IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.61 of 2010. Judgment reserved on : 29.9.2011. Decided on: October 13, 2011. ____________________________________________________________ Ajay Thapa. ……..Appellant. Versus State of H.P. ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. Vikas Bhardwaj, Advocate. For the respondent : Mr. P.M. Negi, Dy. Advocate General. _________________________________________________________ SURINDER SINGH,J: The appellant hereinafter to be referred as “the accused” was convicted under Section 20(b)(i(B) of the Narcotic Drugs and Psychotropic Substances Act, in short ‘the Act’, and sentenced by the learned trial Court to undergo rigorous imprisonment for a period of five year and to pay a fine of `50,000/- and in default of payment of fine to further undergo imprisonment for one year, for allegedly keeping in his possession Charas 32.05% weight-in-weight in the recovered stuff of 1.200 Kg., hence the present appeal by him. 2. In short the prosecution story can be stated thus. On 2.12.2008, Police party headed by PW10 ASI Whether reporters of the Local papers are allowed to see the judgment? - 2 - Naresh Chand was present near the camping site at Raison in District Kullu, for checking the vehicles in connection with bomb blast. Around 9.45 P.M., a Punjab Roadways Bus bearing registration No.PB-35G- 8653 displaying the sign-board ‘Jallandhar to Manali’ reached there. It was stopped for checking. Police party boarded the Bus. Nobody was allowed to deboard. Shri Harjinder Singh driver was on the steering wheel and PW1 Singara Singh was its conductor. Whiling checking the bus, both of them were associated as independent witnesses. When the police party reached near Seat No.16, they found the accused sitting with a polythene bag to which he tried to conceal between his legs. He looked frightened, therefore, Police became suspicious and asked about his identity. (ii) On checking the polythene bag with him, the prints of which carried “Raju-Di-Hatti”, in the presence of aforesaid independent witnesses after giving a personal search to the accused, Police discovered the aforesaid contraband which on its weightment came out to be 1.200 - 3 - Kgs. The accused also produced the bus tickets worth `38/-. (iii) Police separated two samples of 25 grams each from the recovered stuff and sealed with seal impression “T” and the remaining 1.150 Kgs Charas was put in same polythene bag from which it was recovered. Case property was taken into possession vide seizure memo Ext.PQ. (iv) Police also filled in NCB forms in triplicate, one of which is Ext.PE on the spot. Seal after its use was handed over to the bus conductor PW1 Singara Singh. The facsimile of the seal was also taken on the NCB forms against the relevant columns. Sample of seal was also taken on a piece of cloth Ext.PP. Bus tickets were taken into possession vide memo Ext.PQ. (v) Ruqa Ext.PT was prepared which was handed over to PW8 HC Sher Singh, for the registration of the case, on the basis of which FIR Ext.PF was formally registered. (vi) Site plan Ext.PU of the place of recovery was prepared. The accused was arrested and - 4 - grounds of arrest vide memo Ext.PW were shown to him. (vii) Case property was produced before PW6 Inspector/SHO Om Parkash. He resealed it with his own seal having the impression of English alphabet “S” and filled in the relevant columns of the NCB forms aforesaid. He also took the seal impression used by him on a separate piece of cloth and such impression is Ext.PK. Thereafter the case property was handed over to PW2 MHC Mohinder Singh to deposit it in the Malkhana after making its entry in the relevant register, the abstract whereof is Ext.PV. One of the sample parcel alongwith NCB forms and other documents were sent through PW3 HC Mast Ram for its analysis to FSL Junga vide Road Certificate. (viii) Special report Ext.PN was prepared and sent within the statutory period to the Dy.S.P. Headquarters. (ix) On analysis of the sample, report Ext.PR was issued by the Chemical Analyst, FSL Junga. As per the report, the sample so sent contained - 5 - 32.05% weight-in-weight resin of the Cannabis plant. When the case was pending before the learned trial Court, remaining bulk was also sent for its examination to FSL Junga, which also tested positive for Charas. The Report to this effect is Ext.PS. 3. After recording the statements of the witnesses and completing the challan, it was presented before the Court for the trial of the appellant. He was accordingly charge-sheeted, faced trial and at the end of trial, he was convicted and sentenced as aforesaid, hence the present appeal. 4. Shri Vikas Bhardwaj, learned counsel for the accused vehemently argued that the prosecution has failed to prove its case in accordance with law. The link evidence is not complete. The alleged independent witness PW1 Singara Singh bus-conductor did not support the case of prosecution, as he turned hostile. He also denied having been handed over the seal by the Investigating Officer. Further before conducting the search, no personal search was given to the accused by ASI Naresh Chand and that there are also contradictions with respect to the number of police - 6 - personnel entering the bus. No reliance could be placed on the contradictory statements of the official witnesses as there is variation with respect to the time of putting the ‘Naqa’. Further that there is no evidence from where the scale and weights were procured by the police and lastly, there has been non-compliance of Section 50 of the Act also. 5. Shri P.M. Negi, learned Deputy Advocate General has supported the impugned judgment of conviction and sentence. 6. I have heard the learned counsel for the parties and have meticulously re-examined the evidence on record. 7. At the very outset, I would like to say that in view of the judgment passed by the Constitution Bench of the Apex Court, in VijaySinh Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609], the Constitution Bench, after examining the catena of its earlier judgments held that failure to comply with the provisions of Section 50 of the Act would certainly render the recovery of illicit article suspect and vitiate the conviction if the same is recorded only on the basis of recovery of the illicit article from the person of the - 7 - accused during such search. But in the instant case, the recovery of the alleged contraband is not from the personal search of the accused, therefore, Section 50 of the Act would not attract in this case. 8. To ascertain the culpability of the accused, I proceed to examine the other evidence on record in the light of the arguments advanced by the learned counsel for the accused. It stands established that the accused was travelling in the bus in question. He was having bus tickets worth `38/-. Said bus was signaled to stop. Police party boarded the bus. There were only five passengers travelling in the said bus occupying the different seats, as stated by PW10 ASI Naresh Chand whereas, accused was occupying Seat No.16, he looked frightened. His identity was asked. At that time, he was having a polythene bag clinched between his legs to which he tried to conceal. Aforesaid Police Officer asked him to get down from the bus in the presence of bus driver and the conductor and also HC Sher Singh. He rendered himself to be searched by the accused outside on the road in the presence of the said witnesses, but on checking no incriminating material was recovered, as such to this effect, memo - 8 - Ext.PO was prepared. Thereafter the polythene bag which had the inscription of “Raju-Di-Hatti” was checked, which contained the recovered stuff and on its weightment, it turned out to be 1.200 Kgs. It is specifically stated by PW10 aforesaid that two samples of 25 grams each were separated, after breaking the pieces of the Charas, remaining Charas was put back in the same envelope, which was wrapped in a cloth and sealed with seal impression “T”. Each of the sample parcels was also sealed with the same seal. NCB forms in triplicate were filled up and he proved such forms Exts.PE & PJ having been prepared in triplicate on the spot. It also bears the facsimile, which was used by him. Further he stated that the case property alongwith bus tickets was taken into possession vide seizure memo Ext.PQ in the presence of bus conductor, driver and also HC Sher Singh. Thereafter Ruqa was sent for the registration of the case as aforesaid. The accused was also arrested. Grounds of arrest were informed to him. Case property was handed over to Inspector/SHO Om Parkash in Police Station for resealing and he resealed the same with seal impression “S” and the case property was deposited with MHC. Thereafter, special - 9 - report was prepared and sent to the Dy.S.P., Headquarters. During the trial, he identified the bulk Ext.P1 and sample parcel Ext.P2, polythene bag Ext.P3 and Charas Ext.P4 having been recovered from the accused. 9. PW6 Inspector/ SHO Om Parkash corroborated his version and stated that after resealing the case property, he filled up the columns No.9 to 11 of the NCB forms prepared in triplicate, also took the sample of seal used by him which is Ext.PK and the case property was handed over to PW2 MHC Mohinder Singh intact to deposit in the Malkhana. 10. PW2 MHC Mohinder Singh testified the above contentions of PW6 SHO Om Parkash. He further stated that SI Om Parkash had also deposited the sample of seals “T” and “S”, copy of FIR, NCB forms in triplicate alongwith the case property. The necessary entries were made in the Malkhana register and the abstract whereof is proved as Ext.PB and further stated that on 4.12.2008, sample parcel alongwith aforesaid documents were sent through PW3 HC Mast Ram, for analysis vide RC No.188/08, the description of the sample parcel handed over to him has been given by - 10 - said HC Mast Ram in his statement to which he deposited intact in the Laboratory. He also stated that NCB forms in triplicate and other concerned documents were handed over to him by the MHC aforesaid alongwith sample which fact has not been disputed in his cross-examination. 11. PW8 HC Sher Singh has corroborated the above version in extenso and identified the case property during the trial of the case. 12. PW10 ASI Naresh Chand was subjected to the lengthy cross-examination. He did not exactly remember as to how many police officials boarded the front and rear doors of the bus, but according to him, probably three persons boarded front door and two persons from rear door and it took 5/7 minutes in associating the witnesses. He stated that since the accused was frightened, no other inquiry was made from him and except him no other passenger was alighted from the bus. While getting down from the bus, the accused was holding the polythene bag and while subjected himself to be searched by the accused, the same bag was in the hands of the accused. The process of weighing the Charas was carried by him - 11 - exclusively. He categorically stated that the personal search of the accused was conducted by him after the recovery, but no incriminating article was detected except the polythene bag, which was in his hands at that time. 13. PW8 HC Sher Singh in his cross-examination stated that on the way, they did not check any vehicle. Further according to him, when the bus was stopped by the members of the Police party, they boarded the bus for checking. Some police officials entered from the front door and some boarded from the rear door. He could not tell exactly which of the police officials boarded which door of the bus. The Police crew was associated by the independent witnesses. Accused was deboarded as he got frightened on seeing the police. Nothing has transpired between the Police and the accused. While getting down, he was holding envelope in his hands. When the accused conducted the search of the Investigating Officer, he put the polythene bag on the ground. The process of weighing was carried out by the Investigating Officer himself. The impressions of the seals were taken. He further stated that there is an - 12 - Adventure Resort and few huts near the spot. It took around 2 and ½ hours to complete the process of investigation till the writing of the Ruqa. 14. PW1 Singara Singh admitted that he was a conductor of the bus and that of Harjinder Singh was the driver. He also admitted that the said bus was stopped for checking at Raison and the accused was occupying Seat No.16 / 17 in the bus. The accused was taken inside the Picnic spot. After about 10 minutes, police told that one hour is likely to conclude the proceedings, so they should ask the passengers of the bus to board some other bus to reach their destination. There were about 20 passengers in the bus. Against this statement, he was declared hostile and permission was sought to cross-examine him. Then he admitted that his statement was recorded by the police and further admitted that the bus tickets of `38/- was issued to the passenger, who was occupying Seat No.16. Further he stated that he did not know the accused present in the Court was the occupant of the said seat. He denied that he as well as driver Harjinder Singh was associated as witness of the search, but according to him, he was standing outside the bus when the police checked the - 13 - passengers in the bus. He also denied that the seal after its use was handed over to him, but admitted that the tickets Ext.PA were issued to the accused, which was taken into possession by the Police. According to him, his signatures as well as that of the driver were obtained by the police on the blank paper. However, he admitted that the signatures of the accused were also taken by the police. He admitted that the copy of the search and seizure memo Ext.PG was supplied to the accused. He was also confronted with his statement Mark-C (Ext.PV) recorded under the Section 161 of the Code of Criminal Procedure. 15. On the critical examination of the aforesaid evidence, it is absolutely clear and stands established that while travelling in the bus aforesaid, the accused was having a polythene bag in his possession, to which he tried to conceal from the police. On its search, it contained the offensive matter, which turned out to be 1.200 Kgs., two samples as aforesaid separated therefrom, one of which was sent through PW3 HC Mast Ram and it was sealed with seal impression “T” and resealed with “S”. Its facsimile was also taken on NCB forms Ext.PJ and PE. Sample was sent through PW3 HC - 14 - Mast Ram was received in the Laboratory on 5.12.2008, as mentioned in the examination report Ext.PR. Description of the parcel against column No.7 clearly indicates that it bore requisite number of seal impressions “T” and “S”. Seals which were found intact and tallied with the seal impression sent by the SHO on the NCB forms and the sample was kept in the safe custody and on analysis, it contained 32.05% weight-in- weight resin of Cannabis plant. The sampling process has not been assailed in the cross-examination of PW10 ASI Naresh Chand, therefore, it cannot be said that it was not a representative sample. Further, the sample so analyzed stands fully connected with the recovered bulk. Though, the prosecution did not examine Sumer Bahadur or the person against whose order the remaining bulk was re-examined but its examination or non-examination in the circumstances is of a consequence against the aforesaid background, therefore, the contradiction of weight of parcel as indicated in report Ext.PS and pointed out by the learned counsel is immaterial. 16. In the above proved facts, I do not find anything, which could cause a dent in the prosecution - 15 - case. In my opinion, learned trial Court rightly convicted and sentenced the accused for the non- commercial quantity of Charas found in the recovered stuff. {Please see, the judgment passed by the Division Bench of this Court rendered in Dharam Pal vs. State of H.P. [ Latest HLJ 2007 (HP) 827] }. Since the accused was found in the possession of 384.6 grams of Charas, which was less than commercial quantity and more than small quantity, therefore, substantive sentence appears to be slightly higher, therefore, it is reduced to four years instead of five years and in default six months instead of one year, without disturbing the fine. 17. The appeal sans merit, accordingly dismissed subject to the modification in the sentence, as aforesaid. 18. The learned trial Court is hereby directed to send the modified warrant to the Superintendent of Jail concerned. 19. The matter stands disposed of. Send down the record. October 13, 2011. (Surinder Singh), (Pds) Judge.