HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 56 of 2008. Reserved on: 23.12.2008 Decided on: 24.12.2008 Tej Ram ………Appellant. Versus State of H.P. ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellant: Mr.Anup Chitkara, Advocate. For the respondent: Ms.Shubh Mahajan, Deputy Advocate General. V.K. Ahuja, J: This judgment shall dispose of an appeal filed by the appellant under Section 36 B of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as the NDPS Act), read with Section 374 Cr.P.C., against the judgment passed by the learned Special Judge, Kullu, dated 31.8.2007, vide which the appellant was convicted and sentenced under Section 20 of the NDPS Act for rigorous imprisonment for four years and to pay a fine of Rs.40,000/-. In default of payment of fine, the appellant was to further undergo rigorous imprisonment for six months. Briefly stated the facts of the case are that on 29.10.2005, PW-5 HC Naresh Chand, Investigating Officer, Police Station Manali, was proceeding towards Malana side at 5.30 a.m., alongwith other police officials. The police party reached at Naggar whereby PW-1 LHC Vinay Kumar and HC Narender Kumar met them and one police party headed by PW-5 Naresh Chand and _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - consisting of these two police officials left for Malana side. They reached near Chanderkhani in Rumsu forest at 3.00 p.m., when they stopped one person i.e. the appellant coming from Chanderkhani side having a rucksack on his back. On seeking the police party, he took U-turn and started walking briskly. On suspicion, he was apprehended and an option was given by PW-5 Naresh Chand if he wanted to give his search before a Magistrate or a gazetted officer. The memo Ext.PW-1/A was prepared and the accused opted to be searched by the police. Thereafter, PW-5 Naresh chand gave his personal search and conducted the search of the rucksack which the appellant was carrying and on the opening, charas in the shape of sticks and rounds was found kept in a polythene bag. The recovered charas was weighed and it was found to be 1.200 kg. Out of the recovered charas, two samples of 25 grams each were taken separately and these were sealed at the spot and were taken in possession in accordance with the procedure vide recovery memo. He prepared the spot map and sent a report to the police on which a case was registered and after registration, the challan was filed in the court and appellant was tried by the learned trial Court under Section 20 of the NDPS Act resulting in the conviction and sentence of the appellant, as detailed above. I have heard the learned counsel for the parties and have gone through the record of the case. The main submissions made by the learned counsel for the appellant were that there are minor contradictions in the statements of the Investigating Officer and another official witness and since the prosecution case solely rests upon the testimony of the official witnesses, even the minor contradictions in their testimonies assume significance and these statements, therefore, cannot be relied upon. - 3 - The contradictions pointed out by the learned counsel for the appellant during the course of arguments were that from the copy of the rapat Ext.PW- 2/F, the police officials consisting of S.I. Lal Singh and others had proceeded for patrolling etc. at 5.30 a.m. including PW-5 Naresh Chand, who was the Incharge of the raiding party, but no copy of rapat has been proved on record to show at what time PW-1 Vinay Kumar and Narender Kumar, Head Constable, who was not examined, had proceeded from the Police Station. It is true that the copy of the rapat proves about the departure of PW-5 Naresh Chand at 5.30 a.m., but no copies are on record regarding departure of two other police officials who were associated at the time of search of the appellant. A perusal of the statement of PW-5 H.C. Naresh Chand shows that he had associated Constable Vinay Kumar and H.C. Narender Kumar at Naggar, who met him. This clearly shows that both these witnesses had not proceeded alongwith PW-5 HC Naresh Chand from the Police Station together, but they had met the Investigating Officer PW-5 HC Naresh Chand on way only. The said LHC Vinay Kumar has been examined as PW-1, who has stated that he was on patrolling in Naggar area alongwith H.C. Narender and HC Naresh Chand met them and they proceeded towards Chanderkhani on foot where they intercepted the appellant. No copy of the rapat has been produced on record to show as to when these two police officials departed from the Police Station. It was not necessary to prove the departure of both these witnesses also from the Police Station since that part of evidence was not very material and, therefore, in my opinion it does not affect the merits of the case. The next contradiction pointed out was that PW-5 H.C. Naresh Chand has stated in his statement that when he reached at Patlikul, Constable Vinay Kumar also met them and handed over the case file to him there. In cross - 4 - examination, he has stated that he did not visit P.P. Patlikul and rather went to Police Station, Manali straight from the chowk itself. On the other hand, PW-1 LHC Vinay Kumar has stated that the SHO had handed over the case file to him and he was directed to hand over the same to the I.O. HC Naresh Chand at Patlikul Police Post. He stated that he went to Police Post Patlikul and handed over the file to HC Naresh Chand. The only contradiction pointed out was that this witness has stated that the file was handed over at Police Post Patlikul, whereas PW-5 HC Naresh Chand has stated that Constable Vinay Kumar met them at Patlikul and handed over the case file, though he did not state that they visited the Police Post Patlikul and received the file there. This is no contradiction in the eyes of law and it does not affect the testimony of these two witnesses in any manner. The next infirmity pointed out by the learned counsel for the appellant was that PW-5 HC Naresh Chand has stated that on 1.12.2005, he was officiating as MHC, Police Station, Manali and sent the case property to CTL, Kandaghat. He stated that the case property remained in his safe custody and was not tampered with in any manner. In his statement, he has stated that the case property was deposited at Police Station Manali and was produced before the SHO, who had resealed the same. The mere fact that this witness had been officiating as MHC at Police Station, Manali, after more than one month of the occurrence, when the sample was sent by him to the CTL Kandaghat, is not sufficient to hold that the case property was tampered with by him and there was no bar to his posting as MHC on a subsequent date. He had deposited the case property with the SHO who had resealed it and given it to the then MHC and the mere fact that PW-5 Naresh Chand was officiating as MHC when the sample was sent to the expert is not sufficient to hold that his statement cannot - 5 - be believed or that he had tampered with the case property during the time he was officiating as MHC. He could not have tampered with the case property, when the same had already been resealed by the SHO with his own seal and handed over to the then MHC. Until and unless he was in possession of the seal used by the SHO, there was no question of his tampering with the case property. The infirmity pointed out by the learned counsel for the appellant does not at all affect the merits of the case. I have gone through the statement of PW-5 HC Naresh Chand, Incharge of the raiding party, who has clearly stated about the joining of two police officials, namely, PW-1 Vinay Kumar and HC Narender Kumar, not examined, and recovery of the charas from the possession of the appellant, which, on weighment, was found to be 1.200 kg. He has clearly stated about the taking of the sample, taking into possession the charas by separately sealing the samples and the remaining charas and preparation of recovery memo, ruka, spot map etc. His statement duly stands corroborated by the testimony of PW-1 LHC Vinay Kumar and there are no material contradictions in their statements in regard to the manner in which the appellant was apprehended and recoveries were effected from his possession and the documents were prepared at the spot. These statements find further corroboration from the statement of PW-2 Hari Singh, who had registered the FIR Ext.PW-2/A, made the entries in the Malkhana register when the case property was handed over to him by the SHO Jagdish Chand and he handed over the charge to HC Naresh Kumar when he proceeded on leave. The sample was sent to the office of Chemical Examiner, Kandaghat through PW-3 HHC Bir Singh, who has corroborated this statement. PW-6 S.I. Jagdish Chand has stated that the ruka Ext.PW-5/A was brought to him by Constable Vinay Kumar and he recorded the FIR Ext.PW-2/A and the case - 6 - property was produced before him by HC Naresh Kumar and he resealed the same and handed over the case property to the MHC, Police Station, Manali. The evidence has been thoroughly appreciated by the learned trial Court as well as by this Court and there are no material contradictions or infirmities to disbelieve the prosecution story. The learned counsel for the appellant has conceded that the provisions of Section 50 of the NDPS Act were not attracted to the present case since no personal search of the appellant was affected but the recoveries were effected from the bag being carried by the appellant. In view of the evidence that the sample was duly sent to the office of the Chemical Examiner, Kandaghat, the report of the Chemical Examiner Ext.PA can be linked with the accused that the contents were found to be that of charas. Thus, it follows from the above discussion that the prosecution evidence clearly proves that the charas was recovered from the exclusive and conscious possession of the appellant. The only question left for consideration is as to whether the quantity so recovered can be linked with the appellant or the percentage of the resin can be linked with the appellant. On this question, the learned counsel for the appellant has relied upon the decision of a Division Bench of this Court in Dharam Pal vs. State of H.P., Latest HLJ 2007 (HP) 827, in which it was held that the quantity of charas recovered from the accused has to be worked out on the basis of resin found in the recovered stuff. The said judgment was applied by the learned trial court and it had observed that since the resin content in the recovered charas were 36.70%, only the recovered charas comes to 440.40 grams, which was more than the small quantity but less than the commercial quantity. Accordingly, the learned trial Court had imposed sentence of regorious imprisonment for four years and a fine to the extent of Rs.40,000/-. The learned counsel for the appellant has prayed that since the - 7 - appellant is in custody for the last more than three years and as such the sentence may be reduced to some extent. Keeping in view the submissions made by the learned counsel for the appellant, the appeal filed by the appellant is accepted to this extent that the sentence imposed by the learned trial Court is reduced to rigorous imprisonment for a period of three years and six months and fine is also reduced to Rs.20,000/-. In default of payment of fine, the appellant shall undergo rigorous imprisonment for a further period of 2 months. The learned trial court shall take steps that the appellant serves the sentence and fresh jail warrant be issued accordingly by the trial Court. The information regarding the deposit of fine shall also be sent to this Court as and when the fine is realized. A copy of the judgment alongwith the record of the case be returned to the learned trial Court. The appeal stands disposed of accordingly. December 24, 2008. (V.K. Ahuja), (TILAK) Judge.