IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 257 of 2006 Reserved on: 28.8.2008 Date of decision: 1.09.2008 Tek Chand ... 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?1 No. For the appellant: Mr. Trilok Chauhan, Advocate. For the respondent: Mr. Ram Murti Bisht, Deputy Advocate General. Per V.K. Ahuja , J.: This is an appeal filed by the appellant under Section 374 Cr.P.C. against the judgment of sentence and conviction passed by the learned Sessions Judge, Kullu, dated 23.6.2006, vide which the appellant was held guilty under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the ‘N.D.P.S. Act’ and was sentenced to rigorous imprisonment for ten years and to pay fine of Rupees One Lac. In default of payment of fine, the appellant was to undergo rigorous imprisonment for a period of six months. Briefly stated, the facts of the case are that on 3.7.2004 PW-2 S.I. Balwant Singh alongwith PW-1 Yash Pal, constable, HHC Nand 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. Lal, HHC Om Prakash PW-10 and other police officials were going towards Jainallah from P.P. Manikaran at 12.30AM. They reached the place at around 3.00AM and laid Nakka and at about 6.30AM, two persons were spotted coming from the side of Katagla towards Jainallah. These persons on seeing the police party tried to turn back and on suspicion they were apprehended and one of them was appellant, while other was Lot Ram. It is further the case of the prosecution that the place of occurrence was isolated since there was no locality nearby and PW-2 Balwant Singh associated two police officials present with him, namely, PW-1 Yash Pal, constable and PW-10 HHC Om Prakash as witnesses. The accused were informed orally as well as by notice in writing if they wanted to give their search before a Magistrate or a gazetted officer. The accused opted to be searched by the police and the consent memo was prepared which was signed by the accused persons. On search of the person of the appellant, a polythene envelope was recovered under his right arm inside the jacket worn by him. On opening, six polythene packets containing Charas in the shape of chocolate was found. The recovered Charas on weighment was found to be 1 Kg. 50 grams. Two samples were taken from the recovered Charas and these were sealed separately, while the remaining Charas was sealed separately. After sealing them, these were taken into possession vide recovery memo signed by both the witnesses. The Investigating Officer complied with the formalities by informing the accused about the offence committed by them, prepared a ruka and sent the same to the Police Station through HHC Om Prakash for registration of the case, recorded the statements of the witnesses, informed the relatives of the accused persons in regard to their arrest and on reaching the Police Station, he deposited the case property with the MHC. Thereafter, special report was also sent to Deputy Superintendent of Police Prem Chand and after investigation, the challan was filed before the Court. On consideration, a charge under Section 20 of the ‘N.D.P.S. Act’ was framed against the appellant, while charge under Section 20 read with Section 29 of the ‘N.D.P.S. Act’ was framed against his co-accused Lot Ram, who both were tried by the trial Court leading to the conviction and sentence of the appellant as detailed above, while his co-accused Lot Ram was acquitted of the charge framed against him. We have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellant in general was that the prosecution has failed to prove their case beyond any reasonable doubt and, therefore, the appellant deserves acquittal accordingly. However, no specific instances were pointed out which could lead to the inference that the prosecution story suffers from major contradictions or infirmities and as such, cannot be relied upon. However, a perusal of statement of PW-2 S.I. Balwant Singh, Investigating Officer, shows that he had apprehended both the appellants since they tried to slip away on seeing the police party and issued a notice in writing Ext.PW1/A, gave them an option and they opted to be searched by the police party. The signatures on the option memo were given by the appellant and this option memo was also signed by both the police officials who were associated as witnesses, namely PW-1 C. Yash Pal and PW-10 HHC Om Prakash. Thereafter, the Charas was recovered from the possession of the appellant, which on weighment was found to be 1 Kg. 50 grams and two samples were taken separately and were sealed and the remaining Charas were sealed separately. The Investigating Officer has also proved that the recovery memo was prepared and its copy was handed over to the accused and the case property was taken into possession vide recovery memo Ext. PW1/D. The appellant was also informed vide Ext. PW1/F about the offence committed by him and the punishment provided thereof. He also prepared ruka Ext. PW2/D and sent the same to the Police Station through HHC Om Prakash. He recorded the statements of the witnesses, arrested the appellant and informed the relatives about their arrest. He deposited the case property at the Police Station and thereafter, sent a special report Ext. PW2/G to Deputy Superintendent of Police Prem Chand. Statement of PW-2 S.I. Balwant Singh on all the material particulars in regard to the recovery and preparation of the necessary documents has been corroborated by PW-1 C. Yash Pal, a member of the raiding party and PW-10 HHC Om Prakash, who both have corroborated the statement of the Investigating Officer. Apart from this, the prosecution had also examined PW-3 Kashmi Ram, constable who had received the special report and had put up before the Deputy Superintendent of Police. PW-4 HC Jia Lal who was posted as Additional MHC, has stated about the case property deposited in the Malkhana and sending of the sample parcel to CTL Kandaghat through constable Shyam Das who has been examined as PW-5 and has corroborated this version. PW-6 S.I. Ram Karan was posted as S.H.O. and on receipt of the ruka from S.I. Balwant Singh, he recorded FIR Ext. PW6/A and on return, the case property was deposited with the MHC by S.I. Balwant Singh and he resealed the case property with his own seal and gave the case property to MHC. The said MHC has been examined as PW-6 who received the case property and has stated about the sending of sample by Additional MHC Jia Lal. PW-7 C. Sunil Kumar has proved the rapat Ext. PW2/A in regard to the proceeding for patrolling etc. by the Investigating Officer PW-2 Balwant Singh. PW-9 Inspector Badri Singh had prepared the challan on receipt of the report of the Chemical Examiner. On a perusal of the above evidence led by the prosecution, it is clear that the statement of the Investigating Officer PW-2 S.I. Balwant Singh in regard to the recovery of the Charas from the possession of the appellant has been duly corroborated by the two recovery witnesses, namely PW-1 C. Yash Pal and PW-10 HHC Om Prakash. The statement of the Investigating Officer PW-2 clearly shows that there was no locality nearby from which independent witnesses could have been associated and nothing has come up in this regard from the statement of the Investigating Officer or the two recovery witnesses PW-1 C. Yash Pal and PW-10 HHC Om Prakash. It is also clear from their statements that the appellant was apprehended suddenly and there was no opportunity to call independent witnesses. However, their statements clearly shows that the provisions of Section 50 of the ‘N.D.P.S. Act’ were duly complied with since option was given to the appellant if he wanted to be searched in the presence of a Magistrate or a gazetted officer and he consented to be searched by the police. The other link evidence is also on record and, therefore, the report of the Chemical Examined Ext.PA can be linked with the accused. There are no material contradictions or infirmities in the statements of the witnesses examined by the prosecution. The learned trial Court had also discussed the evidence in detail and accordingly, we are of the opinion that the findings of the learned trial Court holding the appellant guilty under Section 20 of the ‘N.D.P.S. Act’ are liable to be affirmed and are affirmed accordingly. The main submissions made by the learned counsel for the appellant were that keeping in view the decision of the Division Bench of this Court in Dharam Pal’s case, the quantity of Charas recovered cannot be said to be 1 Kg. and as such the appellant was entitled to punishment provided for recovery of small quantity only in view of the reasoning given by the Division Bench of this Court. Reliance was placed upon a decision of Division Bench of this Court in Dharam Pal Vs. State of H.P., Latest HLJ 2007 (HP) 827. A perusal of this judgment shows that a question was raised before the Division Bench that in case the percentage of resin found in the content of Charas is less than the recovered Charas, the quantity of resin found can be said to be Charas and not the whole quantity recovered from possession of the accused. Accordingly, it was held that the sentence has to be imposed keeping in view the quantity of resin found in the total quantity of Charas recovered from the possession of the accused. A perusal of the said judgment of the Division Bench shows that a similar plea was raised before the Bench and in that case the quantity of Charas recovered was 1.600 grams, but the chemical examiner on the analysis of representative of the sample of the stuff found that it contained only 28.92% resin and accordingly had referred to the term cannabis, charas, ganja etc. The Division Bench finally concluded that since the report of the chemical examiner shows that percentage of resin found was 28.92% and it was silent about the rest of the contents of the stuff which means that the entire quantity of the recovered stuff was not Charas. The learned Deputy Advocate General appearing for the State had submitted that there are no definite findings of the chemical examiner that apart from the percentage of the resin found in the stuff, rest of it was not Charas or it contained some other substance. It was submitted on behalf of the State that there is nothing in the report to suggest that the other part of the substance recovered was mixture of gur, dhoop or some other extraneous substance which was mixed with Charas and as such, it cannot be said that only percentage of resin found in the substance recovered was Charas and not the remaining substance recovered from the possession of the accused. This question cannot be considered by this Court on the basis of the arguments raised by the learned Additional Advocate General since this question has been discussed at length by the Division Bench of this Court which had finally concluded that only the percentage of the resign found in the substance can be termed as Charas and not the remaining substance. Once there are findings of the Division Bench about this aspect, this plea is not open to be considered before this Court which is bound by the Division Bench ruling of this Court. Applying the decision in the above case in which it was held that recovered stuff was Charas only to the extent of resin content found therein and accordingly, it has been concluded that since in the present case the resin content found was 30.11% approximately 1/3rd, it can be concluded that the Charas recovered from the possession of the accused was 1/3rd of the total substance i.e. about 316 grams only. Therefore, the recovered Charas can be said to be more than small quantity but less than commercial quantity since the commercial quantity is 1 Kg. while the small quantity is 100 grams and, therefore, the appellant does not deserve the maximum punishment prescribed under Section 20 of the Act as awarded by the learned trial Court for ten years and fine of Rupees One Lac. Therefore, relying upon the decision of the Division Bench, the sentence imposed deserves to be reduced considerably and keeping in view the fact that the punishment for recovery of commercial quantity of 1 Kg. is prescribed as ten years, we are of the opinion that the appellant is entitled to rigorous imprisonment for a period of three years and six months. Keeping in view the above discussion, the appeal filed by the appellant is partly accepted to this extent that the sentence awarded by the learned trial Court is reduced to rigorous imprisonment for a period of three years and six months. The fine is also reduced to Rs.30,000/- and in default, the appellant shall undergo rigorous imprisonment for a period of three 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 deposit of fine shall also be sent to this Court as and when the fine is realized. A copy of the judgment alongwith record be returned to the learned trial Court. ( Deepak Gupta ), Judge ( V.K. Ahuja ), September 1, 2008 Judge (BSS)