1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 416 of 2005. Date of decision: 26.6.2008. ____________________________________________________________ Lal Bahadur Appellant. Versus- State of Himachal Pradesh Respondent. ___________________________________________________________________ Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? . No. For the appellant : Mr. M.S. Guleria, Advocate. For the respondent: Mr. P.K. Sharma, Additional Advocate General. _________________________________________________________ Surjit Singh, J. (oral). Appellant is aggrieved by the judgment of Sessions Court at Kullu whereby he has been convicted of an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act and sentenced to under- go rigorous imprisonment for fourteen years and to pay a fine of rupees 1,40,000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of four years. Case of the prosecution may be summed up thus. Appellant is a Nepali National. On 13th January 2004, when PW3 Balwant Singh accompanied by PW2 HHC Hem Raj, Head Constable Om Parkash and some other police officials, was present at a place called Hurlu, falling within the area of Police Post, Manikaran in Kullu District, appellant was seen Whether reporters of the Local papers are allowed to see the judgment? 2 coming from the side of village Kasul, carrying a rucksack on his back and a tin box Exhibit-P3. He was intercepted on suspicion and in the course of checking of tin box Exhibit P3, which he was carrying, charas weighing four kg was recovered. Two samples of twenty-five grams each were separated. Samples and the bulk charas was made into three separate parcels and sealed with a seal impression which produced the impression of English letter ‘B’. NCB form was filled in. Case property was deposited with Dinesh Kumar, the then S.H.O. Police Station, Kullu, who re-sealed all the three parcels with his own seal, which produced the impression of English letter ‘H’. Specimen impressions of the seals used by PW3 S.I. Balwant Singh and PW8 Dinesh Kumar, in sealing the three parcels were taken on pieces of cloth. Three parcels along with the NCB form, in triplicate, and sample seal impressions were deposited with PW6 Jia Lal Head Constable Moharrar, Police Station, Kullu. One of the two sample parcels alongwith NCB form and specimen impressions of both the seals was sent to the Chemical Examiner by PW6 Jia Lal MHC through constable Shyam Dass (PW7). Chemical Examiner reported vide report Exhibit PA that the sample contained contents of charas because it tested positive for microscopic and beams alkaline tests and had 34.09% resin. Trial Court charged the appellant with offence, under Section 20 of the Narcotic Drugs Psychotropic Substances Act and on his pleading not guilty, proceeded to try him for the said offence. Prosecution examined Balwant Singh Sub Inspector (PW3), Om Parkash Head Constable (PW1) and Hem Raj HHC (PW2) to prove the search of the tin box Exhibit-P3, which was allegedly being carried by the appellant and the recovery of charas therefrom. To connect the report of the Chemical Examiner with the sample taken from the recovered stuff, the prosecution examined MHC Jia Lal (PW6) and Constable Shyam Dass (PW7). To prove the deposit of the case property by PW3, S.I. Balwant 3 Singh, S.H.O., the prosecution examined PW8 the then S.H.O. Police Station, Kullu. Trial Court concluded that the evidence on record conclusively proves the charge against the appellant and consequently convicted and sentenced him, as aforesaid. We have heard Shri M.S. Guleria, Advocate, representing the appellant as also Shri P.K. Sharma, Additional Advocate General and gone through the record. There does not appear to be any reason to disbelieve the testimony of PW3 S.I. Balwant Singh, PW1 Om Parkash and PW2 HHC Hem Raj, as regards the recovery of charas from tin Exhibit-P3, which the appellant was found carrying. There is no contradiction, discrepancy or inconsistency in their testimony. All of them have stated with one voice that the appellant was seen coming from the side of village Kusal around 6.00 A.M. on 13-1- 2004 and that on suspicion, the tin which he was carrying was searched and it was found to contain charas, besides some utensils and other belongings of the appellant. Learned counsel submits that the report of the Chemical Examiner Exhibit-PA does not stand connected with the sample which was allegedly taken out from the stuff recovered from the appellant. He has submitted that even though PW6 Jia Lal Head Constable has stated that samples seal impressions on pieces of cloth had been deposited with him and that he sent those sample seal impressions alongwith the sample parcel, to the Chemical Examiner, neither PW7 Constable Sham Dass, who carried the same to the chemical laboratory stated that he carried sample seal impressions to the State Laboratory, nor is there any mention of such sample seal impressions in the receipt, by the official concerned of the laboratory, on the reverse of the road certificate Exhibit PW6/B. It is true that PW7 Sham Dass Constable did not specifically say that he carried 4 specimen seal impressions, affixed on pieces of cloth, along with the sample parcel but that does not mean that he, in fact, did not carry such seal impressions. The witness categorically stated that along with the sample parcel, he carried a closed envelope, which contained some papers etc. It is quite likely that the envelope contained in addition to the papers, specimen seal impressions. Receipt furnished by the official of the Laboratory on the back of road certificate Exhibit PW6/B, which is Exhibit PW6/C, no doubt does not make mention of the specimen seal impressions, but it appears that the sample was received at the laboratory, by a semi- literate person, as we find that the receipt is not only not properly worded, but the hand-writing is also poor. We find from the perusal of the report Exhibit-PA of the Chemical Examiner that he had received the specimen impressions of the seal, separately, and compared the seal impressions affixed on the sample parcel with the same and found them tallying with each other. Not only this, there were facsimile of both the seals on the NCB form Exhibit PW3/A, below which the report Exhibit-PA of the Chemical Examiner is recorded. Had the seal impressions on the parcel been different from the facsimile appearing on Exhibit PW3/A, the Chemical Examiner ought to have noticed the same and made a mention thereof in his report. For the fore-going reasons, we see no merit in the aforesaid submission of the learned counsel for the appellant. Learned counsel has made another submission that the sentence is too harsh looking to the quantity of the charas and the financial & social status of the appellant. He submits that the appellant is a Nepali Gorkha and his belongings which were recovered along with the charas like Chakla Belna, tawa, patila, plates, tumbler indicate that his social and financial status is no better than that of a labourer. Even though the total quantity of the stuff recovered from the appellant was four kg, the report of the Chemical Examiner shows that the resin contents in it was only to the extent 5 of 34.09%. A Division Bench of this Court in Dharam pal versus State of H.P. and another (Latest HLJ 2007 (HP) 827 has held that where an accused is charged with the offence of possessing charas, the quantity of charas possessed by him is not to be taken to be the total quantity of stuff recovered from him, but only to the extent it contains resin in it. Thus, the quantity of charas which was there in the stuff recovered from the appellant, comes to 1.3636 kg. Looking to the quantity as also the social and financial status of the appellant, we are of the considered view that the appellant does not deserve to be awarded more severe punishment, than the minimum prescribed sentence for the offence of possessing commercial quantity of charas. Accordingly, we reduce his sentence from fourteen years rigorous imprisonment and a fine of rupees 1, 40,000/- to ten years rigorous imprisonment and fine of rupees one lac, in default of payment of fine to rigorous imprisonment for a further period of six months. (Surjit Singh) Judge. (Surinder Singh) Judge. June 26, 2008. (bm)