IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 47 of 2008 along with Cr. Appeal No. 44 of 2008 Decided on July 6, 2010 _______________________________________________________ 1. Cr.Appeal No. 47 of 2008 Nagender Shah …Appellant Versus State of H.P. …Respondent. ______________________________________________________ For the Appellant : Mr. Chaman Negi, Legal Aid Counsel. For the Respondent: Mr. Anil Jawal, DeputyAdvocate General, with Mr. J.S. Rana, Assistant Advocate General. _______________________________________________________ 2. Cr. Appeal No. 44 of 2008 Yusuf Mohammad …Appellant. Versus State of H.P. …Respondent _______________________________________________________ For the Appellant : Mr. Anoop Chitkara, Advocate. For the Respondent: Mr. Anil Jawal, DeputyAdvocate General, with Mr. J.S. Rana, Assistant Advocate General. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? Yes/No Justice R.B. Misra,J. The Criminal Appeal No. 47 of 2008 has been preferred by appellant/convict Yusuf Mohammad (in jail) through Mr. Anoop Chitkara, Learned Advocate, and Criminal Appeal No. 44 of 2008 has been preferred by appellant/convict Nagender Shah (through jail) and Mr. Chaman Negi, is representing him as a Legal Aid Counsel, 2 The aforesaid Criminal Appeals have been preferred under Section 374 (2) of the Code of Criminal Procedure read with Section 36-B of NDPS Act, against the judgment dated 17th December, 2007, passed by learned Special Judge, Chamba Division, Chamba, District Chamba, Himachal Pradesh, in Sessions case number 8-K/VII/2007, whereby learned Trial Court has convicted both the appellants under Section 20 (b) (ii) (C) and 29 (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and both the appellants have been sentenced under Section 20 (b) (ii) (C) and 29 (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short called as NDPS Act) to undergo rigorous imprisonment for Ten Years and also to pay fine of Rs.1,00,000/-. In default of payment of fine, further rigorous imprisonment for a period of two years. 2. Since, both the appeals have been preferred separately against the common judgment adjudicating the cases of both the appellants/convicts, as such, these appeals are taken up together for the adjudication and disposal. 3. In order to adjudicate the criminal appeal, it is necessary to give the factual background of the case. On the intervening night of 6/7.1.2007, the police party headed by Inspector SHO Surinder Sharma, while on patrolling reached at Ghurkari Chowk at about 11.45 P.M., where two persons, sitting in the rain shelter, after seeing the police vehicle started running away and both these persons were over-powered by the police party. On enquiry, they disclosed their names as Nagender Shah and Yusuf Mohammad. Appellant/convict Nagender Shah was carrying one bag over his shoulder and on search of the said bag, one plastic packet was found containing charas and on weighing it was found 1 Kg 500 grams charas and out 3 of which two samples of 25 grams each were taken out separately and were put into different packets duly sealed with seal ‘K’ and the remaining charas was also put into a separate packet and sealed with seal ‘K’. Rukkawas sent from the spot to the police station, on the basis of which FIR was registered, and both the Appellants/convicts were arrested. Since no independent witnesses were available, it being almost midnight of winter months, therefore, recovery of charas seizure putting seal and sending of samples to the chemical examiner were made in presence of police officials as prosecution witnesses. After investigation, both the appellants/convicts were charged for offence under Section 20 (b) (ii) (C) and Section 29 (1) of ND & PS Act, and the case was committed to the sessions trial. 4. In order to prove its case, the prosecution examined as many as ten prosecution witnesses, whereas, the appellants / convicts in their statements under Section 313 of Cr.P.C., have denied the prosecution case and have shown their innocence. 5. On scrutiny of the prosecution witnesses and material on record, we notice that PW.1 SI Kamal Jit Singh, PW.2 Yunus Mohammad, PW.3 H.C. Subhash Chand, PW.4 Harbans Lal, PW.5 HC Joginder Singh, PW.6 HHC Som Raj, PW.7 Pappu, PW.8 Gurdass Ram, PW.9 Inspector Surinder Sharma and PW.10 H.C. Kuldeep Singh, were examined as prosecution witnesses. 6. PW.1 SI Kamal Jit Singh, has stated that on 7.1.2007, he accompanied SHO Surinder Sharma along with other police officials, while on way back from Nagrota Bagwan to Kangra in the official vehicle and when reached at Ghurkari at about 11.45 P.M., two persons were found sitting in the rain shelter and these persons started running away after seeing the police party but these persons 4 were overpowered. On enquiry, these persons disclosed their names. Appellant/convict Nagender Shah was carrying a bag over his shoulder and on checking the bag, a plastic packet was found in which charas in the shape of Baties (sticks/wicks) were found. On weighting, the total charas 1 Kg 500 grams were found and out of this charas two samples of 25 grams each were taken and remaining charas was put into same plastic cover with seal ‘K’ and remaining two parcels of samples separately put into different packets and duly sealed with seal ‘K’. The charas as well as samples were taken into possession vide Memo Ex.PW.1/A over which, PW.1 has signed at encircled portion ‘A’ and HC Tilak Raj also put the signatures on the same. 7. In his cross-examination, PW.1 has stated that there are 20-25 shops situated in Ghurkari Chowk and there were about 10 tea shops at Ghurkari Chowk, and the passengers used to get down from the buses at Ghurkari chowk and also used to board the buses. He has further stated that Up-Pardhan of the area is also running a shop at Ghurkari chowk and also resides there. On enquiry, the Up- Pardhan was not available in his house. According to PW.1 he was sitting in the Gypsy on the back portion and the persons in the rain shelter were visible from the distance of 30-40 yards. There is provision of electric lights on the spot and after seeing the police party, both the accused ran away from the spot. However, they were overpowered by all the police officials at a distance of 10-15 steps. According to PW.1, all the proceedings were conducted on the spot. 7. PW.2 Yunus Mohammad, said to be brother of appellant/convict Yusuf Mohammad, has stated in his cross- examination that the attendance register was not taken into 5 possession in his presence and his signatures were obtained on a blank paper. As such, PW.2 was not found supporting the prosecution case. 8. PW.3 H.C. Subhash Chand, has stated that on 8.1.2007, HHC Kuldeep Singh brought special report to be delivered to Superintendent of Police, Kangra, and the same was handed over to the PW.3. This witness is also not very material for the prosecution case. 9. PW.4 HHC Harbans Lal has stated that on 8.1.2007, he remained posted at Police Station, Kangra, when MHC Joginder Singh handed over to him one sealed parcel to be delivered at CFSL, Chandigarh (Central Forensic Science Laboratory) and it was delivered along with sample seal. On 8.1.2007, sample was returned with the objection and again it was deposited and thereafter, on 11.1.2007 PW.4 handed over the same seal impression along with sealed parcel of the sample which was delivered at CFSL, Chandigarh and PW.4 brought the receipt after making the delivery. 10. PW.5 H.C. Joginder Singh has stated that on 7.1.2007, Additional SHO/SI Gurdas Ram deposited one sealed packet duly sealed with seals ‘K’ and ‘M’ containing charas and also deposited two samples part duly sealed with seals ‘K’ and ‘M’ alongwith NCB (Narcotic Control Bureau) form and the entry was incorporated into Malkhana register. Thereafter, on 8.1.2007, one sealed parcel of sample along with NCB form were handed over with HHC Harbans Lal to be delivered at CFSL, Chandigarh. 11. In the cross-examination of PW.5, has stated that there is no entry in the Malkhana register regarding deposit of NCB form along with the sample as well as bulk of the contraband items. PW.5 has 6 further stated in his cross-examination that it is correct that HHC Harbans Lal was handed over the sample on 8.1.2007 to be delivered at CFSL, Chandigarh and thereafter he did not turn up. From the testimony of PW.4 Harbans Lal, PW.5 HC Joginder Singh has handed over him to a sealed parcel to be delivered at CFSL, Chandigarh along with sample seal on 8.1.2007 and sample was returned with the objection and thereafter on 11.1.2007, PW.4 handed over the same seal impression of sample to CFSL, Chandigarh. 12. From the testimony of PW.5 HC Joginder Singh, nothing has been revealed that on 8.1.2007, sample was returned with the objection and again it was deposited and thereafter on 11.1.2007, the sample was handed over with seal impression along with seal parcel for making the delivery to CFSL, Chandigarh. PW.5 HC Joginder Singh has stated that on receiving one sealed packet, duly sealed with seals ‘K’ and ‘M’ containing charas and also two sample parts sealed with seals ‘K’ and ‘M’ with NCB form in Malkhana. Thereafter on 8.1.2007, one sealed parcel of sample along with NCB form were handed over PW.4 HHC Harbans Lal, but nothing is known from the testimony of PW.5 HC Joginder Singh that as to when the sample was returned with the objection and through whom the samples were returned and whether after return the samples were again put in the Malkhana and initially after depositing the sample as well as sealed packet on 7.1.2007 in Malkhaha, then how the same was taken out from the Malkhana and under what circumstance, again sample was handed over to PW.4 Harbans Lal, who thereafter, handed over the same with seal impression on 11.1.2007 to CFSL, Chandigarh. 13. PW.6 HHC Som Raj, said to be associated in investigation, has stated that in his presence Yunus Mohammad 7 produced one attendance register of his brother Yusuf Mohammad appellant/accused, which was taken into possession vide memo Ex.PW.2/A. HHC Hoshiar Singh as well as Yunus Mohammad put their signatures on Memo Ex.6.B. PW.6 in his cross-examination has stated that there is no paging in the register Ex.PW.6/A. 14. PW.7 Pappu, a labourer, who had been working with Anupam Lal, Contractor, is of no help to the prosecution case as he has been declared hostile. 15. PW.8 Gurdas Ram stated in view of the prosecution case, that on 7.1.2007, SHO/Inspector Surinder Sharma produced one sealed parcel along with another two sealed sample parcels duly sealed with seal ‘K’ which were re-sealed by PW.8 with seal ‘M’. The specimen impression of the same is Ex.PW.8/C and was deposited in Malkhana. In cross-examination, PW.8 has stated that after use of the seal remained with PW.8, however, PW.8 was not associated as a witness at the time of re-sealing the case property including sample part. 16. PW.9 Inspector Surinder Sharma, the main prosecution witness in support of the prosecution case, has stated that on intervening night 6/7.1.2007, after seizure of 1Kg 500 grams of charas from a bag being carried by Nagender Shah appellant/convict, two samples of 25 grams each were taken and put in to a separate packets duly sealed with seal ‘K’ and the bulk of charas was also put into different packet duly sealed with seal ‘K’. PW.9 sent the Rukka Ex.PW.9/B through HHC Sanjeev Kumar. PW.9 has taken into possession bag Ex.P1, plastic Ex.P2, charas Ex.P3 and sealed samples Ex.P4 vide memo Ex. PW.1/A. PW.9 has also sent a special report, Ex.PW.8/A, on 8.1.2007 through HHC Kuldeep Chand to 8 Superintendent of Police. On 12.1.2007, brother of Yunus Mohammad, brother of appellant/convict Yusuf Mohammad, produced an attendance register in which attendance of the appellant/convict Nagender Shah has been shown and the same was taken into possession vide Memo Ex.PW.6/B. PW.9 in his cross-examination, has stated that electricity was available on the spot, but PW.9 has not shown the electric lights on the spot map Ex.PW.9/B, however, the appellants/convicts were visible from the vehicle, as they were sitting inside the rain shelter at left corner.There were 20-25 steps at Ghurkari Chowk including 4-5 tea shops. PW.9 has further stated that appellant/convict Yusuf Mohammad is resident of village at a distance of about 25 Km from his village, andthat register Ex.PW.6/A contained the entries for the month of December, 2006 to January, 2007. 17. PW.10 HHC Kuldeep Singh was handed over the special report to him to be delivered to Superintendent of Police, which accordingly delivered by PW.10. 18. From the testimonies of prosecution witnesses, we notice that PW.2 did not support the prosecution case and PW.2 was declared hostile. No independent witnesses were associated except PW.2 Yunus Mohammad, an agriculturist, brother of appellant/convict Yusuf Mohammad as well as PW.7 Pappu doing the work of labourer, who too has not supported the prosecution case. Besides them neither any independent witness was associated nor examined. According to the prosecution, at midnight, independent witnesses were not available despite the endeavour having been made by the prosecution. 9 19. Mr. Anoop Chitkara, Learned counsel for appellant/convict has made the following submissions:- (i) Since the case of the prosecution is based on the statements of the police officials, therefore, in absence of independent witnesses, their testimonies have to be seen with greater care and caution and the aspect to be corroborated by material witnesses. (ii) The substance, which has been tested by the Laboratory vide report Ex.PW.9/J to be the charas, was in fact the sample drawn from the bulk seized from appellant/convict Nagender Shah. (iii) No criminal offence has been made out against Appellant/convict Yusuf Mohammad under Section 29 (1) of the ND&PS Act; (iv) The possibility of the alleged charas being only Bhang i.e. the dried leaves of cannabis plant, the possession of which is no offence, cannot be ruled out and hence, no offence is made out under Section 20 of NDPS Act. 20. The recovery of charas was said to have been made from the appellant/convict Nagender Shah, who was accompanied by appellant/convict Yusuf Mohammad, however, both were charged under Sections 20 (b) (ii) (C) and Section 29 (1) of the NDPS Act. Whereas, appellant/convict Yusuf Mohammad has nothing to do as he was simply accompanying Nagender Shah and he was having no 10 knowledge of anything carried by appellant/convict Nagender Shah in his bag. 21. According to Mr. Anoop Chitkara, Section 8 of NDPS Act deals with prohibition and Section 20 deals with punishment in contravention with cannabis plant and Section 29 deals with punishment in respect of abetment and criminal conspiracy. Abetment has been defined in Section 107 of IPC and criminal conspiracy has been provided under Section 120B of Indian Penal Code. But appellant/convict Yusuf Mohammad by virtue of his presence cannot be said to be abettor for the act and conduct of Nagender Shah, as he was ignorant of material, if any, in possession of appellant/convict Nagender Shah. It has also been submitted by Mr. Anoop Chitkara appearing on behalf of appellant/convict Yusuf Mohammad, that criminal conspiracy is not prescribed and covered under Sections 8 and 20 of the NDPS Act, as such, appellant/convict Yusuf Mohammad cannot be held guilty of the offence, if any, done by appellant/convict Nagender Shah. It has also been argued by Mr. Anoop Chitkara, that prosecution has not been able to prove from statements of prosecution witnesses or on the basis of material on record that appellant/convict Yusuf Mohammad has abetted and conspired with appellant/convict Nagender Shah, whereby later one might have committed the alleged offence. As has been submitted by learned counsel appearing on behalf of appellant/convict Yusuf Mohammad cannot be convicted either under Section 20 (b) (ii) (C) or under Section 29 (1) of the NDPS Act, as the alleged charas recovered was not being carried by appellant/convict Yusuf Mohammad and in absence of any proof of abetment and conspiracy with appellant/convict Nagender Shah, who even if, has been found to 11 have carried not the charas but something else, in such a condition also, neither appellant/convict Yusuf Mohammad nor appellant/convict Nagender Shah could be convicted under Section 20 (b) (ii) (C) or Section 29 (1) of the NDPS Act. For convenience Section 20 (b) (ii) (C) and Section 29 (1) of the NDPS Act are quoted as under:- Section 20 (b) (ii) (C) Punishment for contravention in relation to cannabis plant and cannabis- Whoever , in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder:- (a) cultivates any cannabis plant; or (b) produces, manufactures, possesses sells, purchases, transports, imports inter-State or uses cannabis, shall be punishable (i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause (b),- “(C) and involves commercial quantity, with rigorous imprisonment for term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees.” Section 29 (1) Punishment for abetment and criminal conspiracy.- “(1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code, be punishable with the punishment provided for the offence.” 22. The prosecution has not been able to prove that Nagender Shah was working with Yusuf Mohammad, as the register 12 was not reliable document, as the same was neither an official document nor was maintained in routine manner. Nothing substantial could be derived or proved by the prosecution to associate appellant/convict Nagender Shah with Yusuf Mohammad, unless conspiracy or abetment is proved. 23. In view of his submissions of Mr. Anoop Chitkara the decision of Gangaram Rama Gundkar versus The State of Maharashtra, 2002 Drugs Cases (Narcotics) 420 is relevant. For convenience paragraph 26 is referred as under:- “26. The deceased accused Gangaram was charged with the offence under Section 20 (b) (ii) (i) NDPS Act for unauthorized possession of contraband Ganja. Accused No.2 Laxmibai who is now the remaining appellant in this appeal was charged under Section 29 read with Section 20 (b) (i) of NDPS Act on the allegation of having abetted the commission of offence by accused No.1 Gangaram. The learned Additional Public Prosecutor submitted that there were only two members in the house, one of whom was appellant Laxmibai; The house was consisting of 2 rooms only. So, Laxmibai was supposed to have the knowledge of the contraband which was kept in cupboard in one room. Even if it is accepted that Ganja was found in the cupboard in the house of the accused persons, it must be under the control and dominion of deceased accused Gangaram he being the head of the family. Laxmibai is not charged with the offence of possession of Ganja. She is charged with having abetted the commission of offence by 13 Gangaram. No overt act is alleged on her part showing as to in what manner she was assisting accused Gangaram. The APP contended that she was supposed to have knowledge about the Ganja in the house. Mere knowledge would not be sufficient to constitute abetment. Probably the learned APP wanted to raise an inference on the basis of knowledge that accused Laximbai was assisting Gangaram. However, it cannot be presumed that appellant Laxmibai was assisting Gangaram. However, it cannot be presumed that appellant Laxmibai was also having knowledge of said Ganja because accused Gangaram could have kept the Ganja concealed in the cupboard. Husband may be involved in the activities even without the knowledge of his wife. Even the fact that some Ganja was found wrapped in the Sari would not necessarily raise an inference that it was to the knowledge of appellant Laxmibai, because it could have been kept so, behind her back and without her knowledge. Thus, apart from the violation of the mandatory provisions discussed above, the prosecution has no case against appellant Laxmibai on merits also. For all the above reasons, appellant Laxmibai shall be entitled to an acquittal. 24. Mr. Anoop Chitkara has further argued that Ex. PW.9/J said to be an examination report of the chemical examiner received from CFSL, Chandigarh, indicates that once such exhibit marked with description ( one of ‘M’ and two of ‘K’) containing exhibit-1 23.24 14 grams dark green coloured round mass stated to be 25 grams charas, about which result of examination was indicated as below:- “Various laboratory tests were carried out with the exbhibit-1 under reference for identification chemical tests and chromatographic analysis indicated the cannabinols including tetrahydrocannabinol analysed as given below: Exhibit-1 is a sample of charas., After the examination, the parcel containing the exhibit/remnants of the exhibit has been sealed with the seal impression as per specimen provided below:” 25. It has been further submitted by Mr. Chitkara that stuff recovered as charas is not charas but was dried leaves of cannabis plant. In view of the decision of this Court in Panne Lal versus State of H.P., 2010 (2) Crimes 558 (H.P.) , the possession of such recovered good cannot be said to be contraband and possession of which is not an offence. In support of his submissions Mr. Chitkara has referred some paragraphs of the above said judgment, for convenience, same are given below:- “9. In all the six cases stuff, which, according to the prosecution, was Charas, had been seized by Police Officers, on search of the person or baggage or buildings or conveyance of the appellants/accused. Samples were separated from the recovered stuff and sent to the Chemical Examiners. In the following four cases, samples were sent to the Director, Central Forensic Science Laboratory, Directorate of Forensic Science, Ministry of Home Affairs, Government of India, Chandigarh: 1. Sunil versus State (Cr.A No.267/2007) 2. Surinder Singh versus State (Cr.A No.311/2007) 3. Panne Lal versus State (Cr.A No.45/2008) 15 4. State versus Jeet Ram (Cr.A No.363/2008) 10. In all the aforesaid cases, reports given by the abovesaid of the Forensic Science Laboratory are similar, rather verbatim the same. They read as follows: RESULTS OF THE EXAMINATION Various laboratory tests were carried out with the exhibit-1 under reference for identification. Chemical tests and chromatographic analysis indicated the cannabinols including tetrahydrocannabinol. Microscopy indicated the presence of characteristic cystolithic hair. The results thus obtained have been analysed as given below: Exhibit-1 is a sample of charas. Shri R.S. Verma, who signed these reports, as Director of the said Forensic Science Laboratory, was examined as a witness, in two cases. In one case, i.e. Panne Lal versus State (Cr.A No.45/2008), he was examined as a witness of the prosecution and in another, i.e. State versus Jeet Ram (Cr.A No.363/2008), he was examined as a witness of the defence. 15. Dr. R.S. Verma, who was examined as PW- 11, by the trial Court, in the case giving rise to appeal titled Panne Lal versus State (Cr.A No.45/2008), admitted that Charas is separated resin from cannabis plant. He stated that he tested the resin to identify it with Charas and that resin containing tetrahydrocannabinol is Charas and that other resins, like that of pine tree, pear, peach, do not contain tetrahydrocannabinol. His statement that he tested the resin to identify Charas, by conducting a test to find whether it contained tetrahydrocannabinol, itself suggests that he proceeded to analyse the stuff, assuming the same to be resin, without conducting any specific test to ascertain whether it was resin or something other than resin. 16. While appearing as DW-1 before the trial Court, in another, i.e. State versus Jeet Ram (Cr.A No.363/ 2008), he (Dr.