IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 242 of 2006. Decided on: 3.11.2009 _______________________________________________________ Deepak Thapa ….Appellant. Versus State of Himachal Pradesh ……..Respondent. Coram Hon’ble Mr. Justice Surjit Singh,J Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. B.K. Malhotra, Advocate. For the respondent : Mr. P.M. Negi, Deputy Advocate General, __________________________________________________________ SURINDER SINGH, J (Oral) The appellant was allegedly found in possession of 12.700 Kg-s. of Charas, whereas, co-accused Sant Ram accompanying him was a conspirator and abettor of the offence. As such, appellant was charge-sheeted and convicted for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short “the Act” and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of four years, whereas, the co- accused Sant Ram was acquitted. Therefore, the appellant has challenged the judgment of his conviction and sentence passed by the learned trial Court in the present appeal. Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - The factual matrix giving rise to the present appeal can be stated as follows. On 30th July, 2004, at about 3 a.m., the police party headed by PW6 HC Narain Singh was patrolling in the area of Manikaran for the detection of crime, in the Government vehicle, bearing registration No.HP-34-A-0049, driven by Teja Ram. Around 3.45 a.m., they laid a Naka on the road near Bhairan bridge. At about 4.15 a.m., they spotted the appellant and his co-accused, coming on foot from the opposite side. They were stopped. The appellant was barefooted having a rucksack on his back, whereas, his co- accused was carrying a pair of “Chappal” of the appellant in his right hand, one of which was damaged. The area was isolated and it was odd time, thus, the police suspected that the appellant might be carrying some contraband. Thus, PW6 HC Narain Singh tried to find out independent persons from the vicinity to witness the search, through PW5 Constable Sunder Lal, but he could not find any person, as such, HC Narain Singh aforesaid included Sunder Lal and Bahadur Singh constables as witnesses. He alongwith his co-accused were informed of their right to exercise their option for the search either before the Magistrate or before a Gazetted Officer, in writing Ext.PW5/A, but, they opted to be searched by the police party present there. HC Narain Singh carried the search of the rucksack of the appellant and recovered 12.700 Kgs Charas from the rucksack, which was in a polythene envelope. From the recovered Charas, which were flats, the said Police Officer randomly separated two samples of 25 grams each, and sealed each of them separately with seal impression “T”. The remaining bulk alongwith polythene - 3 - cover Ext.P5 were put back in the rucksack Ext.P4 and then sealed with the same seal. The sample of seal was taken on a piece of cloth Ext.PW1/E. NCB forms, in triplicate were filled in. Facsimile of the said seal was also put on the NCB forms aforesaid. Case property was taken into possession vide memo Ext.PW5/D. Its copy was also supplied to the appellant. Nothing was recovered from the possession of the co- accused Sant Ram except a pair of “Chappal” of the appellant, its left side “Chappal” was found broken. The appellant and his co-accused were arrested for the offences aforesaid and grounds of arrest were intimated to them. Ruka Ext.PW6/A was sent for the registration of the case through PW5 Constable Sunder Lal to Police Station, Kullu, on the basis of which FIR Ext.PW5/A was registered. The police also prepared site plan Ext.PW6/B of the place of recovery. Special report, copy of which is Ext.PW3/B, was handed over by the HC Narain Singh to Prem Chand Dy.S.P. Headquarter, Kullu within the stipulated time. PW6 HC Narain Singh produced the case property as well as the appellant and his co-accused before PW4 SI/SHO Dorje Ram. He resealed the case property with his own seal producing English letter “A” and also took its sample Ext.PW4/C on a piece of cloth. PW4 SI/SHO Dorje Ram deposited the case property alongwith relevant documents in the Malkhana and photocopy of the entry in the register of Malkhana is Ext.PW1/A. - 4 - PW1 MHC Rup Singh sent the sample parcel alongwith sample of seal(s), NCB forms vide RC Ext.PW1/B, through PW2 Constable Anil Kumar to the Chemical Laboratory, Kandaghat, for analysis, which tested positive. Report is Ext.PA. The sample contained 33.11 percent of resin of Cannabis plant. After completing the investigation, the Challan was presented in the court for the trial of the appellant and his co- accused. The appellant and the co-accused were charge- sheeted for the offences aforesaid. They were also examined under Section 313 Cr.P.C. Their case was denial simplicitor. When called upon to enter into their defence, the appellant examined DW1 Daler Singh, a Registration Clerk from the office of Motor Registration and Licencing Authority, Kullu to prove that the official vehicle, which was taken by the police party for patrolling was motorcycle, registered in the name of one Itay s/o Gudilalder, a foreign National. The learned trial court disbelieved the version of the appellant, but however, did not find any evidence to link the co-accused with the offence charged, as such he was acquitted and the appellant was convicted and sentenced as aforesaid. During the course of arguments, Mr. B.K. Malhotra, learned counsel for the appellant, inter-alia, also took a point that PW1 MHC Rup Singh had shown to have received the case property in the Malkhana register at 10.35 a.m. on 30th July, 2004, whereas, PW4 SI/SHO Dorje Ram stated that after - 5 - resealing the parcels by him, he deposited the same at 11.35 a.m. with PW1, which cast a doubt in the prosecution case. Having heard the learned counsel for sometime, we felt it necessary to recall PW1 MHC Rup Singh, PW4 SI Dorje Ram, the then SHO and PW6 HC Narain Singh, the Investigating Officer for the just decision of the case. In compliance to the order dated 17th September, 2009, they put in appearance and were examined on 28th October, 2009. To clarifying the aforesaid ambiguity, Court questions were put to MHC Rup Singh. In reply to it, he stated that in the Malkhana register the time of receipt of the case property was recorded inadvertently, as 10.35 a.m., but in fact the case property was deposited at 11.35 a.m. According to PW6 Narain Singh, he reached the Police Station at 11.15 a.m. and had handed over the sealed parcel to the SHO, for the purpose of resealing, who after doing the needful deposited the same with MHC Rup Singh. He also produced original Roznamacha for the relevant period and on its perusal, we have found that the entry of his arrival in the Police Station was also mentioned on the day aforesaid at 11.15 a.m. alongwith the appellant, his co-accused and the case property. Therefore, in view of this, we did not consider it necessary to examine PW4, the then SI/SHO Dorje Ram and finally heard the arguments of the learned counsel for the parties and have carefully reappraised the evidence on record. On the scrutiny of the evidence, we find that PW6 Head Constable Narain Singh has corroborated the prosecution case and proved the recovery of the alleged contraband from - 6 - the possession of the appellant. He has very categorically stated that on 30th July, 2004 at 3.00 a.m. a Naka was laid at the place known as Chhrornalla near Bhrainpul and at about 4.15 a.m. he spotted the appellant and his co-accused coming on foot from Jari side. When they reached near their parked vehicle No.HP-34-A-0049 in which the police party had reached the place of Naka, they switched on the headlight, the appellant was found carrying a rucksack on his back and he was barefooted. He stated that it was isolated place and the time was odd, therefore, the police suspected that the appellant and his co-accused might be having some contraband in their possession. Therefore, he made an attempt to get independent witness from the locality and for that he sent Constable Sunder Lal (PW5), but he could not find any one. Thus, the aforesaid Investigating Officer included him and Constable Bahudar Singh as witnesses of the search and then informed the appellant and his co-accused to exercise their option either to be searched before the Magistrate or before a Gazetted Officer. The appellant opted to be searched by the police and the consent memo to this effect is Ext.PW5/A. He also testified that on the search of the rucksack Ext.P4 of the appellant, he recovered 12.700 Kgs. of Charas and randomly took two samples of 25 grams, which were sealed with seal impression “T”. The remaining bulk was also sealed with the same seal impression. NCB forms in triplicate were also filled in and one of such form is Ext.PW1/B which also contained facsimile impression of seals of “T” and “A”. He also proved the seizure memo Ext.PW-5/D. He further testified that the appellant was informed of the ground of his - 7 - arrest. Ruka Ext.PW-6/A was sent for the registration of the case through Constable Sunder Lal, who returned with case file at 9.15 a.m. to the spot. Thereafter he went to the Police Station and reached there at 11.15 a.m. and handed over the case property to PW4 SI/SHO Dorje Ram. PW-5 Sunder Lal has corroborated his version. Both these witnesses stood well in their cross-examination. However, no dent could be caused in their version. Further, PW4 Dorje Ram testified that the case property was produced before him by PW6 Head Constable Narain Singh at 11.15 a.m., which was sealed with seal impression “T” alongwith NCB forms in triplicate and the sample of seal used by the Investigating Officer. He resealed all the four parcels with the seal impression producing the English letter “A”. Thereafter he filled in columns No.9 to 11 of NCB forms. He proved Ext.PW1/B, one of such form. He also stated that he put facsimile of the seal used by him on the said form. He testified that at 11.35 a.m. he deposited the case property and the NCB forms with MHC (PW1) in the Malkhana. This fact also finds mentioned against column No.9 of the NCB form Ext.PW1/B. Although, PW1 MHC Rup Singh stated before the learned trial Court that the case property was deposited with him at 10.35 a.m. as per the entry in Malkhana register when reexamined before us, he stated that it was an inadvertent clerical mistake, it should have been 11.35 a.m. PW6 Narain Singh had also produced Roznamcha before us for the relevant period, in which it is mentioned that he arrived in the Police Station at 11.15 a.m. on 30th July, 2004 alongwith case property and appellant. Although, both these witnesses - 8 - who were recalled by the Court and were cross-examined by both the parties, but nothing material could be extracted in favour of the appellant, rather the said ambiguity got clarified. On scanning the evidence on record, we are satisfied that the alleged contraband was recovered from the rucksack carried by the appellant, its samples were also separated as stated above. Further MHC Rup Singh (PW1) stated that one of the sample parcels was sent for its examination to CTL, Kandaghat through Constable Anil Kumar (PW2) alongwith sample of both the seals as well as NCB forms in triplicate, vide RC Ext.PW1/C. After its deposit in the Laboratory, its receipt was deposited with him. Anil Kumar (PW2) corroborated this version. The chemical analysis report confirmed that the sample parcel was containing resin of Cannabis plant. On the close scrutiny of the aforesaid evidence, we find that the statements of the official witnesses are cogent, constant, reliable and worth inspiring confidence. No ill-will or any malice has been imputed to any of them to falsely implicate him in such a huge quantity, which can not be even planted. Faced with the above situation, learned counsel for the appellant desperately argued that the evidence on record revealed that the alleged contraband was in the shape of “Chapatis” (flats) and the Investigating Officer did not take the sample from each of such flats, so as to make it representative in character. Therefore, it cannot be said that the remaining bulk was of Charas but at the worst the appellant can be held guilty for keeping in possession of 25 grams of Charas, which is a ‘small quantity’ and the sentence - 9 - imposed upon him by the learned trial Court requires to be reduced. We have also considered this aspect of the matter. In fact, in the present case, the total quantity recovered was 12.700 Kgs., which is a huge quantity. The Act and the Rules do not provide for sending of the entire quantity of the recovered stuff to the chemical examiner for its analysis nor there is any provision that some portion of each piece from the recovered stuff should be separated as sample. Samples are normally taken randomly by picking up a few pieces. It is not the case of the appellant that the sample taken from the stuff, recovered from the appellant, was not representative. No such suggestion was put to PW-6 Head Constable Narain Singh or any other witness, who seized the stuff and witnessed the sampling process that the sample taken by him did not represent the recovered stuff. Therefore, we are of the considered view that it is too late in the day for the appellant to come out with the plea that the sample of the recovered stuff was not representative. In view of the above stated position, we see no merits in the appeal and the same is, therefore, dismissed. (Surjit Singh), J. November 3, 2009. (Surinder Singh), J. 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