IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 631 of 2008 Date of decision: 26. 5. 2009 Lal Chand …..Petitioner Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. Ashwani Pathak, Advocate. For respondents : Mr. J.S. Guleria, Assistant Advocate General. Surinder Singh, J. (Oral) The appellant has assailed the judgment of conviction and sentence passed by the learned trial court in Sessions Trial No. 47/2007, decided on 30.5.2008, whereby the appellant was ordered to undergo the sentence of two years and 6 months and also to pay a fine of Rs. 25,000/- for the commission of the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short “the Act” for allegedly keeping in his possession intermediate quantity of ‘charas’. In brief, the prosecution case as emerges from the evidence on record can be stated thus. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. - 2 - On 16.12.2006 at about 7 a.m., the Police Party headed by A.S.I. Lekh Ram was on patrolling duty at ‘Zero point’ near Dhaugi road. They noticed the appellant walking on- foot briskly, he on seeing the police had tried to escape. The police party became suspicious. By chance, PW-1 Kishori Lal and Surat Ram, who were the passers-by also came there and were associated as independent witnesses. The appellant was apprehended. His identity was asked. He was also questioned about the contents of the red colour bag, to which he was carrying. The appellant got perplexed and could not give satisfactory answer. PW-3 A.S.I. Lekh Ram expressed his intention to search the said bag carried and before doing so, he rendered himself to the personal search of the appellant in the presence of the witnesses aforesaid and no objectionable articles were found in his possession. The memo Ext. P-A to this effect was prepared. Thereafter A.S.I. Lekh Ram conducted the search of the bag of the appellant. It was found containing a polythene envelop wherein 740 gms. of ‘charas’ in the shape of balls and ‘chapatis’ (flats) was recovered. Two samples of 25 gms. each were separated from the recovered stuff and sealed separately with seal impression ‘T’. - 3 - The remaining ‘charas’ was put back into the polythene envelop and sealed in a separate parcel with the same seal. The N.C.B. forms in triplicate were filled in at the spot. The facsimile of the seal was also affixed on each of the forms aforesaid. The seal after its use was handed over to PW-1 Kishori Lal. The case property was taken into possession vide seizure memo Ext. P-D in the presence of the independent witnesses. Its copy was handed over to the appellant. The appellant was arrested. The grounds of his arrest were informed to him vide Memo Ext. P-E. Ruka Ext. P-5 was sent for registration of the case, on the basis of which FIR Ext. P-R was registered. The police prepared the site plan Ext. P-9 of the place of recovery and recorded the statements of the witnesses under Section 161 Cr.P.C. Thereafter the appellant as well as case property both were produced before the A.S.I./S.H.O. PW-8 Mathru Ram. He re-sealed the case property with seal impression ‘H’. The sample was also taken on a separate piece of cloth Ext. P-T The case property was deposited with PW-6 Head Constable Hari Ram in the Malkhana - 4 - who was then officiating M.H.C. in Police Station Banjar. The entry was made in the relevant register, abstract whereof is Ext. P-F. On 18.12.2006 one sample along with N.C.B. form, copies of FIR and seizure memo were handed over to Constable Om Parkash (PW-4) vide RC No. 110/2006 for its deposit in C.F.S.L. Chandigarh. After depositing it, he obtained the receipt on the R.C. On his return, it was handed over to H.C. Hari Singh. Special report was sent to the officer immediately superior within the statutory time. The report of C.F.S.L. Ext. P-B was received which revealed that the sample examined by them was of ‘charas’. After completing the investigation, challan was presented in the court for the trial of the appellant. Finding a prima facie case against the appellant, he was charge sheeted for the aforesaid offence. He pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses. During the course of examination of the witnesses, an application was moved by the appellant for examining the second part of the sample in order to ascertain percentage of ‘resin’. The - 5 - application was allowed by the learned trial court vide its detailed order dated 8.5.2008. Thereafter the second sample was sent for its examination to forensic examination to Junga. As per report Ext. P-X the sample contained ‘charas’ and the quantity of ‘resin’ was 38.12% WW. After closure of the prosecution evidence, the appellant was examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor. No evidence in defence was led. At the end of the trial learned trial court held the accused-appellant guilty. Thus, he was convicted and sentenced as aforesaid, which has been challenged in this appeal. Shri Ashwani Pathak, learned counsel for the appellant argued with vehemence that the recovery of alleged ‘charas’ from the possession of the appellant, in this case has not been proved in accordance with law and further that the independent witness Kishori Lal did not support the case of the prosecution and another witness Surat Ram was not examined. It is also argued that the prosecution has failed to prove that the entire stuff recovered from the possession of - 6 - the appellant was ‘charas’ and the samples taken were not of representative character. Contra Shri J.S. Guleria, learned Assistant Advocate General while supporting the judgment of conviction and sentence forcefully argued that although in the instance case, inclusion of the independent witnesses was not imperative since they happened to be on the spot, they were included by the police. Both the said witnesses were local residents however; out of them, one was examined. Who did not support the case of the prosecution, admitted his signatures on the documents prepared by the police on the spot and further the official witnesses have supported the case of the prosecution with full force. There is absolutely no contradiction in their testimonies, which renders the case of the prosecution a suspect, more specifically when no malice is alleged against them. I have given my thoughtful consideration to the rival contentions raised by the parties and have carefully gone through the evidence on record. It is a fact that PW-1 Kishori Lal did not support the case of the prosecution but it is pertinent to note that he has admitted his signatures on the documents - 7 - prepared on the sport by the police. He has also contradicted himself in the same breath. He stated that he was called by the police in the police station while going to the hospital but in the cross-examination conducted by the learned Public Prosecutor, he admitted that on 16.12.2006 at about 7 a.m. he along with Surat Ram was going to village Shaugi and it was that place where these witnesses were associated by the police at the time of the search of the appellant. He being a local resident, purposely appears to have not supported the prosecution case to favour the appellant. PW-3 Lekh Ram has testified that on seeing the police party, appellant turned back and had tried to flee away. Thus, he suspected that the appellant might be having some contraband in his possession. Accordingly he was apprehended in the presence of the aforesaid independent witnesses and asked about his identity. The memo of his personal search conducted by the appellant was also prepared which is signed by him (PW-1) and also witnesses Surat Ram. On checking the bag, which was in the possession of the appellant, 740 gms ’charas’ was found kept in the shape of ‘chapatis’ and tablets. He separated two samples of 25 gms. each from the - 8 - recovered bulk which was sealed as aforesaid and taken into possession. This fact has been corroborated by another official witness PW-2 HHC Gautam Ram. Both of them were subjected to a lengthy cross-examination but nothing material could be extracted from them in favour of the appellant. Thereafter the appellant and case property both were produced before the S.I S.H.O. who re-sealed the case property and deposited with MHC. It is proved on record that MHC has further sent one sample for its examination to CFSL Chandigarh, which was opined to be that of ‘charas’ and even the second sample which was sent to F.S.L. Junga on the request of the appellant also confirmed that the contents of the sample were that of ‘charas’ but it was having 38.12 of ‘resin’. Therefore, in these circumstances it stands proved that the samples were of ‘charas’ and the appellant was having ‘charas’ in his possession. But the question is whether the prosecution has been able to prove that the remaining bulk which was in the shape of ‘balls and chapatis’ also contained ‘charas’. PW-3 ASI Lekh Ram has not whispered even a single word as to how he took the sample from two types of the different recovered stuff and how had he made it homogeneous and took a - 9 - representative sample? Further, he also did not say anything from which of the two types of the stuff, he had taken the samples. Now the question for consideration is whether the sample taken at random was of a representative character. 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 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’ - 10 - 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 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 - 11 - 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. As stated above, in the instant case, the prosecution could only prove beyond doubt that the appellant was found 50 grams of ‘Charas’ i.e. 25 gms. Of ‘charas’ sent to F.S.L. Junga. But other remaining stuff was not sent for analysis more specifically when it was in the shape of bulk of ‘charas’ (flats). Therefore, it is not known what it contained. 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. i.e. Rigorous Imprisonment for a period of six - 12 - months and to pay a fine of Rs.10,000/- in default to pay the fine, to further undergo simple imprisonment for a period of 2 months. Ordered accordingly. The appeal stands partly allowed. The accused appellant is in jail/detention since his arrest i.e. from 16.12.2006 to 17.1.20007 and thereafter w.e.f. 30.12.2008 till date. The fine amount is stated to have been deposited. The appellant is ordered to be given the benefit of Section 428 of the Code of Criminal Procedure. Despite this, still his sentence is not complete. Now he shall be released after completing his sentence as aforesaid. Learned trial court is hereby directed to send the amended Jail warrant in conformity with this judgment to the Superintendent Jail concerned forthwith. The matter stands disposed of. Send down the records immediately. May 26, 2009 (Surinder Singh),J. (cm)