IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA (1) Criminal Appeal No. 666 of 1996 AND (2) Criminal Appeal No. 185 of 1997 Judgment reserved on 25.6.2008 Date of decision: 16.7.2008 (1) Hari Singh …Appellant. Versus State of H.P. …Respondent. (2) State of H.P. …. Appellant Versus Hari Singh …… Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes For the appellant Mr. Vinay Thakur, Advocate (in Cr.A. No. 666 of 1996) & Mr. P.M. Negi, Deputy Advocate General (in Cr.A. No. 185 of 1997). For respondent : Mr. P.M. Negi, Deputy Advocate General (in Cr.A. No. 666 of 1996) & Mr. Vinay Thakur, Advocate (in Cr.A. No. 185 of 1997). Surjit Singh, Judge These two appeals are directed against the same judgment of the trial Court and are, therefore, being disposed of by a common judgment. Appeal No. 185 of 1997 has been filed by the State assailing that part of the judgment of the learned Sessions Court, whereby respondent Hari Singh has been acquitted of charge Whether reporters of the local papers may be allowed to see the judgment? …2… under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, while Appeal No. 666 of 1996 has been filed by Hari Singh (respondent in Appeal No. 185 of 1997) against that part of the same judgment, whereby he has been convicted of offence under Section 44 (a) (iii) read with Section 51 of the Wild Life (Protection) Act, 1972 and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.15,000/-; in default of payment of fine to undergo rigorous imprisonment for a further period of one year. 2. We may first notice the prosecution version, as per evidence on record. On 13.2.1996 flying squad of Forest Department, comprising Chharing Angrup, D.F.O. Flying Squad, Sundernagar; PW-7 H.S. Dogra, D.F.O. Kullu; B.R. Negi, Range Officer, Bhunter; Amar Singh, Range Officer, Flying Squad; Hari Singh, Deputy Ranger, Flying Squad; PW-5 Vishwa Dev, Deputy Ranger, Manali and PW-1 Bhupinder Kumar, Forest Guard, approached S.H.O. Police Station, Manali, PW-11 Jagat Ram, S.I. to accompany them for intercepting vehicles as they had some secret information that a man was trying to smuggle skins of leopards and other wild animals from Manali side and that that person, as per said secret information, also had some contraband like ‘Charas’, which too was going to be smuggled by him. S.I. Jagat Ram (PW-11) joined the above-named police officials. The party went in search of the suspect, but could not catch hold of him. Late in the night the party dispersed with an understanding that the police officials would meet the Forest officials around 7.15 a.m., on the next following day, near Picadaly Hotel. Police officials stayed that night in the Forest …3… Rest House. As per understanding, the Forest officials, proceeded towards Picadaly Hotel in the morning. They started from the Rest House in a vehicle of the Department, but deboarded it at some distance from Picadaly Hotel and proceeded on foot towards that hotel. In the meanwhile, S.I. Jagat Ram, accompanied by ASI Baldev Singh, HC Shambhu Ram and constable Narinder was also seen coming towards Picadaly Hotel, from police station side. When the parties of police officials and the Forest officials came closer to each other, near the gate of Picadaly Hotel, gypsy No. HP-02-0511 came from Manali Bazar side and it entered the gate of Picadaly Hotel. Hari Singh, appellant in Appeal No. 666 of 1996, hereinafter called accused, alighted from that gypsy with two bags and on seeing the police, started moving at faster pace towards the hotel building. This aroused suspicion of the police officials. They over- powered him. Zip of one of the two bags, being carried by the accused, was partly open and through that opening a part skin of leopard was visible. On search of that bag, one skin of leopard was recovered. Second bag was also searched. On the top there was a leopard skin. Under that skin there was one plastic bag which contained six polythene packets. In those packets there was ‘Charas’ in the shape of sticks. Under that plastic bag, containing ‘Charas’, there was another leopard skin, one wild cat skin and one Bansaka skin. All the five skins Exts. P-3 to P-7 were taken into possession. The ‘Charas’ was weighed. It was found to be 4 Kgs. Two samples, each weighing 50 grams, were separated. The samples and the bulk ‘Charas’ were made into three separate …4… parcels and the parcels were sealed with a seal that produced impression of English letter ‘H’. NCB form was filled in. The bags Exts. P-8 and P-9 containing ‘Charas’ and the animal skins Exts. P-3 to P-7 were also taken into possession. Case property was deposited with MHC PW-3 Sita Ram on the same day. He sent one of the two sample parcels, along-with the NCB form and specimen impression of the seal, to the Chemical Examiner, who gave the opinion, vide report Ext. PW-10/A, that the sample contained 33.60 per cent resin and tested positive for cystolithic hair presence, beam’s alkaline presence and bouqet’s presence and, therefore, it contained contents of ‘Charas’. 3. Trial Court charged the accused with offences under Section 20 of the Narcotic Drugs & Psychotropic Substances Act and Section 44 (a) (iii) /51 of the Wild Life Protection Act. 4. Prosecution examined three officials of the Forest Department and one official of the Police Department to bring the charge home to the accused. They were PW-1 Bhupinder Kumar, Forest Guard Manali; PW-5 Vishwa Dev, Deputy Ranger, Flying Squad; PW-7 H.S. Dogra, D.F.O. Kullu and PW-11 S.I. Jagat Ram. No independent witness had been associated by the officials of the Forest Department and Police Department, at the time of search of the bags of the accused and, therefore, there is no local and independent witness in the case. 5. Accused in his statement, under Section 313 of the Criminal Procedure Code, denied that the two bags, from which animal skins and ‘Charas’ were recovered, belonged to him. He …5… took the plea that the bags belonged to some other person, who ran away, on seeing the police people and the police then planted the two bags and their contents on him. 6. Trial Court believed the prosecution version that the accused was carrying two bags and from those bags five skins of wild animals and ‘Charas’ were recovered. However, it held that since PW-11 S.I. Jagat Ram had been informed, on the previous evening that a smuggler was planning to smuggle out ‘Charas’ along-with animal skins but he (S.I. Jagat Ram) did not reduce that information into writing, there was violation of mandatory provision of Section 42 (1) of the Narcotic Drugs & Psychotropic Substances Act and consequently acquitted the accused of charge under Section 20 of the Narcotic Drugs & Psychotropic Substances Act. However, the trial Court convicted the accused of offence under Section 44 (a) (iii) of the Wild Life (Protection) Act, 1972 and sentenced him to undergo rigorous imprisonment for three years and to pay fine of Rs.15,000/-. 7. Accused is aggrieved by the order of his conviction and sentence for offence under the Wild Life (Protection) Act. State is aggrieved by the acquittal of the accused for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act. 8. Prosecution examined PW-1 Bhupinder Kumar, Forest Guard, Manali; PW-5 Vishwa Dev, Deputy Ranger, Flying Squad; PW-7 H.S. Dogra, D.F.O. Kullu and PW-11 S.I. Jagat Ram to prove the allegation of apprehension of the accused with two bags containing ‘Charas’ and wild animal skins in the compound of …6… Picadaly Hotel and the search of those two bags and the recovery of five wild animal skins and 4 Kgs. ‘Charas’. All of them stated in no uncertain terms that within their view a gypsy, bearing registration No. HP-02-0511, came from Manali Bazar side and stopped near the gate of Picadaly Hotel and the accused alighted from that gypsy with two bags in his hands and on seeing the police, got unnerved and started moving faster towards the building of Picadaly Hotel. They have stated that he was over-powered in the compound of the said hotel. All of them have stated that zip of one of the two bags was open at one end and through the opening they could see a leopard skin in that bag. They have stated that both the bags were searched and from one bag only one leopard skin was recovered and on opening the other bag, first a leopard skin was taken out and then there was a plastic bag containing ‘Charas’ in six polythene packets and under that plastic bag there were four other skins – one of leopard, two of wild cats and one of Bansaka. They have stated that ‘Charas’, on being weighed, was found to be 4.00 Kgs. and out of it two samples, each weighing 50 grams, were separated and the samples and the bulk were made into three separate parcels and sealed with a seal that produced impression of English letter ‘H’. There does not seem to be any reason to disbelieve the testimony of these witnesses, because no contradiction, inconsistency or infirmity, worth noticing has surfaced therein. 9. Learned counsel representing the accused argued that no local independent witness had been associated by the police, even though it has come in the evidence that some witnesses were …7… present in the compound of the hotel and this fact renders the prosecution version doubtful. 10. Merely for the reason of non-association of independent witnesses, testimony of three officials of the Forest Department and one official of the Police Department cannot be disbelieved, particularly when there is no contradiction or inconsistency in their statements and also there is no allegation that the witnesses had any motive to falsely implicate the accused. Otherwise also, the accused was apprehended immediately after his alighting from the gypsy, when he tried to rush towards the building of Picadaly Hotel on seeing the police. Zip of one of the two bags, which the accused was carrying, was partly loose and through the opening, skin of leopard was visible. So immediately the Forest officials and the police officials searched his bags and found five wild animals’ skins and 4.00 Kgs. of ‘Charas’. There was hardly any time for associating or calling independent witnesses. 11. Accused, no doubt, suggested to the prosecution witnesses that the bags belonged to some other person, who gave a slip to the police, but all the witnesses denied the suggestion. Accused did not lead any evidence to prove his defence. He did not deny that he alighted from a gypsy bearing registration No. HP-02- 0511. Had the two bags been not his, he could have very easily proved it by examining the driver of the aforesaid gypsy, because testimony of the above-named four witnesses is that the accused brought the two bags containing wild animals’ skins and ‘Charas’ upto the gate of Picadaly Hotel in the said gypsy. He could have …8… summoned the driver of that gypsy to get it testified that the accused was not carrying any bag, when he travelled by his gypsy. 12. For the foregoing reasons, we uphold the conviction of the accused for the offence under Section 44 (a) (iii) / 51 of the Wild Life (Protection) Act, 1972. However, we find that the sentence of imprisonment awarded by the trial Court in default of payment of fine is contrary to the provision of Section 30 of the Criminal Procedure Code, which says that the maximum sentence of imprisonment that can be awarded in default of payment of fine is one-fourth of the sentence of substantive imprisonment prescribed for such offence. Maximum sentence prescribed for the offence is three years. Trial Court has awarded one year imprisonment in default of payment of fine of Rs.15,000/-, which is in excess of the maximum limit fixed under Section 30 of the Criminal Procedure Code. So, the sentence in default of payment of fine is required to be reduced and we reduce it to six months. With this modification in the sentence awarded by the trial Court for the offence under the Wild Life (Protection) Act, 1972, Appeal No. 666 of 1996, filed by accused Hari Singh, is dismissed. 13. As regards the State Appeal No. 185 of 1997, against the acquittal of the accused for the charge under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, the only ground on which the accused has been acquitted is non-compliance of mandatory provisions of Sections 42 and Section 50 of the Narcotic Drugs & Psychotropic Substances Act. …9… 14. View taken by the learned trial Court with regard to the provision of Section 50 of the Act is not correct. Section 50 of the Act comes into play only when the person of an accused is to be searched and not otherwise. In the present case it was not the person of the accused that was searched but the two bags, which he was carrying and it was from one of those bags that ‘Charas’ along- with the skins of wild animals was recovered. 15. Trial Court’s finding about non-compliance of the mandatory provision of Section 42 (1) of the Narcotic Drugs & Psychotropic Substances Act is also not correct. Section 42 of the Act applies where search is to be effected in any building, conveyance or enclosed place, as is clear from a bare reading of the provision. If a person with contraband is present in a public place, it is not Section 42, but Section 43 of the Act, which would be attracted for search and seizure of such contraband. In this view of the matter, we find support from a judgment of the Hon’ble Supreme Court in State of Harayana vs. Jarnail Singh and others, (2004) 5 SCC 188. 16. For the foregoing reasons, we are clear in our mind that the trial Court has fallen in grave error in acquitting the accused of the charge under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, despite its having returned the finding that ‘Charas’ was recovered from one of the bags, which the accused was carrying. Consequently Appeal No. 185 of 1997, filed by the State, is accepted and the acquittal of the accused for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act is …10… set aside. He is convicted of the said offence. He be produced in person on 31.7.2008 for being heard on the quantum of sentence. ( Surjit Singh ) Judge July 16, 2008 (BC) ( Surinder Singh ) Judge …11… IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 185 of 1997 Judgment reserved on 25.6.2008 Date of decision: 16.7.2008 State of H.P. …. Appellant Versus Hari Singh …… Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?2 For the appellant Mr. P.M. Negi, Deputy Advocate General For respondent : Mr. Vinay Thakur, Advocate Surjit Singh, Judge For judgment, see judgment rendered in Cr.A. No. 666 of 1996 (Hari Singh versus State of H.P.). ( Surjit Singh ) Judge July 16, 2008 (BC) ( Surinder Singh ) Judge Whether reporters of the local papers may be allowed to see the judgment?