IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 42 of 2010 Judgment reserved on: 7.4.2011 Date of decision: 13 .4. 2011. Hardev …Appellant. Versus State of Himachal Pradesh ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Appellant : Mr. Tarlok Chauhan, Advocate. For the Respondent : Ms. Ruma Kaushik, Addl. Advocate General. __________________________________________________________ Kuldip Singh, Judge The judgment of conviction and sentence dated 4.11.2009 passed by the learned Special Judge, Chamba in Sessions Trial No. 10 of 2009 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘Act’) has been assailed in the appeal. The appellant has been sentenced to undergo rigorous imprisonment for a period of four years and pay a fine of ` 40,000/-, in default of payment of fine, the appellant shall further undergo imprisonment for six months. 2. The prosecution case in brief is that on 21.12.2008 at ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 about 6.15 P.M. PW-8 H.C. Deepak Kumar and other police personnel were present near Govt. Senior Secondary School, Himgiri. They were on patrolling duty when appellant came there carrying a gunny bag in his hand. On suspicion, search of the bag of the appellant was conducted, it was found containing Charas which on weightment was found 2 Kilograms. Two samples 25 grams each were taken, the samples and balance quantity of Charas were sealed. NCB forms were filled, rukka was sent to Police Station through PW-2 SPO Tek Chand, copy of rukka was also sent to S.P. Office, Chamba through SPO Bhikham Singh. On receipt of rukka, FIR Ex.PW-4/A was registered at Police Station, Tissa by PW-4 H.C. Madan Lal. The appellant was arrested. 3. The case property alongwith NCB forms and sample seal were produced before PW-5 Inspector Brij Mohan Sharma by PW-8 H.C. Deepak Kumar, who re-sealed the same. PW-5 completed the NCB forms. The case property alongwith sample seals and documents were deposited with PW-4 MHC Madan Lal, who made entry in the Malkhana Register. Ex.PW-6/B special report was prepared and sent to S.P. Chamba through PW-9 C. Jiwan Singh. 4. On 23.12.2008 one sample parcel alongwith sample seal NCB form, copy of recovery memo and copy of FIR were sent to FSL, Junga through PW-9 C. Jiwan Singh vide road certificate No. 138 of 2008 Ex.PW-4/E. The report of Chemical Examiner Ex.PX was obtained and the sample was found mixture of cannabis and sample of Charas. 3 5. On completion of investigation, challan was submitted in the court against appellant for offence punishable under Section 20 of the Act. The appellant was accordingly charged, he pleaded not guilty and claimed trial. The prosecution has examined nine witnesses and produced several documents. The statement of appellant was recorded under Section 313 Cr.P.C. The appellant took the stand that he is innocent and he has been falsely implicated in the case. The appellant led no evidence in defence. On conclusion of trial, learned Special Judge convicted and sentenced the appellant, as noticed above, hence appeal. 6. I have heard the learned counsel for the parties and have also gone through the record. On behalf of the appellant, it has been submitted that the court below has not properly appreciated the material on record. It was a case of prior information. No independent witnesses were associated at the time of alleged recovery. The sample was not taken from homogenous mixture, NCB forms were not filled at the relevant time. The prosecution story is unbelievable. The inferences drawn from the evidence are also wrong. The learned court below has erred in convicting and sentencing the appellant. The learned Additional Advocate General has supported the impugned judgment and has submitted that prosecution has proved the case against the appellant from whom two kilograms contraband was recovered. The learned Additional Advocate General has prayed for dismissal of the appeal. 4 7. PW-1 C. Ajay Kumar has stated that on 21.12.2008 he alongwith HC Deepak Kumar and others at about 6.15 P.M. were at Govt. Senior Secondary School, Himgiri. The appellant was carrying a bag in his hand. The bag was searched by HC Deepak Kumar and on search, it was found containing one white cloth containing charas in the shape of candle and balls. SPO Jamaldeen brought the scale and weights from a shop behind the school and on weightment, recovered charas was found 2 Kg. Two samples of 25 grams each were drawn and were sealed with seal ‘D’. The remaining charas was also sealed with the same seal. The specimen impression of seal was taken on piece of cloth Ex.PW-1/A, seal was handed over to C. Jiwan Singh. NCB form was filled in on the spot and case property was taken into possession alongwith samples vide memo Ex.PW-1/B which was signed by him and C. Jiwan Singh as witnesses. The appellant also put his signatures on the same. In cross-examination, he has stated that police party had no prior information regarding contraband. At that time, no person came there. HC Deepak Kumar filled in NCB forms on the spot qua the columns which related to him. The samples were drawn after mixing the contents from Batties (sticks). 8. PW-2 SPO Tek Chand has supported the prosecution story. He has stated that it is incorrect that there is any Abadi. There are 5-6 shops at the spot. The samples were drawn by H.C. Deepak Kumar from the Batties (stkcks). PW-3 C. Raj Singh has stated that on 22.12.2008 at 7.15 A.M. HC Deepak Kumar handed 5 over three parcels sealed with seal ‘D’ to him which were handed over to SHO alongwith NCB form. The SHO/Inspector Brij Mohan Sharma re-sealed the case property with seal impression ‘A’ and memo to this effect is Ex.PW-3/A. After resealing the case property was handed over to MHC Police Station, Tissa. He identified his signatures on Ex.PW-3/A. 9. PW-4 HC Madan Lal has stated that FIR Ex.PW-4/A was registered by him. The Investigating Officer handed over the case property to SHO, who re-sealed the case property with seal ‘A’, specimen seal impression is Ex.PW-4/B which bears his signatures. The SHO handed over the case property to him which he entered in the Malkhana Register at serial No. 307, abstract of Malkhana Register is Ex.PW-4/C. On 23.12.2008 vide R.C. Ex.PW-4/E he handed over one parcel containing 25 grams of Charas alongwith NCB form, 2 specimen seal impressions, carbon copy of recovery memo, photocopy of FIR, Form-F and forwarding note to C. Jiwan Singh for depositing at FSL, Junga, who on return handed over receipt Ex.PW-4/D to him. 10. PW-5 Inspector Brij Mohan Sharma has stated that SPO Tek Chand and SPO Bhikham Singh brought rukka, on that basis FIR Ex.PW-4/A was registered and endorsement Ex.PW-5/A was made by him. He completed NCB form, columns No.6 A, B and 7 of NCB form were filled in by him. PW-6 C. Om Parkash has stated that C. Jiwan Singh handed over to him copy of rukka. He was posted as Assistant Reader to S.P., Chamba. He produced the rukka before ASP, who after seeing handed over the same to 6 him for record. He has proved rukka Ex.PW-6/A. He has also stated that on 23.12.2008 C. Jiwan Singh handed over to him special report Ex.PW-6/B which was also produced before ASP, Chamba, who after seeing the same handed over to him for record. 11. PW-7 Pawanjit has stated that he gave scale and weights to police. He was declared hostile and was cross-examined by the Prosecutor. In cross-examination conducted by the defence, he has stated that his shop is situated at a distance of 12 – 14 metres from Govt. Senior Secondary School, Himgiri. There are 7-8 shops at Himgiri. There is no residential house at Himgiri near Govt. Senior Secondary School. 12. PW-8 H.C. Deepak Kumar has stated that on 21.12.2008 he alongwith other police personnel was present near Govt. Senior Secondary School, Himgiri at about 6.15 P.M. for patrolling. Hardev came from other side having a sack in his hand which was searched and ‘Bhang’ in the shape of sticks and balls was found. No independent witness was available. On weightment, contraband was found 2 Kg., two samples of 25 grams each were taken, sampling and sealing was done on the spot. NCB forms were filled in at the spot. NCB form is Ex.PW-8/A. Rukka Ex.PW- 8/B was sent to Police Station, Tissa. The appellant was arrested vide memo Ex.PW-8/D. On arriving at Police Station, he produced three parcels and NCB forms and accused before SHO, Brij Mohan Sharma, who re-sealed the three parcels with his seal. In cross- examination, he has denied that there are 8-10 shops at a locality near Govt. Senior Secondary School, Himgiri. In NCB form Ex.PW- 7 8/A columns relating to him were filled in by him at the spot and other columns of NCB forms were filled in by him at the direction of SHO at Police Station. 13. PW-9 C. Jiwan Singh has supported the prosecution case and has stated that on 23.12.2008 MHC Madan Lal handed over to him one sample parcel alongwith specimen seal impressions ‘A’ and ‘D’, one enclosed envelope vide R.C. No. 138/08 which he deposited at FSL, Junga on 26.12.2008. The seal which was entrusted to him was not brought by him in the Court on the date he made the statement. 14. The learned counsel for the appellant has stated that it is a case of prior information. There is non-compliance of Section 42 of the Act. In support of this submission, the learned counsel for the appellant has relied the statement of PW-2 SPO Tek Chand, who has stated that he and Jamaldeen had already left the Police Station two days earlier to apprehend the accused. The defence has not elaborated further from PW-2 on what basis he and Jamaldeen had left two days earlier for apprehending the accused. It cannot be inferred from the statement of PW-2 that anyone from the police party on 21.12.2008 before the search of the bag of the appellant was having prior information that appellant was carrying Charas or any other contraband in his bag. PW-1 C. Ajay Kumar has stated that police had no prior information regarding contraband. Thus, it can be safely concluded that police party was not having any prior information that appellant was carrying 8 contraband when his bag was searched. Therefore, appellant cannot take benefit of Section 42 of the Act. 15. It has been submitted on behalf of the appellant that no independent witness was associated at the time of alleged recovery even though there were shops nearby and even Abadi. The recovery was made at about 6.15 p.m. on 21.12.2008 and at that time it was already dark. The evidence has come that there were shops but no witness has stated that in fact shops were open at that time. PW-2 SPO Tek Chand has stated that there was no Abadi near the place of recovery. PW-1 C. Ajay Kumar has also stated that at that time no person came there. The recovery was made at a place where independent witnesses were not available. 16. PW-7 Pawanjit has stated that there is no residential house at Himgiri near Govt. Senior Secondary School. There is no evidence that at the time of actual recovery, PW-7 Pawanjit was available in the shop. The recovery was made at about 6.15 p.m.. PW-7 Pawanjit deposed that police came in his shop at about 8-9 p.m. and demanded the scale and weights from him. Thus, it cannot be said that independent witnesses were available at the place when recovery was made. 17. In State of Himachal Pradesh vs. Ivor Fleitcher and another 2005 (2) Shimla Law Cases 431 non-association of the independent witnesses at the time of search was not found fatal to the prosecution case. It was held that non-association of independent witness does not affect the recovery. In State of Himachal Pradesh vs. Delu Ram Latest HLJ 2008 (HP) 882, it 9 has been held that Section 100 Cr.P.C. is applicable only in case of search of closed places. It will not apply when the search was made from a bag which the accused was carrying. In Jauni Ram vs. State of H.P. 2005 (1) S.L.J. 186 the Division Bench has held that non-association or non-joining of the independent witness in search operation will not ipso-facto fatal to the prosecution case. In the present case independent witnesses were not available at the spot and, therefore, it cannot be said that recovery of contraband is vitiated for not associating independent witnesses at the time of recovery made from the bag of the appellant. 18. It has been argued by learned counsel for the appellant that NCB form was not filled at the time of recovery. PW-8 HC Deepak Kumar has stated that NCB forms were filled in at the spot. In NCB form Ex.PW-8/A columns relating to him were filled in by him at the spot and other columns of NCB forms were filled in by him at the direction of SHO at Police Station. It has been argued that NCB form does not bear seal impression. Simply because NCB form Ex.PW-8/A does not bear the seal impression ‘D’ its evidentiary value cannot be ignored when it has been otherwise proved that this NCB form was duly filled in at the relevant time. Thus the contention of learned counsel for the appellant regarding non-filling of NCB forms at the relevant time is rejected. 19. It has been submitted on behalf of the appellant that as per prosecution case the recovery of the contraband was made from the bag of the appellant and the contraband was in the form of 10 sticks and balls. PW-1 C. Ajay Kumar has stated that samples were drawn after mixing the contents from Batties (sticks). PW-2 SPO Tek Chand has also stated that samples were drawn by H.C. Deepak Kumar from Batties (sticks). It has not been proved what was the weight of contraband separately in the form of sticks and balls. 20. The samples were taken from sticks only. It has not come on record what was the weight of contraband in the form of sticks from which the samples were drawn. The samples were not drawn after homogenously mixing charas in the form of sticks and balls. One sample weighing 23.622 grams as per report Ex.PX was analyzed by the Chemical Examiner. The learned counsel for the appellant on the basis of Krishan Chand vs. State of H.P. Latest HLJ 2009 (HP) 890 has submitted that in the present case at the most, it can be said that the appellant was carrying 23.622 grams of contraband which was recovered from him. In Krishan Chand (supra) Gaunter Edwin Kircher vs. State of Goa, AIR 1993 SC 1456 has been noticed. On the basis of material on record, it cannot be said that rest of the material recovered from the appellant was also Charas. In report Ex.PX in sample of 23.622 grams quantity of resin 20.07% weight-in-weight was found and rest of the contraband allegedly recovered from the appellant was not proved to be mixture of cannabis and Charas. The stuff which was not sent for chemical analysis cannot be said to be Charas. In Dharam Pal vs. State of H.P. 2008 (1) Crimes 337 (HP), it has been held that quantity of resin found in the stuff can be said to be 11 Charas and not the whole quantity recovered. In view of Dharam Pal (supra) and Krishan Chand (supra) the quantity of Charas proved to have been recovered from the conscious possession of the appellant comes to 23.622 x 20.07/100 = 4.74 grams, which is small quantity. 21. After having established that appellant was in possession of 4.74 grams of charas, he cannot be convicted and sentenced under Section 20 (b) (ii) (B) of the Act but he is to be convicted and sentenced for commission of offence punishable under Section 20 (b) (ii) (A) of the Act for which maximum punishment provided is six months and fine not exceeding ` 10,000/-. The appeal is partly allowed. The judgment of conviction and sentence dated 4.11.2009 is modified. The appellant/accused is convicted for commission of offence punishable under Section 20 (b) (ii) (A) of the Act and is sentenced to undergo rigorous imprisonment for six months and to pay fine of ` 10,000/-. In default of payment of fine, he shall undergo rigorous imprisonment for one month. The appellant/accused has already undergone the sentence now imposed including the sentence of one month in default of fine, therefore, appellant/accused is ordered to be released immediately in case he is not required in any other offence. April 13, 2011 ( Kuldip Singh ), (GR) Judge.