IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal No. 200 of 2005. Judgment reserved on: 22.9.2008 Date of Decision: September 26, 2008 ________________________________________________________________ Prem Bahadur … appellant Versus State of H.P.. … Respondent. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge, The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for reporting? For the Appellant : Mr. N.K.Thakur, Advocate. For the Respondent(s) : Mr.R.M.Bisht, Deputy Advocate General. ________________________________________________________________ Deepak Gupta, J This appeal is directed against the judgment dated 18.3.2005 delivered by the learned Sessions Judge, Kullu in Sessions Trial No. 58 of 2004, whereby the appellant/accused has been convicted of having committed an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1 lac. In default of payment of fine, he has - 2 - been directed to undergo rigorous imprisonment for four years. The brief facts relevant for decision of the case are that Inspector/SHO Jagdish Chand (PW6) along with Head Constable Mohar Singh (PW2) and Constable Ajay Kumar (PW5) had gone in a government vehicle to a place known as “16 Miles” for patrolling duty. At about 4.30 pm, two persons came from the side of Pangan. On seeing the police party, these persons suddenly turned back and tried to run away. They were over-powered by the police party. On inquiry, they disclosed their names as Prem Bahadur and Prakash Chand. Prem Bahadur was carrying a rucksack on his back. In view of the behaviour of the two persons, the police officials became suspicious and informed them that they would be searched on the suspicion that they may be carrying some narcotic substance. They were informed of their legal right of getting searched by the Magistrate or a Gazetted Officer or by a competent police officer vide memo Ext.PW5/A and Ex.PW5/B. They opted to be searched by the police. On search of the rucksack carried by Prem Bahadur, Charas weighing 1.150 kilograms was recovered. Out of this, two samples of 25 - 3 - grams each were taken and sealed with four seals bearing impression “W”. The remaining bulk charas along with polythene bag and rucksack were also taken into possession and also sealed with seal impression “W”. NCB Forms in triplicate were also prepared. On personal search of Prakash Chand, nothing was recovered from him. Thereafter both the accused were apprised of the offence and a report was sent to the senior officer. Ruqa Ex.PW6/A was prepared and sent through Constable Ajay Kumar (PW5) to Police Station, Manali whereby FIR Ex.PW4/A was lodged. After completing the formalities of the investigation, the Investigating Officer handed over the case property along with sample seal and NCB forms to Head Constable Khem Chand (PW2), who was MHC Manali for safe custody. Entry was made in the Malkhana Register Ex.2/A. Thereafter, MHC Khem Chand sent one sample along with one sample of seal impression “W” and NCB form in triplicate vide road certificate Ex.PW2/C through Constable Padam Singh to C.T.L.Kandaghat. The Chemical Examiner vide his report Ex.PA found that the sample contained Charas. Thereafter challan was filed and the accused were tried. On the basis of the - 4 - evidence led before the trial Court, the learned Sessions Judge, has convicted and sentenced accused Prem Bahadur and acquitted Prakash Chand accused. This appeal was filed by the accused Prem Bahadur through Jail. We had initially appointed Shri Rajesh Mandhotra, Advocate as legal aid counsel for the accused. However, since Shri Rajesh Mandhotra, had in the meantime been appointed as Deputy Advocate General and could not argue the matter, we appointed Shri Naresh Kumar Thakur, Advocate, as legal aid counsel. We have heard Shri N.K.Thakur learned counsel for the appellant/accused and Shri Ram Murti Bisht, learned Deputy Advocate General for the State-respondent. Shri N.K.Thakur has basically raised two contentions before us. Firstly, that the procedure prescribed under Section 52 of the NDPS Act has not been followed and there is no clear-cut evidence to show that the sample which was analysed had not been tampered with and, therefore, the accused is entitled to be acquitted. In the alternative, it is contended that as per the chemical report of the Charas Ex.PA, the entire substance found was 32.07% of resin and, therefore, the quantity of charas involved was not 1150 grams but only 368.80 gms. and, - 5 - therefore was not a commercial quantity within the meaning of NDPS Act. With regard to the first submission of Shri Thakur, it is pertinent to note that the investigating officer Jagdish Chand (PW6) was also the SHO of Police Station, Manali. According to this witness, since he was both the investigating officer and the SHO, he did not fill-in columns 8 to 11 of the NCB form Ex.PA. According to Shri Thakur, even though the compliance of section 52 of the NDPS Act may not be mandatory but in case of non compliance an adverse inference must be drawn against the prosecution. Section 52 of the NDPS Act reads as follows:- 52. Disposal of persons arrested and article seized. (1) Any officer arresting a person under Section 41, Section 42, Section 43 or Section 44 shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested and article seized under warrant issued under sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. (3) Every person arrested and article seized under sub-section (2) of Section 41, Section 42, Section 43 or Section 44 shall be forwarded without unnecessary delay to- (a) The officer-in-charge of the nearest police station, or (b) The officer empowered under Section 53. (4) The authority or officer to whom any person or article is forwarded under sub section (2) or subsection (3) shall, with - 6 - all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article. Sub-section (3) of the aforesaid section provides that every person arrested and article seized under sub-section (2) of Sections 41, 42, 43 or 44, should be forwarded without unnecessary delay to the officer-in-charge of the nearest police station or any other officer so designated under Section 53 of the Act. The second officer is thereafter required to take such measures for disposal according to law of the person of the article. Section 55 of the NDPS Act reads as follows:- 55. Police to take charge of articles seized and delivered. An officer-in-charge of a police station shall take charge of and keep in sage custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. This section provides that the officer-in-charge of the police station taking charge of the article should also seal the sample in question. Shri Thakur has strenuously - 7 - contended that in the present case, when the sample was handed over to PW2 Khem Chand , he did not put his seal on the article and, therefore, there was every probability that the sample could be tampered with, since the sample had only one seal of the investigating officer. In Gurbax Singh versus State of Haryana, AIR 2001 SC 1002, the apex Court held as follows:- “9…………………… It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, I.O. has admitted that the seal which was affixed on the Muddamal article was handed over to the witness PW-1 and was kept with him for 10 days. He has also admitted that the Muddamal parcels were not sealed by the Officer-in-charge of the police station as required under Section 55 of the NDPS Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser. Further, it is apparent that the I.O. has not followed the procedure prescribed under Section 57 of the NDPS Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of Panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O. particularly when he did not know that the substance was - 8 - poppy husk, but came to know about it only after being informed by the police. Further it is the say of the Panch witness that Muddamal seal used by the PSI was wooden seal. As against this, it is the say of PW-2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy husk.” Sections 52 and 55 of the NDPS Act also came up for consideration before the apex Court in Babubhai Odhavji Patel and others v. State of Gujarat, (2005) 8 SCC 725 wherein the apex Court held as follows:- “8. The learned counsel further contended that the seized articles were not kept in proper custody and that there was violation of Sections 52, 55 and 57 of the NDPS Act. He placed reliance on Valsala v. State of Kerala. We do not think that there is much force in this contention. This Court in Gurbax Singh v. State of Haryana held that these provisions are not mandatory provisions and they are only directory. In the present case we do not find any serious violation of these provisions. The prosecution adduced evidence to prove that these provisions have been substantially complied with and the Sessions Judge discussed these matters in detail and accepted the prosecution case.” From a perusal of the aforesaid two judgments, it is apparent that the provisions of Sections 52 & 55 are not mandatory but only directory. If there is substantial - 9 - compliance with the same, the accused cannot be acquitted. If there are sufficient reasons for non- compliance of the sections then also the accused cannot claim benefit of acquittal under these provisions. At best, the Court may have to scrutinize the prosecution evidence with greater care and caution. In the present case, the recovery of the Charas has been proved beyond reasonable doubt. We cannot lose sight of the fact that the investigating officer PW6 was also the SHO of the Police Station, Manali. He presumed that he was the in-charge of the police station and, therefore, provisions of Section 52 and 55 were not applicable to him. At best it can be presumed that when he was the investigating officer, some other police officer must be deemed to be in-charge of the police station. At best we can presume that MHC Khem Chand (PW2) was the in- charge of the police station. However, even if we presume that MHC Khem Chand (PW2) was the in- charge of the police station, then the mere non- compliance of Sections 52 and 55 by not putting the seal on the sample would not by itself be a ground to acquit the accused. - 10 - PW2 Khem Chand states that PW6 handed over one parcel allegedly containing 1 kg.100 grams of charas sealed with four seals mark “W” and two parcels of samples of charas weighing 25 grams each. All these parcels were sealed with seal mark “W”. These parcels along with NCB form in triplicate and sample of seal were also deposited with him. He made an entry in the Malkhana Register. The entry also shows that these three parcels along with four seals impression of the seal “W” along with NCB form in triplicate and sample of seal “W” were deposited with him. A perusal of the road certificate and the Malkhana Register also shows that one sample of Charas along with NCB form in triplicate and sample of seal was sent to the C.T.L. Kandaghat on 22.1.2004. All the witnesses have stated that the samples remained in the same condition when they were with them. No doubt, PW3 Constable Padam Singh who took the sample to CTL, Kandaghat initially in examination-in- chief stated that he could not name the other articles which he took to the CTL, Kandaghat but in cross- examination, he admitted that he had taken sample of the seal as well as NCB form in triplicate. He also stated that the case property was intact while in his possession. It - 11 - appears that this witness was won over by the accused. This witness was blowing hot and cold and appears to have been won over by the accused. Still he could not deny the documents/papers which were sent along with him to CTL, Kandaghat. Therefore, there was sufficient evidence on record to show that the sample and other documents/papers along with sample of the seal were sent to the CTL, Kandaghat. It is also in evidence that the sample remained intact from the time it left the Malkhana till it reached CTL, Kandaghat. The report Ex.PA also shows that the analyst has compared the seal on the sample parcel with the sample seal sent separately to the CTL,Kandaghat and found them to be the same. Merely because the provisions of Section 52 and 55 of the NDPS Act were not strictly complied with, is not a ground to acquit the accused since there was sufficient evidence on record to show that the sample was not tampered with and remained in the same condition from the time the samples were taken till the analysis was done. Coming to the second contention of Shri Thakur, this Court in Dharampal versus State of H.P., 2007 (2) Shim. LC 19, held as follows:- - 12 - 10. Assuming the charge against the appellants were for possessing mixture form of cannabis, in that situation also the appellants could not have been held guilty of possessing ‘commercial quantity’ of narcotic drug or psychotropic substance. Entry No. 239 of the notification of the Central Government says that in case of any mixture or preparation that of with or without a neutral material, of any of the Narcotic drugs or psychotropic substances, mentioned in the earlier Entries (No. 1 to 238), lesser of the small quantities given against the respective narcotic drug or psychotropic substance, mentioned against Entries No. 1 to 238, forming part of the mixture, shall be taken to the ‘small quantity’ and the lesser of the ‘commercial quantity’ between the quantities given against the respective narcotic drugs or psychotropic substances mentioned at Entries No. 1 to 238 forming part of the mixture shall be taken to be the ‘commercial quantity’. 11. The stuff recovered from the appellants has only one psychotropic substance, i.e. ‘Charas’ (resin) in it. About the rest of the stuff there is no report and, therefore, there is no escape from assumption that the same is a neutral material. Now, if it has only one psychotropic substance, i.e. ‘Charas’ (resin), the nature of the quantity is to be determined by reference to the limits of ‘small quantity’ and ‘commercial quantity’ prescribed for ‘Charas’, which means resin of cannabis plant.” Therefore, it is obvious that it is only the quantity of resin which is Charas according to the Act. Complying with the aforesaid principles, the quantity of Charas, works out to 368.80 grams. The appellant was arrested on 21.1.2004 and since then he is behind bars i.e. for a period - 13 - of more than 4 years and 8 months. Keeping in view the quantity of Charas recovered from the accused/ appellant, we feel that the period of sentence already undergone by him is sufficient to meet the ends of justice. In view of the above discussion, the appeal of the appellant/accused is partly allowed. His conviction under Section 20(b)(ii) of the NDPS Act is set aside and he is ordered to be convicted under Section 20(b)(i) of the NDPS Act and the sentence already undergone by him is deemed to be sufficient to meet the ends of justice. It is, therefore, ordered that in case the detention of the appellant is not required in any other case, he be set at liberty forthwith. (Deepak Gupta), J. September 26, 2008 (V.K.Ahuja ),J. s.