--------------------------------------------------------------------------------------- Whether reporters of the Local papers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. A. No. 334 of 2011. Decided on: December 22, 2011. Hari Singh son of Sh. Tej Ram resident of village Shalingcha Tehsil and District Kullu, Himachal Pradesh. …… Appellant. Versus State of Himachal Pradesh. …….Respondent. Appeal under Section 374 (2) Cr.P.C. against the judgment of conviction and sentence dated 19.8.2011/23.8.2011 passed by the learned Special Judge Kullu, District Kullu, H.P. in Sessions Trial No. 12 of 2010. ________________________________________________________ Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? yes For the appellant : Mr. Ajay Chandel, Advocate. For the respondents : Mr. A.K. Bansal, Addl. Advocate General. Surinder Singh, J (oral): The appellant hereinafter referred as ‘the accused’ has laid challenge in this appeal against his conviction passed by the learned trial Court in Sessions trial No. 12 of 2010, decided on 19.8.2011, for - 2 - the offences punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’ whereby he has been sentenced to undergo rigorous imprisonment for a period of six years and to pay a fine of Rs.60,000/- and in default of payment of fine to further undergo imprisonment for a period of six months. The period of detention of the accused during trial and investigation was ordered to be set-off under Section 428 of the Code of Criminal Procedure. 2. In short, prosecution story can be stated thus. On 26.12.2009, police party headed by PW7 SI Tilak Raj consisting of ASI Naresh Chand, PW6 HHC Ajay Kumar and Constable Raj Kumar proceeded towards village Dobhi in the area falling under the jurisdiction of police Station Manali District Kullu, H.P. When police party reached one kilometer ahead of Dobhi, around 11 a.m., they noticed accused coming from the side of ‘Mehal Bhujnu’ with a rucksack on his back. On seeing the police, he got perplexed and tried to escape which raised suspicion. Accordingly he was apprehended. His identify was asked. No independent witness was - 3 - available as the place was secluded one. Thus PW7 SI Tilak Raj associated ASI Naresh Chand and PW6 Ajay Kumar as witnesses and informed the accused of his legal right to be searched either before a gazetted officer or the Magistrate orally as well as in writing to satisfy the provision of Section 50 of the Act. (ii) The accused opted to be searched by the police present there. To this effect consent memo Ext. PW6/A was prepared. After rendering himself to be searched by the accused personal search of the accused was conducted by SI Tilak Raj aforesaid but nothing incriminating article was found but when he searched the rucksack carried by the accused, it contained 2 kg charas in the shape of small pressed sticks. Thereafter the entire recovered stuff was put in the same poleythene packet and the said packet was kept in the rucksack. Thereafter rucksack was put in the cloth parcel which was sealed with seal impression ‘TR’. Facsimile of the said seal was taken on a piece of cloth Ext. PW6/C and also on the NCB forms in triplicate one of which is Ext. - 4 - PW3/C. The relevant column whereof were filled in on the spot by the Investigating Officer. (iii) The case property was taken into possession vide memo Ext. PW6/D. Its copy was handed over to accused free of cost. (iv) Ruka Ext. PW7/A was sent to the police Station through PW6 HHC Ajay Kumar for registration of the case which culminated into FIR Ext. PW8/A. The case file was handed over to PW6 HHC Ajay Kumar to which he handed over to Investigating Officer at Patlikuhal. Sub Inspector Tilak Raj (PW7) also prepared site plan Ext. PW7/B. He also recorded the statements of the witnesses. Accused was arrested and grounds of arrest were informed to him vide memo Ext. PW7/C. I.O. produced the case property to PW8 SI Om Chand. He re-sealed the said parcel with seal impression ‘H’ on three places facsimile thereof was also taken on a piece of cloth as well as on the NCB forms. Thereafter he deposited the case property with PW3 MHC Sher Singh which was entered by him in the Malkhana Register, the extract whereof is Ext. PW3/A. - 5 - (v) On 28.12.2009 the entire case property was sent for its chemical examination to forensic science Laboratory Junga through PW4 HHC Gautam Chand vide RC No. 225/2009 (Ext. PW3/B) which was deposited by him and on its return, he obtained receipt Ext.PW3/A on the RC and re- deposited it with the MHC aforesaid. (vi) The report of the analysis Ext. PA tested positive for charas containing resin content of 34.27% weight in weight of cannabis plant. As such after completing the investigation, challan was presented in the Court for the trial of the accused. He was accordingly charge sheeted for the offences aforesaid to which he pleaded not guilty and claimed trial. 3. To prove its case, prosecution examined its witnesses and respondent was also examined under Section 313 of the Code of Criminal Procedure. When called upon to enter into his defence no evidence in defence was led. 4. The stand taken by the accused in the cross examination of the witnesses is that he was travelling in a bus and there was abandoned bag in - 6 - the bus. Police during the checking caught-hold of it and foisted a false case upon him. However, in his statement under Section 313 of the Code of Criminal Procedure, no such defence was led by him but according to him, he was innocent and this case was planted against him. 5. The learned trial Court did not believe the defence version and relied upon the prosecution witnesses, convicted and sentenced the accused as aforesaid hence the present appeal. 6. Shri Ajay Chandel, learned counsel for the accused vehemently argued that village Dobhi was nearby, police neither associated independent witnesses nor any attempt was made. Even the statement of PW6 HHC Ajay Kumar is contrary to the statement of the Investigating Officer on this count. He further ventilated that there are material contradictions in the statements of the witnesses with respect to arrival of the accused on the spot and time which goes to the root of the case. It is also argued that the report of the analysis Ext. PA does not prove that the stuff recovered was charas. To support his version, he relied upon the judgment of - 7 - the Division Bench of this Court in Sunil versus state of H.P. and other connected matters Latest HLJ 2010 (HP) 207 and concluded that the presumption under Sections 35 and 45 of the Act, against the accused cannot be drawn. 7. Contra Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence and argued that at the place of incident, in and around there was no inhabited area and further the evidence on record suggest that even no passer-by had crossed the place during the search operation. Further according to him, the contradictions, as pointed out by the learned counsel for the accused are bound to be there in a case when the witnesses are examined approximately after such a long time. It is also submitted that the judgment, as referred above, by the learned counsel for the accused is not at all attracted in the facts and circumstances of this case and report of analysis fully establishes that the recovered stuff contained charas. Thus, he was rightly convicted and sentenced for the offences aforesaid. - 8 - 8. I have given my thoughtful consideration to the rival contentions of the parties and have carefully, cautiously and meticulously re-appraised the evidence on record. 9. To prove the recovery of contraband, statements of PW7 S.I. Tilak Raj and PW6 HHC Ajay Kumar are quite relevant. Tilak Raj categorically stated that on the date aforesaid, they were going on foot and at about 11 a.m. they were present 1 km ahead of village Dobhi on a path leading towards village Mehal Bhujnu. They noticed the accused coming from opposite side having a rucksack on his back. He got perplexed and his activities raised suspicion that he might be carrying some incriminating substance with him. He was stopped. His identity was asked. The place was a secluded one, no independent witness was available, thus, he associated ASI Naresh and PW6 Ajay Kumar as witnesses. The accused was given option to exercise his legal right to be searched by the police present at the spot or by a gazetted officer but he opted to be searched by the police present there. To this effect consent memo Ext. PW6/A was prepared. - 9 - After rendering himself to be searched by the accused personal search of the accused was conducted by SI Tilak Raj aforesaid but no incriminating article was found but when he searched the rucksack carried by the accused, it contained 2 kg charas in the shape of small and pressed sticks. Thereafter the entire recovered stuff was put in the same poleythene packet and the said packet was kept in the rucksack which was further put in a cloth parcel and sealed with seal impression ‘TR’ facsimiles of the said seal were taken on a piece of cloth Ext. PW6/C and also on the NCB forms in triplicate one of which is Ext. PW3/C. 10. The case property was taken into possession vide seizure memo Ext. PW6/D. Ruka was sent for registration of the case through PW6 HHC Ajay Kumar. This fact has been substantiated by HHC Ajay Kumar verbatim. He also stated that rucksack in question was having print “diesel” when this case property was exhibited in the Court after having received from the Laboratory in the statement of PW3 HC Sher Singh, the Court observed that it was having six seals ‘TR’ and re-sealed with three seals of - 10 - ‘H’ and also 7 seals of the FSL. On opening this parcel, PW3 aforesaid identified it to be the same bulk Ext. P1 which was deposited with him by SI SHO Om Chand and was sent to FSL Junga through HHC Gautam Chand against RC Ext. PW3/B. 11. PW6 Ajay Kumar and PW7 S.I. Tilak Raj both shown the case property during the trial. They also identified it to be the same as was recovered from the accused. 12. In the instant case, the link evidence is also complete. After re-sealing the case property by PW8 SI Om Chand with seal impression ‘H’, he testified that it was deposited with MHC Sher Singh on the same day which fact has been admitted by Sher Singh in his statement. The MHC entrusted the entire case property on 28.12.2009 to PW4 HHC Gautam Chand vide RC aforesaid along with sample of seals RC forms, copy of FIR and seizure memo to which he deposited in the Laboratory. Both the witnesses stated that so long as the case property remained in their possession, it remained intact even till its deposit in the Laboratory. - 11 - 13. The examination report Ext. PA also establishes the fact that the case property which was received in the Laboratory with the aforesaid seals along with NCB forms and sample of specimen seals tallied with and on examination, it tested positive for charas. 14. Also I do not find any material contradictions in the statements of the aforesaid witnesses with respect to time and the manner in which the accused was apprehended and the recovery of contraband was effected. Since the place was a secluded one, it was a public road, there is no need to make a search in the presence of independent witnesses nor it is a requirement of law. The statements of official witnesses of the recovery are consistent and confidence inspiring thus rightly acted upon by the learned trial Court. 15. The learned counsel for the accused also cannot take any assistance from Sunil Kumar’s judgment (supra) for the reason that the reports of analysis dealt in that case were quite different from the present one as it did not conform to the definition of charas given under the Act, which - 12 - discrepancy is not lurking in the analysis report of this case. 16. In fact, “Charas” is one of the three forms of cannabis (hemp), as defined in Section 2(iii) of the Act, which reads as follows: “(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish.” 17. According to the definition of “Charas”, as given in Section 2(iii)(a) of the Act, the stuff to fall in the category of Charas, should be resin of cannabis plant only or the concentrated preparation and resin known as hashish oil or liquid hashish. In other words, the definition does not include other parts, like flowering and fruiting tops, leaves or stem, of cannabis plant. 18. Flowering and fruiting tops of cannabis plant have been defined to mean ganja, per Section 2(iii)(b) of the Act and when seeds and leaves of the plant accompany such flowering or fruiting tops, they also form part of ganja. - 13 - 19. When Charas, i.e. resin and/or ganja, i.e., flowering or fruiting tops of the cannabis plant, are mixed, with or without any neutral material, they fall in the category of Mixture of cannabis (hemp), as defined in Section 2(iii)(c) of the Act. 20. Thus being in possession of cannabis (hemp) is an offence, punishable under Section 20 of the Act. Punishment varies according to the quantity possessed, as notified in the Schedule. 21. In the instant case, the report of the chemical examination states about performing various scientific tests on the recovered stuff which indicated the presence of cannabinoles, including the presence of tetrahydrocannabinol. Also the presence of cystolithic hairs. The quantity of resin in the recovered stuff was found 34.27% eight in weight which was opined to be an extract of cannabis thus, the entire stuff analysed was not charas within the definition of the Act. It was only having 34.27% weight in weight resin content of the cannabis plant. 22. Therefore, the learned trial Court rightly convicted and sentenced the accused for - 14 - possessing 685 grams of charas in the recovered stuff and I do not find any illegality therein. 23. The appeal filed by the accused sans merits and is accordingly dismissed. 24. Send down the records. (Surinder Singh ) Judge December 22, 2011. (cm)