IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 271 of 2006. Judgment Reserved on October 9, 2009. Date of decision:October 22nd, 2009. Chaman Lal .. Appellant. Versus State of Himachal Pradesh .. Respondent. Coram: The Hon’ble Mr. Justice Surjit Singh, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes. For the Appellant : Mr. Ashok Sharma, Advocate. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surinder Singh, J. In this appeal the appellant has challenged the judgment of his conviction, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short “the Act”, for allegedly keeping in possession of 4 Kgs. Charas whereby the learned trial Court vide its detailed judgment dated 1st December, 2004 sentenced him to undergo rigorous imprisonment for a period of ten 1 Whether the reporters of Local Papers may be allowed to see the judgment ? Yes. - 2 - years and to pay a fine of Rs.1,00,000/- with a default clause. In brief, the prosecution story as emerges from the evidence on record can be stated thus. On 23rd September, 2003 at 3.20 p.m., PW-6 Inspector/SHO Partap Singh of Police Station, Chowari (Chamba) alongwith other police officials, laid a Nakka for traffic checking at ‘Sudhli Chowk’ on Chamba-Lahru road. The appellant came driving scooter bearing No.PB-36-B-0265 from ‘Jot’ side. He was stopped by the police party. While enquiring about his name and address, he got perplexed. This raised a suspicion in the mind of the police officials that he might be having some contraband with him. The police associated PW-1 Tarbeej Singh and DW-1 Vinesh Kumar from the nearby shop as independent witnesses. PW-6 asked him to exercise his option for conducting his search by the said police Officer or before a Gazetted Officer or the Magistrate. He consented to be searched by the said police officer. On checking his bag Ex.P-1, which was kept on the scooter, the police recovered four polythene bags containing 4 Kgs. Charas. PW-6 Inspector/SHO Partap Singh from the recovered stuff separated two samples of 20 grams each and sealed each specimen parcel with seal impression - 3 - ‘A’. The remaining bulk was also sealed with the same seal impression in one parcel Ex.P-1. The specimen of the seal was taken on a piece of cloth Ex.PW-1/A and seal after its use was handed over to witness Tarbeej Singh aforesaid. N.C.B. forms in triplicate were filled in. The case property alongwith scooter and its documents were taken into possession vide memo Ex.PW-1/C. Its copy also supplied to the appellant. A Rukka Ex.PW-6/A was sent for the registration of the case to Police Station concerned, on the basis of which FIR Ex.PW-7/A was formally recorded. The Special report Ex.PW-2/B was sent to the Superintendent of Police, Chamba within the stipulated time, which was got entered in the receipt book by PW-2 Rakesh Kumar, Reader of the S.P. and was produced the same before the S.P. The police had also prepared site plan Ex.PW-6/B of recovery. The appellant was arrested and he was also informed about the grounds of arrest. The case property was produced before PW-7 ASI Mehar Sigh, who was officiating as SHO, in absence of Inspector Partap Singh. He resealed the case property with his seal impression ‘M’ and deposited it with PW-4 - 4 - MHC Des Raj in the Malkhana and its entry was made in the Malkhana register against Sr. No.175. On 26th September, 2003, one sample parcel was sent to CTL, Kandaghat vide RC No.57/21 through PW-5 Constable Budhi Ram alongwith NCB forms and other relevant documents. The sample parcel alongwith the police docket, was deposited by him in the Laboratory on 27th September, 2003. Said sample tested positive in the Laboratory and the report is Ex.PW-4/A. The sample contained 27.24% resin of cannabis plant, which is a content of Charas. After recording the statements of the witnesses and completion of the investigation, the challan was presented in the Court for the trial of the appellant. The appellant was charge-sheeted for the offence aforesaid. He pleaded not guilty and claimed trial. Prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure. He took up the defence that he was arrested by the police from Bus-Stand at “Chowari”, where he was waiting for bus and made to sign certain documents. He stated that he was not in possession of any contraband as alleged. When called upon to enter into his defence, he examined the shop- - 5 - owner DW-1 Vinesh Kumar a prosecution witness of recovery to probablise the defence version. The learned trial Court did not believe the defence raised. Thus, while relying upon the prosecution evidence, convicted and sentenced the appellant as aforesaid, which has been challenged in this appeal. We have heard the learned counsel for the parties and have meticulously and carefully examined the evidence on record. On scanning the evidence, we have noticed that the defence taken by the appellant in his statement under Section 313 of the Code of Criminal Procedure as aforesaid was never put to any of the prosecution witnesses in their cross-examination, whereas PW-6 Inspector Partap Singh, has corroborated the prosecution case stated above in toto. The recovery of the contraband was effected by him in the presence of PW-1 Tarbeej Singh and DW-1 Vinesh Kumar, independent witnesses from the bag to which the appellant was carrying on his scooter. He further deposed that he took the sample randomly from all the four packets and made two sample parcels of 20 grams each, which were sealed on the spot with seal impression ‘A’ and the seal after its use was handed over to PW-1 Tarbeej Singh. Though Tarbeej - 6 - Singh initially turned hostile, but supported his version to the extent that in his presence and in the presence of DW-1 Vinesh Kumar, the police apprehended the appellant with scooter and on search recovered some black substance but he did not know whether it was Charas. In the cross-examination conducted by the learned Public Prosecutor he clearly admitted that on checking his bag as aforesaid 4 Kgs. Charas was recovered from him and samples of 20 grams each were taken separately. He admitted his own signatures and also the signature of DW-1 Vinesh Kumar on the seizure memo and admitted that the copy of seizure memo was also given to the appellant but in the cross-examination on behalf of the appellant, he stated that the sample was taken only from the two packets. On the perusal of recovery memo prepared on spot vis-a-vis the statement of the Investigating Officer Inspector Partap Singh it is amply clear that the samples of recovered stuff were taken from all the four packets, which were sealed on the spot which have not been disputed by the appellant. PW- 1 Tarbeej Singh also stated about the arrest of the appellant and informing him about the grounds of his arrest on the spot and identified his signatures on the arrest memo. He also admitted about having taken the - 7 - scooter into possession alongwith its key from the appellant vide memo Ex.PW-1/C. Even in his cross- examination he has categorically stated that three bigger parcels and two smaller parcels were packed and sealed by the police, on the spot and bigger parcel contained five seal impressions ‘A’ and the smaller contained three similar seals thereon. It also stands established that the case property was produced before PW-7 ASI Mehar Singh and he affixed three seals of English letter ‘M’ on the bigger parcel and two seals on each of the sample parcels and he also proved the sample seal Ex.PW-7/C used by him. He further stated that he had deposited the case property with MHC Desj Raj (PW-4). MHC Des Raj (PW-4) admitted that the case property was deposited with him by ASI Mehar Singh, which was entered in the Malkhana register. He proved two parcels Exs. P-1 and P-2 out of three deposited with him in the Malkhana and according to him one sample parcel alongwith NCB forms and other documents and copy of FIR was sent to CTL, Kandaghat for its examination through PW-5 Budhi Ram vide RC No.57/21. He proved one of the NCB forms Ex.PW-4/A, which contained the report of the Laboratory, which fact has - 8 - been mutatis-mutandis corroborated by PW-5 Constable Budhi Ram. Although DW-1 Vinesh Kumar owner of the shop, one of the recovery witnesses stated that nothing happened in his presence, but admitted his signatures on the memos prepared on the spot. He gave a different story that 3-4 persons were standing in his shop and police told him that the Charas was recovered from them and obtained his signatures on various papers. But he denied having taken into possession the scooter or any Charas from the appellant. He also stated that he did not ask the police official from where the Charas was recovered. On scrutiny of the evidence, it stands proved that the police had stopped the scooter to which the appellant was driving. He had a bag with him on the scooter. There is an overwhelming evidence on record to prove that on checking the bag it contained 4 Kgs. stuff which was in four polythene packets. The police Officer (PW-6) took sample from each packet and made its two parcels of 20 grams each. On examination it tested positive. It was found to be resin of cannabis plant, which is a content of Charas. The link evidence is complete. Thus we do not find any error in the judgment of conviction and sentence - 9 - passed by the learned trial Court. The recovered stuff is proved to be Charas from the possession of the appellant falling within the definition of ‘commercial quantity’. The defence raised is false, thus rightly rejected. The appeal is without merit, hence dismissed. ( Surjit Singh ), J. October 22nd , 2009. ( Surinder Singh ), J. (rc)