IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 96 of 2010. Reserved on: 12.05.2011. Decided on: 21.7.2011 _________________________________________________________ Dharam Chand. …Appellant. -Versus- State of Himachal Pradesh. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1.No. __________________________________________________________ For the appellant : Mr. N.K. Thakur, Advocate. For the respondent : Ms. Ruma Kaushik, Additional Advocate General. --------------------------------------------------------------------------------- Surjit Singh, Judge(Oral) : This appeal is directed against the judgment dated 07.05.2010/10.05.2010, passed by the learned Special Judge (I), Kangra at Dharamshala, H.P. in Sessions Case No. 30-D/VII-2007, whereby the appellant, who was charged with and tried for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act was convicted and sentenced to undergo three years rigorous imprisonment and fine of `30,000/- was also imposed. In default of payment of fine, the accused was further directed to undergo rigorous imprisonment for a period of six 1 Whether the reporters of the local papers may be allowed to see the judgment?.No. - 2 - months. According to the case of the prosecution, a police “Nakka” was laid at Fhuhara Chowk by Head Constable Vinod Singh, Head Constable Madan Mohan, Constables Anil Kumar and Madan Lal. On 25.04.2007, at about 1:00 a.m.(mid-night), one person coming from the side of Khara-Danda road, Kotwali Bazar was noticed. He tried to run away towards Mcleodganj. Head Constable Madan Mohan and Head Constable Vinod Singh apprehended him near Surbi Guest House. He was carrying one polythene bag. On enquiries being made by HC Vinod Singh, he disclosed his name as Dharam Chand, i.e., accused. The polythene bag was searched and charas was found in the form of sticks which was wrapped in bundles. Thereafter, HC Vinod Singh deputed Constable Madan Lal to go to Police Station, Dharamshala for bringing weights and scale. Constable Madan Lal brought the same. The charas was weighed and the same was found to be 800 grams, out of which, two samples of 25 grams each were separated and sealed with seal ‘A’. The remaining charas was kept in other parcel and the same was also sealed with seal impression ‘A’. The main charas parcel and sample charas were taken into possession vide seizure memo Ex. PW-1/C. Thereafter, rukka, Ex. PW-6/B was prepared and handed over to Constable Anil Kumar. He has taken the same to the Police Station, Dharamshala. He handed over the rukka to SHO Om Parkash, on the basis of which, F.I.R. Ex. PW-6/C was - 3 - registered. Accused was arrested and before his arrest, personal search memo Ex. PW-1/D was prepared. N.C.B. form was also filled up. All the articles were deposited in the Malkhana. The samples were sent to F.S.L., Junga through Constable Joginder Singh (PW-4). The special report was also handed over to Constable Sham Lal by Head Constable Vinod Singh for delivering the same to Superintendent of Police, Kangra at Dharamshala. He deposited the same with the Reader of Superintendent of Police, namely, Subhash Chand. The samples were also re- sealed by Inspector Om Parkash with seal impression ‘D’. He has filled columns No. 9 to 11 of NCB form. The report of the Chemical Examiner is Ex. PW-7/A. Thereafter, the challan was put up after completing all the codal formalities. 2. The prosecution has examined 10 witnesses to prove its case. The accused was also examined under Section 313 of the Code of Criminal Procedure. He has pleaded not guilty. Accused has also examined one Punjab Singh as DW-1. 3. The trial Court convicted the accused vide judgment dated 07/5/2010/10.05.2010, under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, as noticed above. Hence, this appeal. 4. Mr. N.K. Thakur, learned counsel for the appellant has strenuously argued that the prosecution has - 4 - miserably failed to prove the case against the accused. According to him, the prosecution has not examined independent witnesses. He then argued that there was no necessity for calling for the weights and scale from the Police Station. He lastly contended that there is variance in the statements of the witnesses. 5. Ms. Ruma Kaushik, learned Additional Advocate General has supported the judgment 07.05.2010/10.05.2010, passed by the learned Special Judge(1), Kangra at Dharamshala, H.P. 6. I have heard the learned counsel for the parties and gone through the pleadings carefully. 7. The date of incident is 25.04.2007. The accused was apprehended near Fohara Chowk, Kotwali Bazaar, Dharamshala. He tried to run away, however, he was apprehended by the police party, which had laid Nakka. He was carrying polythene bag. The same was searched and it was found that it contained charas. The charas was weighed and three samples were drawn separately, as noticed above. The codal formalities, as per law, were completed and after obtaining report of the Chemical Examiner, Ex. PW-7/A, the challan was put up. 8. PW-1 HC Madan Mohan has deposed that he was member of the Nakka party alongwith HC Vinod Singh, Constable Anil Kumar and Constable Madan Lal. At about 1:00 a.m.(mid-night), one person was noticed coming from - 5 - Khara Danda Road and on seeing the police party towards Fohara Chowk, he tried to run away. He was apprehended and on search, it was found that he was carrying polythene bag which contained charas in the form of sticks. Thereafter, Constable Madan Lal was sent to Police Station, Dharamshala for bringing weights and scale. Constable Madan Lal brought the same. He further stated that two samples of 25 grams each were taken out and the samples as well as remaining Charas was sealed in three parcels with seal ‘A’ and the sample seal was obtained on a piece of cloth vide Ex. PW-1/B. He also deposed that sample seal was also taken on NCB forms. The main charas parcel and sample charas was taken into possession vide seizure memo Ex. PW-1/C. The accused was arrested and the personal search was carried out vide memo Ex. PW-1/D. He has denied the suggestion in cross-examination that the accused was falsely implicated. 9. PW-2 Constable Madan Lal has supported the version of PW-1. According to him also, the accused was carrying a polythene bag, which was searched out and charas in the form of sticks was found. The recovered charas was weighed and found to be 800 grams. Thereafter, two samples of 25 grams each were separated and the samples as well as remaining charas was sealed in three parcels with seal ‘A’ and the sample seal was obtained on a piece of cloth which is Ex. PW-1/B. The case property was - 6 - taken into possession vide Ex. PW-1/C. He has denied the suggestion that the accused was falsely implicated. 10. PW-3 Head Constable Pawan Kumar was performing the duties of MHC in the absence of Shri Anil Kumar. According to him, Om Parkash, Sub Inspector was holding the charge of Station House Officer, Police Station Dharamshala on that day. He has handed over three sealed parcels sealed with seals ‘A’ and ‘D’ to him alongwith seal impression Ex. PW-1/B and NCB forms. He entered all those articles in the Malkhana register and kept the same in the Malkhana. He handed over one sample parcel, NCB form and sample seal to Constable Joginder Singh (PW-4) for depositing the same at FSL, Junga for chemical examination. Till the case property remained in his custody, neither he nor anybody else tampered with the same. 11. PW-4 Constable Joginder Singh has taken the samples to F.S.L., Junga for chemical examination after the same were handed over to him by PW-3 HC Pawan Kumar vide RC No. 64/21. He deposited the same at Junga on 01.05.2007 against receipt. 12. PW-5 HHC Sham Lal was handed over the special report for delivering the same to Superintendent of Police, Kangra at Dharamshala. He deposited the same with the Reader of Superintendent of Police. - 7 - 13. PW-6 Inspector Om Parkash has testified that he remained posted as Additional SHO Police Station, Dharamshala. He was officiating as SHO, Police Station, Dharamshala on 25.04.2007. Head Constable Vinod Kumar, Investigating Officer handed over to him at 4:35 a.m. three sealed packets duly sealed with seal ‘A’, specimen seal impression and NCB forms in triplicate for re-sealing. He re-sealed the parcels Ex. P-1, P-2, P-3 and P- 4 with seal ‘D’. He has also put seal impression of seal ‘D’ on NCB from and filled in columns 9 to 11. He registered the F.I.R. Ex. PW-6/C after receipt of rukka Ex. PW-6/B. The final report under Section 173, Cr. P.C. was prepared by Inspector R.P. Jaswal after the receipt of Chemical Examiner’ s report Ex. PW-7/A. 14. PW-8 Subhash Chand has brought the special report, copy of which is Ex. PW-8/A. PW-9 Constable Anil Kumar was also the member of Nakka party. He has also reiterated that accused was apprehended at 1:00 a.m.(mid- night) at Fawara Chowk Kotwali Bazaar, Dharamshala. He was carrying a polythene bag. When the bag was searched, it was found that it contained chars in the form of sticks. Head Constable Vinod Kumar deputed Constable Madan Lal for bringing weights and scale. The charas so recovered, was weighed and it was found 800 grams. Thereafter, two samples of 25 grams each were separated. The case property was taken into possession vide memo Ex. PW-1/C. - 8 - 15. ASI Vinod Singh (PW-10) has also disclosed that the accused was apprehended when he tried to run away. The accused was carrying a polythene bag in his hand. He identified the accused in the Court. The polythene bag, which was carried by him, was searched and bag substance was found in the shape of sticks. It was smelling like charas. He deputed Constable Madan Lal to bring weights and scale. The seized charas weighed 800 grams. He further stated that two samples of 25 grams each were drawn and sealed. He handed over the sealed property to SHO, Police Station Dharamshala vide Ex. PW-10/C for resealing etc. The NCB form is Ex. PW-7/A. The accused was arrested vide memo Ex. PW-10/B. He also prepared the rukka, on the basis of which, F.I.R. Ex. PW-6/C was registered. He also prepared the site plan Ex. PW-10/A. According to PW-7/A, the resin was found to be 25.42% in Ex. P/1. The test performed indicated cannabinols including the presence of tetrahydrocannabinol in the sample. Thus, the total quantity as per resin was about 200 grams. This quantity is less than the chemical quantity, but more than small quantity. 16. In the present case, the accused was apprehended at 1:00 p.m. (mid-night). There was no possibility of associating the independent witnesses at night. It is true that as far as possible, the independent witnesses should be associated during the course of search - 9 - and seizure etc., however, in this case, there is no reason to disbelieve the version of official witnesses. Their statements are natural, truthful and inspire confidence. There are no contradictions in the statements of members of the Nakka party, who have apprehended the accused. All the members of the Nakka party have deposed in the same manner in which the accused was apprehended, he was searched and the chars was weighed and two samples each weighing 25 grams were prepared. The NCB form, as prescribed was filled up in accordance with the procedure prescribed. The sample was initially sealed with seal impression ‘A’ and the same was re-sealed by the Inspector Om Parkash with seal ‘D’. The samples were deposited with PW-3 Pawan Kumar. He has categorically deposed that the entries were made in the Malkhana register and the articles were kept in the Malkhana. Neither he nor anybody else tampered with the articles. He has sent the samples through PW-4 Joginder Singh. PW-4 Joginder Singh while appearing as witness has deposed that he has deposited the samples at FSL, Junga and has obtained the receipt. The samples were found intact and these were found sealed with seal ‘A’ and ‘D’ as per Ex. PW-7/A. Other codal formalities of informing the Superintendent of Police and preparation of special report were also completed as per the statements of PW-5 and PW-8. In view of the overwhelming evidence, as discussed above, the version of DW-1, namely, Punjab Singh does not - 10 - inspire any confidence and has been rightly discarded. The quantity was less than the commercial quantity, but more than small quantity. The trial Court has correctly appreciated the evidence led by the prosecution. 17. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this appeal and the same is dismissed. (Rajiv Sharma) Judge July 21 , 2011. (bhupender) - 11 -