IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 2 of 2010. Judgment reserved on 16.11.2010. Date of Decision: 21st February, 2011. _______________________________________________________ Krishan Singh ….Appellant. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. M.S. Guleria, Advocate. For the respondent : Mr. A.K.Bansal, Addl. Advocate General. _________________________________________________________ SURINDER SINGH, J. Appellant was convicted for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’, by the learned trial Court in Sessions trial No.28 of 2009, on 4th December, 2009, for allegedly keeping in his possession 859 grams of Charas in the total recovered stuff of 2 Kgs and 500 grams, thus, he was sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.50,000/- and in default of Whether reporters of the Local papers are allowed to see the judgment? - 2 - payment of fine, the appellant was also ordered to further undergo imprisonment for one year. The benefit of Section 428 Cr.P.C. was also accorded. Appellant has challenged his conviction and sentence in the present appeal. 2. In short, the prosecution story, as emerges from the evidence on record, can be stated thus. On 17.3.2009 PW9 Inspector Brij Mohan Sharma was heading a police party near ‘Zero Point’ at Jassurgarh (Chamba). At about 11.35 a.m., they spotted the appellant coming on foot from the upper side of the road through a bridle path, who on seeing the police became nervous. On suspicion, the appellant was apprehended by PW1 HC Virender Singh and Constable Prakash Chand. PW9 Inspector Brij Mohan Sharma asked his identity to which he disclosed. The said person was also identified by him during the trial of the case. Thereafter Inspector aforesaid expressed his suspicion that he might be having in possession some contraband and gave him an option that it was his legal right to be searched before the Magistrate, or a Gazetted Officer. This option was also reduced into writing vide consent memo Ex.PW1/A, which was - 3 - prepared on the spot in the presence of PW1 HC Virender Singh and PW2 Constable Ajay Kumar. The appellant while exercising his option consented to be searched by the police party present there. 3. PW9 aforesaid conducted his personal search and discovered some cloth fastened on his back. It was untied. It contained three small bags (thallies) containing Charas. The contents of all the three bags were mixed up together and weighed. It turned out to be 2 Kgs. 500 grams. Thereafter two samples of 25 grams each were separated, packed and sealed separately with the seal impression “M”. Remaining bulk was packed in the same bags and then sealed in one parcel with the same seal. The specimen of seal was also taken on a separate piece of cloth Ex.PW1/D. 4. The case property was taken into possession vide memo Ex.PW1/B and a copy of this memo was supplied to the appellant free of cost. The relevant columns of NCB forms in triplicate were filled in by PW9 Inspector Brij Mohan Sharma on the spot, one of such form is Ex.PW9/A. The facsimile of the seal used was also affixed thereon. - 4 - 5. A Ruqa Ex.PW9/B was sent for the registration of the case to Police Station Tissa, through Constable Tilak Raj, which culminated into FIR Ex.PW8/A. 6. The appellant was arrested and grounds of arrest were informed to him. 7. Site plan Ex.PW9/C of the alleged place of recovery was prepared on the spot and the statements of the witnesses were also recorded. The case property alongwith specimen seal impression, NCB forms and articles of ‘Jama-Talashi’ were deposited with PW6 MHC Madan Lal, which were duly entered by him in the Malkhana register, copy whereof is Ex.PW6/A. 8. Special Report Ex.PW4/B was sent to the Superintendent of Police, Chamba within the statutory period. 9. On 19.3.2009, PW6 MHC Madan Lal sent one of the sample parcels to Forensic Science Laboratory, Junga vide RC No.187/2009 (Ex.PW6/B) alongwith NCB forms and other documents contained in police docket through PW7 Constable Raj Singh, who after depositing the same in the FSL, took up the receipt on the said R.C. and handed it over to MHC Madan Lal on his return. - 5 - 10. On examination of the sample parcel in Forensic Science Laboratory, it tested positive for Charas. Report is Ex.PW9/E. The sample contained 34.36% weight-in- weight quantity of resin. 11. After completing the investigation and receipt of the report from the Laboratory, challan was prepared and presented against the appellant for the offence aforesaid. 12. The appellant was accordingly charge-sheeted. He pleaded not guilty and claimed trial. To prove its case prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure. He did not raise any specific defence, except denial simplicitor. When called upon to enter into his defence, he also did not lead any evidence in defence. After going through the evidence and appreciating the arguments of the learned counsel for the parties, the learned trial Court held the appellant guilty for keeping in his possession 859 grams of Charas in the recovered stuff of 2 kgs 500 grams, thus convicted and sentenced him as aforesaid. 13. Shri M.S. Guleria, learned counsel for the appellant forcefully argued that there was a breach of - 6 - the mandatory provision of Section 50 of the Act. To strengthen his point, learned counsel cited State of H.P. v. Pawan Kumar [ (2005) 4 Supreme Court Cases 350 ]. It is next contended that the alleged contraband which is said to have been recovered from the appellant was not mixed up properly thus it was not a representative sample. The statements of the witnesses are contradictory on this point and not declared hostile by the prosecution, in such a situation, if the prosecution witness supports the defence, the accused can rely upon the evidence of such a witness and it will be binding on the prosecution, as held by the Apex Court in Raja Ram v. State of Rajasthan [(2005) 5 Supreme Court Cases 272]. It is thus ventilated that since the Investigating Officer did not mix up the contents of the three small bags in accordance with the provisions of the Act and the Rules framed thereunder, it caused prejudice to the appellant, hence judgment of conviction and sentence passed by the learned trial Court is not sustainable. 14. Contra, Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence and argued that none of - 7 - the points taken by the leaned counsel for the appellant have emerged from the evidence on record and the judicial precedents cited above are not attracted in this case. Section 50 of the Act was properly applied and if there are minor contradictions in the statements of the witnesses that cannot be said to be fatal to the prosecution. The witnesses unequivocally and constantly supported the prosecution case, as alleged. 15. I have given my thoughtful consideration to the rival contentions of the parties and have carefully scanned the evidence on record. 16. First of all, I shall take up the point with respect to the compliance of Section 50 of the Act. In the present case, PW9 Inspector Brij Mohan Sharma testified that the appellant was given an option, in writing Ex.PW1/A, precisely on the premise that he suspected some contraband in his possession so he was required to be searched and it was his legal right to be searched before the Magistrate or before the Gazetted Officer. In the presence of PW1 HC Virender Singh and PW2 Constable Ajay Kumar, the appellant gave his consent encircled at “A” of the said document that he was - 8 - willing to be searched by the police party on the spot. The above version has been supported by PW1 HC Virender Singh. Though no particular form of giving option is prescribed, it could be in writing or oral, but the accused must be apprised of his legal right. The option given by PW9 aforesaid to the appellant in my opinion is perfect, meeting the legal requirement. The question that arose before the Supreme Court was whether Section 50 of the Act casts a duty on the empowered Officer to “inform” the suspect of his right to be searched in the presence of Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said Officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said, due compliance with the mandate of Section 50? The Constitution Bench of the Supreme Court on the above reference considered its various judgments in Vijaysinh Chandubha Jadeja v. State of Gujarat [ (2011) 1 Supreme Court Cases 609] and in para 29 held as under:- “29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a - 9 - safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.” 17. Further in para 31 of the aforesaid judgment the Apex Court observed as under:- “31. We are of the opinion that the concept of “substantial compliance” with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez - 10 - and Prabha Shankar Dubey is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh’s case. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.” 18. Further the learned counsel for the appellant has drawn my attention to the alleged contradictions appearing in the cross-examination of PW1 HC Virender Singh and PW2 C. Ajay Kumar, wherein PW1 aforesaid stated that when the accused was nabbed he was having a bag in his hand. Firstly, the accused was searched personally, thereafter search memo was prepared and PW2 stated thin his chief examination that PW9 Inspector Brij Mohan Sharma while giving option did not say that it was his legal right although in cross-examination he stated that consent memo was drawn before conducting his personal search. On examining the above statements as a whole, I find their statements are contrary to the recovery memo Ex.PW1/B signed by each of them. If their statements - 11 - are read in the light of the said document coupled with Ruka Ex.PW4/A =Ex.PW9/B, Special Report Ex.PW4/B, these contradictions appears to be minor in nature and loose its significance. 19. Also I find that in the consent memo Ex.PW1/A there is a reference that the appellant has a right to be searched before the Magistrate or the Gazetted Police Officer and the recovery memo Ex.PW1/B was prepared in the presence of witnesses aforesaid. Similarly, Ruqa Ex.PW4/A= Ex.PW9/B, special report Ex.PW4/B, has a reference with respect to giving an option to exercise of his legal right before his search, to which he exercised as stated by PW9 coupled with the documents prepared on the spot to this effect, which also bears their signatures. Therefore, in my opinion, in the above facts and circumstances these contradictions are also not very much material to reject the prosecution case. 20. Thus applying the above principle of law in the above fact situation, the provision of Section 50 of the Act which are mandatory stand fully complied with. The judgments cited by the learned counsel are of no help to him. - 12 - 21. In fact, the learned Prosecutor could have re- examined the said witness to get this ambiguity explained, but he failed in his duty to do so and appears to have shown his passive attitude and was unmindful of the fact that he was representing the State in a drug traffic case which is quite rampant in the border area, to which this case pertains. He was required to be quite vigilant to assist the Court to arrive at truth. 22. The next point urged by the learned counsel for the appellant is whether the sample taken was a representative sample. In order to substantiate this point, the learned Counsel led me through the statements of the witnesses on record. On examination of the statements of prosecution witnesses, I find that PW9 Inspector Brij Mohan Sharma categorically stated that the recovered stuff from all the three bags was mixed up and weighed before taking samples, his statement to this effect was not assailed in his cross- examination. Further, all the documents referred to above which were prepared on the spot by the Investigating Officer (PW9) were duly testified by him being the Investigating Officer corroborated his version. - 13 - He also stated that from the recovered stuff, two samples of 25 grams each were drawn, packed and sealed with seal impression “M” at three places and this procedure stated by him, as already stated during the trial has not been disputed in his cross-examination. Thus, the contents of the three bags were made homogenous by mixing up together and the samples were drawn randomly, therefore, no prejudice has been caused to the appellant, more specifically when it has not been assailed in his cross-examination. Hence, the statements of PWs 1 and 2 aforesaid that only the contents of samples drawn from each bag were mixed and divided as samples of 25 grams each are ignorable, as the same are also opposite to the documents of recovery and statement of the Investigating Officer which finds corroboration from the record. 23. On the scrutiny and reappraisal of the evidence on record, I find that the recovery of the contraband stands fully proved from the accused/ appellant. No malice was imputed to the police party to implicate him in a false case. 24. The evidence on record clearly establishes that the samples were properly drawn from the recovered - 14 - stuff and the case property was deposited in the Malkhana with the concerned MHC alongwith sample of seal, NCB forms in triplicate and the copy of FIR which find mentioned in the abstract of Malkhana Register Ex.PW6/A.One of the sample was sent for the analysis through Constable Raj Singh (PW7) vide Road Certificate No.187/2009 Ex.PW6/B alongwith the sample of seal and NCB forms etc. as mentioned therein. The sample parcel was deposited in the Laboratory and the receipt was obtained on the road certificate aforesaid. On analysis, the sample parcel contained resin 34.36% weight-in-weight of cannabis plant as per the report Ex.PW9/E of Forensic Science Laboratory. Thus, the appellant was found to have been in possession of Charas, to which he failed to satisfactorily explain, hence by virtue of Section 35 and 54 of the Act, legal presumption has to be drawn to which he failed to rebut. Therefore, in my opinion, the learned trial Court while relying upon the judgment delivered by the Division Bench of this Court in Dharam Pal v. State of H.P. [2008 (1) Crimes 337 (HP) rightly convicted and sentenced the appellant under the Act having found in possession of 859 grams of Charas out of the recovered - 15 - stuff of 2 Kgs. 500 grams, which was less than ‘commercial quantity’, but greater than the ‘small quantity’, as such, the impugned judgment of conviction and sentence requires no interference. 25. For the reasons aforesaid, I do not find any merit in this appeal, as such the same is dismissed. February 21, 2011. (Surinder Singh), (Pds) Judge.