from him. 5. The second witness to the search and seizure Head Constable Uttam Chand (PW.5) has corroborated the statement of Gudu Ram (PW.4). He was declared hostile as there were some contradictions in his statement recorded 5 under Section 161 Cr.P.C., and he was cross-examined by the Public Prosecutor. There were only two facts on which the Public Prosecutor questioned him, but even in his cross-examination, he supports the fact that the NCB form in triplicate prepared at the spot. The seal was handed over to him after its use, but he could not remember the facts, as he was standing in the witness box after a long time after the occurrence. He was cross-examined on behalf of the accused, but again nothing material, which would shake his testimony, has been elicited from him. 6. Inspector Jagdish Chand (PW.6) has corroborated the facts with respect to the search, seizure etc., preparing of ruqa as well as sealing of the samples and resealing of the remaining contraband. In statement under Section 313 Cr.P.C., the accused had denied the entire incident and stated that they were falsely implicated by the police in the present case. 7. Sh.Khime Ram (DW.1) has stated in his evidence that he has a Karyana shop at Palachh Mod. There are also a tailoring and tea shop. He opens his shop at 6.30 or 7.00 A.M. in the morning and his shop remain open till 7.00/8.00 P.M. He says that around 8-9 months prior to the date of which this witness was giving his evidence in the Court, i.e. 17.6.2008, he had seen both the accused, who were 6 consuming liquor on the verandah of his shop. After some time, a jeep with police arrived there and enquired as to whether they had seen anybody running. Thereupon, both the accused replied that they are not the chowkidars. At this response altercation took place between the police and the accused and the police apprehended them and took them away to the police station. In cross-examination, he says that he is familiar with the accused for the last 6-7 years. They visit his shop regularly to buy cigarette and biddi etc. He does not know the English months and dates when this occurrence took place. He then says that he did not tell anybody about the occurrence till date. He remembers the date in the Indian (desi) dates of the month etc. when this incident occurred which according to him is 12 Asoj. 8. The samples and the contraband were sent to the Chemical Analyst to the State Forensic Laboratory, Junga who vide report Ex.PA. The Chemical Analyst states that first sample is that of charas and second of opium. 9. Before the learned trial court, it was urged, that the testimony of the prosecution was not reliable as no independent witness was associated by the police, which rendered the entire case doubtful. There were contradictions in the statements of the police witnesses which were material and went to the very root of the case. 7 The most important circumstance, urged was that it has been proved on record by DW.1 Khime Ram, who was familiar with both the accused and has stated that they had been arrested by the police without any reason but only because they had an altercation with them and replied that they are not the chowkidars or watch-men to work at the behest of the police. 10. Learned trial court, on the first aspect of the matter, that no independent witnesses have been produced, holds that in cross-examination, Constable Gudu Ram (PW.4) has stated that he had gone in search of local persons upto village Gharatgar which is about 1 ½ kms. from the spot, but he could not find any independent witness. He was confronted with statement under Section 161 Cr.P.C., wherein this is not recorded. The learned trial court also holds that there is no mandatory requirement of law that non-availability of independent witnesses destroys the entire evidence led before the Court. The defence has also tried to establish, that at the relevant point of time, number of vehicles were plying on the road which suggestion was in fact denied by the witnesses. 11. Adverting to the point of law, that the testimony of police officials could not be made the basis for conviction, the learned trial court relying upon the decision of Hon'ble 8 Supreme Court in Karamjit Singh Versus State (Delhi Administration), AIR 2003 SC 1311, holds that there is no principle of law that without corroboration by independent witnesses, evidence of the police personnel, cannot be relied upon. We quote from this judgment in some detail:- “...............8. Shri Sinha, learned Senior counsel for the appellant, has vehemently urged that all the witnesses of recovery examined by the prosecution are police personnel and in absence of any public witness, their testimony alone should not be held sufficient for sustaining the conviction of the appellant. In our opinion the contention raised is too broadly stated and cannot be accepted. The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down. PW11 Pratap Singh has clearly stated in the opening part of his examination-in-chief that ACP Shakti Singh asked some public witnesses to accompany them but they showed their unwillingness. PW10 Rajinder Prasad, SI has given similar statement and has deposed that despite their best efforts no one from public was willing to join the raiding party due to the fear of the terrorists. Exactly similar statement has been given by PW9 R.D. Pandey. We should not forget that the incident took place in November 1990, when terrorism was at its peak in Punjab and neighbouring areas. The ground realities cannot be lost sight of that even in normal circumstances members of public are 9 very reluctant to accompany a police party which is going to arrest a criminal or is embarking upon search of some premises. At the time when the terrorism was at its peak, it is quite natural for members of public to have avoided getting involved in a police operation for search or arrest of a person having links with terrorists. It is noteworthy that during the course of the cross-examination of the witness the defence did not even give any suggestion as to why they were falsely deposing against the appellant. There is absolutely no material or evidence on record to show that the prosecution witnesses had any reason to falsely implicate the appellant who was none else but a colleague of theirs being a member of the same police force. Therefore, the contention raised by Shri Sinha that on account of non-examination of a public witness, the testimony of the prosecution witnesses who are police personnel, should not be relied upon has hardly any substance and cannot be accepted”. (Para 8) 12. We also note that in Aher Raja Khima Versus State of Saurashtra, AIR 1956 SC 217, the Court held: “...........40. The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good too the public. It can only run down the prestige of the police administration.” (Para 40) This principle was followed by this Court in Gurbax Singh Versus State of Himachal Pradesh, 1977 Cr.L.J. 1676. In Girja Prasad Versus State of M.P. 2007 (7) SCC 625, the Supreme Court again reiterates that conviction based on evidence of the police cannot be 10 faulted with in case it is reliable and trustworthy after careful scrutiny of their evidence, it is not necessary that such a evidence has necessarily to be corroborated by independent witnesses. The principle of law is now well established that the testimony of a police witness does not require corroboration as a rule of law but it is the quality of the evidence which has to be considered. 13. We find that three police witnesses Constable Gudu Ram (PW.4), Head Constable Uttam Chand (PW.5) and Inspector Jagdish Chand (PW.6), who were on patrolling duty apprehended both the accused, have corroborated each other on material facts and therefore, cannot be disbelieved only for the reason that they are serving in the police force. The evidence of these witnesses is clear, unequivocal and corroborative of the fact that at that particular point of time there was no person present on the spot and there was no traffic. Even attempt was made by Constable Gudu Ram (PW.4) to associate some independent witnesses but despite efforts made by him he could not find any person. We find that the learned Special Judge has correctly appreciated the evidence and the very applicability of this point. 14. We concur with the learned trial court that there was no motive of the police to implicate the accused merely 11 because they entered into an alleged altercation with the police, who had enquired from them as to whether they had seen some persons running away, on which the accused had replied that they were not their chowkidars. This is too far-fetched situation which has been established by the police personnel. We cannot accept the fact that DW.1 is speaking truth. If we accept this evidence what we find is that huge quantity of charas and opium planted on the accused. How and what circumstances, this quantity was arranged, is not clear and in any event the Supreme Court in Fredrick George Versus State of Himachal Pradesh, 2002 Cr.L.J. 4600, holds that such quantity cannot be planted by the police. We find that veracity of the testimony of the prosecution witnesses has not been effaced. 15. Learned counsel for the appellants urges that conviction of the appellants, for having in possession of charas, cannot be sustained in view of the fact that the report of the Chemical Analyst (Ex.PA) does not establish that the contraband is charas. Adverting to the report we find as under:- “ (1) Various scientific tests such as physical, identification, chemical and chromatographic tests are carried out in the Laboratory with the exhibit P/1 under reference. The tests performed above indicated cannabinols including the presence of tetrahydrocannabinol in both the sample. The microscopic examination indicated the presence of 12 cystolithic hair in both the sample. Charas is a resinous mass and resin is an ingredient of charas which on testing was found present. And the quantity of resin in cannbis plant/charas sample varies from one area to the other area. The result thus obtained is given below. The exbibit P/1 is a sample of CHARAS. (2) various scientific tests such as physical test, colour test, Chemicals test and chromatographic analysis were carried out in the Laboratory with the exhibit P/ 2 under reference which gave positive results for the presence of morphine, codeine, papaverine and meconic acid which are active constituents of opium. On its quantitative analysis. The percentage of morphine was found 1.20% w.w. In the exhibit P/2. The results thus obtained is given below: Exhibit P/2 is a sample of OPIUM. The requirement of what the report should establish was the subject matter of consideration by a Division Bench of this Court in Sunil Versus State of Himachal Pradesh 2010 (1) Shimla Law Cases 192, where similar question arose for consideration as to whether the report of the Chemical Examiner proved that the contraband was charas or not. In that case, this Court holds:- “...........Raj Kumar's case “...............11. Various scientific tests such as physical, identification, chemical and chromatographic tests were carried out in the Laboratory with the exhibit P/ 1 and P/2 under reference. The tests performed above indicated cannabinols including the presence of tetrahydrocannabinol in both the samples. The microscopic examination indicated the presence of cystolithic hair in both the samples. Charas is a 13 resinous mass and resin is an ingredient of charas which on testing was found present. The quantity of resin in cannabis plant/charas sample varies from one area to the other area. The result thus obtained is given below. For both the samples.” The exhibits P/1 and P/2 are the samples of 'CHARAS' Karuna Shankar Puri's case “various scientific tests such as identification, chemical and chromatographic were carried out in the Laboratory with the exhibit P/1 reference. The tests performed above indicated cannabinols including the presence of tetrahydrocannabinol in the sample. The microscopic examination indicated the presence of cystolithic hair in the sample. The result thus obtained is given below. The exhibit marked as P/1 is a sample of 'CHARAS” “.............................29. As noticed hereinabove, the only tests , which were conducted by the Experts, were to find out tetrahydrocannabinol or cystolithic hair. They found tetrahydrocannabinol but did not indicate in their reports the percentage thereof. While in the witness-box also, the Experts did not say what was the percentage of tetrahydrocannabinol in the samples. Specific category of a cannabis product, like charas, Ganja, or mixture, as defined in Section 2(iii) of the Act, or anything else, like Bhang etc., can also be determined, with reference to the percentage of tetrahydrocannabinol in the stuff. As noticed hereinabove, percentage of tetrahydrocannabinol varies from one product to other product of cannabis. 30. According to Parikh's Text Book of Medical Jurisprudence, Forensic Medicine and Toxicology, in the case of Bhang it is 15 per cent, in the case of Ganja it is about 25 and 40 per cent. When the percentage of tetrahydrocannabinol in the sample is not indicted in the report nor had any test been conducted to ascertain whether the stuff was Charas, that is to say resin, or some other preparation of cannabis, it 14 cannot be said that the stuff was in fact Charas. As regards cystolithic hair, these being the fibre of cannabis plant, are bound to be present in all the products of cannabis. It is quite likely that the samples were only of Bhang, i.e. the dried leaves of cannabis plant, which is also supposed to contain 15 per cent concentration of tetrahydrocannabinol. Possession of only the leaves or the seeds of cannabis plant is no offence, because it is only the Charas, Ganja or mixture, as defined in Section 2(iii) of the Act, which is an offence, under Section 20 of the Act. Leaves and seeds of cannabis plant are not included either in the definition of Charas or Ganja and are rather specifically excluded from the definition of Charas unless accompany the flowering and fruiting tops of the plant. 31. In view of the abovestated position, we hold that Experts' reports is none of these six cases prove that the stuff recovered from the appellants / accused was Charas. The possibility of the stuff recovered from them being only Bhang, i.e. the dried leaves of cannabis plant, possession of which is no offence, cannot be ruled out”. (Paras 11, 29, 30 and 31) This judgment was later on followed and applied by this Court in State of H.P. Versus Dile Ram, 2010 (3) Himachal Law Reporter 1238, State of Himachal Pradesh Versus Neel Chand and others, 2010(3) Himachal Law Reporter 1220 and Bajinder Singh Versus State of H.P., 2010 (3) Himachal Law Reporter 1738, in all the three judgments one of us Hon'ble Justice R.B.Misra, was a Member of the Bench. We also find this decision reiterated in State of H.P. Versus Prakash Chand 2010(1) Himachal Law Reporter 598. We need not multiply precedent any 15 further but what we find is that the analysis of the contraband has not been carried out in accordance with law, as laid down in Sunil Kumar's case (supra) and thus it cannot be said that the accused was in fact in conscious possession of charas. 16. Adverting to the question of possession of opium, the learned counsel for the appellants urges that the content of morphine has not been properly detected / analyzed. We cannot accept this submission. In Harjit Singh Versus State of Punjab (2011) 4 SCC 441, Hon'ble Supreme Court holds:- “.............22. Thus, as the case falls under clause (a) of Section 2(xv), no further consideration is required on the issue. More so, opium derivatives have to be dealt with under Entry 93, so in case of pure opium falling under clause (a) of Section 92 is exclusively applicable for ascertaining whether the quantity of opium falls within the category of small quantity or commercial quantity. 23. The judgment is E. Micheal Raj has dealt with heroin i.e. diacetylmorphine which is an “opium derivative” within the meaning of the term as defined in Section 2(xvi) of the NDPS Act and therefore, a “manufactured drug” within the meaning of Section 2 (xi) (a) of the NDPS Act. As such, the ratio of the said judgment is not relevant to the adjudication of the present case. 24. In Amarsingh Ramjibhai Barot Versus State of Gujarat, (2005) 7 SCC 550, this Court dealt with a case where the black-coloured liquid substance was taken as an opium derivative. The FSL report had been to the effect that it contained 2.8% anhydride morphine, apart from pieces of poppy (Posedoda) flowers. This was considered only for the purpose of bringing the substance within the sweep of Section 2(xvi) (e) as 16 “opium derivative” which requires a minimum 0.2% morphine. 25. The notification applicable herein specifies small and commercial quantities of various narcotic drugs and psychotropic substances for each contraband material. Entry 56 deals with heroin, Entry 77 deals with morphine, Entry 92 deals with opium, Entry 93 deals with opium derivatives and so on and so forth. Therefore, the notification also makes a distinction not only between opium and morphine but also between opium and opium derivatives. Undoubtedly, morphine is one of the derivatives of the opium. Thus, the requirement under the law is first to identify and classify the recovered substance and then to fine out under what entry it is required to be dealt with. If it is opium as defined in clause (a) of Section 2(xv) then the percentage of morphine contents would be totally irrelevant. It is only if the offending substance is found in the form of a mixture as specified in clause (b) of Section 2(xv) of the NDPS Act, that the quantity of morphine contents becomes relevant. 26. Thus, the aforesaid judgment in E. Micheal Raj (2005) 7 SCC 550, has no application in the instant case as it does not relate to a mixture of narcotic drugs or psychotropic substances with one or more substances. The material so recovered from the appellant is opium in terms of Section 2(xv) of the NDPS Act. In such a situation, determination of the contents of morphine in the opium becomes totally irrelevant for the purpose of deciding whether the substance would be a small or commercial quantity. The entire substance has to be considered to be opium as the material recovered was not a mixture and the case falls squarely under Entry 92. undoubtedly,