IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 161 of 2010. Date of Decision: 17th September, 2010. _______________________________________________________ Hans Willam alias Bhagwan Dass ….Appellant. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Anup Chitkara, Advocate. For the respondent : Mr. J.S. Rana, Assistant Advocate General. ____________________________________________________ SURINDER SINGH, J (Oral). The appellant is U.S.A. national bearing passport No. 434652929. He challenged his conviction and sentence passed by the learned trial Court in Sessions trial No.24 of 2009, decided on 10.5.2010 for the offence punishable under Section 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’, for allegedly keeping in possession ‘non- commercial quantity’ of Charas and Ganja whereby he was sentenced to undergo rigorous imprisonment for a period of one month and to pay a fine of Rs.5,000/-, in Whether reporters of the Local papers are allowed to see the judgment? - 2 - default to further undergo simple imprisonment for a period of one month; by taking a lenient view that he had admitted his guilt unequivocally claimed that he had left using drugs confessing his guilt and finding him a repentant soul assuring to reform himself in future. 2. It is a case of unique combination of three different nationals, i.e., the appellant belonged to United States, his co-accused Durga Rishi, a Nepali and Anchal Kumar an Indian National, resident of Saharanu, Police Station and Tehsil, Shahpur, District Kangra, HP. 3. In short, the prosecution case can be stated thus. On 17.12.2008, PW9 ASI Lal Chand alongwith police Constables PW8 Rajan Kumar and Constable Vikas Kumar, proceeded on patrolling duty towards Manali bazaar and started checking the hotels, Gurdwaras and Inn (Sarai). To this effect, their departure was recorded in Police Station daily-diary Ext.PW4/A. Around 8 a.m., in the process of checking they came across hotel ‘Moonlight’. They entered its reception and enquired from its Manager PW7 Budhi Singh about the occupancy of the hotel in the presence of Kamal Kishore, Contractor. The said Manager revealed that the appellant, a foreigner was one of the occupants of a hotel room, residing there for the last about eight days, i.e. w.ef. 9.12.2008. The police checked form-C and the register of the hotel. They found the entry - 3 - of the appellant therein, regarding his name and nationality. 4. Police associated PW7 Budhi Singh and Kamal Kishore aforesaid. They knocked at the door of the room of the hotel where the appellant was staying. One Baba, i.e., Durga Rishi accused opened the door. Police noticed the appellant, and Anchal Kumar sitting on the double- bed. On being asked, they disclosed their identity. The appellant was smoking a “Chilam” (pipe). There was smoke and the smell of narcotic was emanating from the room. ASI Lal Chand immediately rendered himself to be searched by the appellant in the presence of the witnesses accompanying him, but nothing offensive was found in his possession and a memo Ext.PW7/J was prepared to this effect. Police conducted the search of the room and recovered two polythene envelopes lying on the double-bed containing Ganja, opium and Charas in the form of sticks and cuboids. Another “Chilam” was found broken from the middle nearby, which was also taken into possession. The recovered stuff was weighed separately. Ganja was found to be weighing 170 grams, whereas Charas and opium both were 25 grams each in weight. 5. Two samples each weighing five grams were separated from opium and Charas, whereas two samples - 4 - of 15 grams each were drawn from Ganja. All these, six sample parcels were wrapped and sealed separately with seal producing impression of English letter “K”. The remaining stuff out of which the samples were taken, were also packed and sealed with the same seal. N.C.B. forms, one of which is Ext.PW3/A, were filled in triplicate. The facsimiles of the seal were taken on the aforesaid forms and also on a piece of cloth Ext.PW7/H. Seal after its use was handed over to PW7 Budhi Singh. The passport of the appellant alongwith form-C, copy of the entry of the hotel-register and the case property were taken into possession vide seizure memo Ext.PW7/A. 6. Ruka Ext.PW9/A was prepared and sent through PW8 Constable Ranjan Kumar for the registration of the case, which culminated into FIR Ext.PW3/A scribed by PW3 MHC Mohinder Singh. 7. Site plan of the recovery Ext.PW9/B was prepared. The appellant and his co-accused were arrested. The grounds of arrest vide memos Ext.PW7/B to 7/D were intimated to each of them. 8. The case property and the accused persons were produced before PW2 Inspector/SHO Om Parkash. He resealed the sample parcels and also the remaining stuff, with three impressions of his seal “U”. He also filled-up column Nos.9 to 11 of the N.C.B. forms in triplicate. The - 5 - sample of seal was taken separately on a piece of cloth Ext.PW2/B and handed over the case property alongwith N.C.B. forms with both sample seals to PW3 MHC Mohinder Singh. 9. MHC Mohinder Singh (PW3) made the entry of the case property and other documents in the Malkhana register, copy whereof is Ext.PW3/B. 10. On 19.12.2008 vide RC No.204 of 2008 Ext.PW3/C MHC Mohinder Singh handed over one sample parcel of each of the stuff recovered, to PW1 Constable Manigiri for its deposit and analysis at Forensic Science Laboratory, Junga, which was handed over in the Laboratory on the same day. In proof thereof, constable took its receipt on the RC and on his return handed over to MHC Mohinder Singh aforesaid. 11. A special report Ext.PW5/A was prepared by the Investigating Officer ASI Lal Chand and handed over to Dy.S.P. Ashish Sharma on 19.12.2008. The Dy.S.P. Made his endorsement on it and handed over the same to his Reader, Constable Upender Singh and to this effect the entry is Ext.PW5/B. 12. After the test of the sample in the Laboratory, the report of analysis Ext.PW6/A was issued. The sample parcel of Charas was found to have contained resin of cannabis plant to the extent of 36.84%, sample of opium - 6 - was containing morphine to the extent of 1.02% and the sample of Ganja also tested positive. 13. On completing the investigation and on the receipt of the analysis report aforesaid, Challan was presented in the Court for the trial of the accused for the offence punishable under Sections 20, 18 and 27 of the Act. The accused persons abjured their guilt and claimed trial. 14. The prosecution examined its witnesses, to prove its case. The accused persons were also examined under Section 313 of the Code of Criminal Procedure with respect to the circumstances which were found attendant upon each of them. The case of the appellant was that the police officials were stealing his passport. The Hindi language used by them was not understandable to him. Further he did not know that the consumption of drugs was illegal in India. Since it was a small quantity, which was allegedly recovered, thus he prayed for mercy in the name of God and forbid to repeat any more in future, whereas the case of other co-accused persons was denial simplicitor. 15. The Court held that the prosecution was able to prove the recovery of Charas and Ganja and not of Opium. Thus at the end of the trial, the appellant and his co-accused were convicted as aforesaid for its - 7 - possession, but qua the appellant the trial Court had shown its sympathy keeping in view the quantity of drugs recovered and his plea full of repentance and sentenced him as aforesaid. 16. Shri Anup Chitkara, learned Counsel for the appellant vehemently argued that there has been a non- compliance of mandatory provisions of Section 42 of the Act and also that the police did not adhere to the procedure for conducting the search of the room the entry wherein was restricted and it was not a public place. This, it caused prejudice to the appellant; therefore, the trial is vitiated. He further submitted that keeping in view the stand taken by the appellant during the trial of the case the sentence imposed upon him is quite harsh, but the learned counsel did not press the other points raised in the appeal. 17. Contra, Shri J.S. Rana, learned Assistant Advocate General supported the impugned judgment of conviction and sentence. 18. I have thoughtfully examined the rival contentions of the parties and have carefully gone through the evidence on record. 19. Admittedly, the appellant was staying in the ‘Moonlight hotel’ at Manali and it stands proved that at the relevant time when the police knocked at the door - 8 - accompanied by PW7 Budhi Singh, Manager and Kamal Kishore, Contractor, the door was opened by a Baba, i.e. Durga Rishi accused. The room was emanating smell of narcotics. The appellant was smoking “Chilam” (pipe), Anchal Kumar accused was found sitting besides him on the bed. The Police Officer ASI Lal Chand in the presence of the witnesses aforesaid rendered himself checked-up to obviate any possibility of planting the drugs. Nothing was found in his possession, thereafter three packets of the narcotic aforesaid were recovered which were found lying on the double-bed. 20. On proved facts, it is quite clear that it was not a case of prior intimation; therefore, the provisions of sub section (2) of Section 42 of the Act are not applicable. Also the Police Officer aforesaid could not have obtained the warrants immediately affording a risk for the concealment of evidence or facility for the escape of an offender. Thus, he rightly rendered himself to search and thereafter affected the recovery of drugs. Thus, the requirement of obtaining the warrants before search, in the aforesaid circumstances cannot also be held to be the infraction of the above provision, sufficient enough to through out the prosecution case, in absence of any prejudice having shown by the appellant, despite the fact that a hotel room occupied by him though not a public - 9 - place, yet in the circumstances aforesaid, search is neither illegal nor its breach fatal to the prosecution case. 21. In fact a distinction must be borne in mind between a search conducted on the basis of prior information and a case where the authority comes across a case of commission of an offence under the Act accidentally or per chance. The rigour of law need not be complied with, in a case where the purpose for making search and seizure would be defeated, if strict compliance therewith is insisted upon. 22. Further, it is also equally settled that when in a case a defective search is made and the case is still at the stage of investigation and has not reached the stage of trial or conviction, it is open to the Court to take into consideration the said circumstance, as well as the legal position that, notwithstanding that the search is defective because of failure to comply with the provision as envisaged in Section 165 of the Code of Criminal Procedure, the evidence of seizure would not be inadmissible and the trial of the case would not be vitiated, provided that the search by the Police Officer is not malafide. 23. In the instant case, the police did not enter into the room of the appellant without seeking the permission of the appellant. Rather, the police associated - 10 - two witnesses in order to verify the antecedents of the appellant, who was staying there for the last about eight days, knocked at the door, which was opened by a Baba, i.e., Durga Rishi one of the accused as aforesaid and on opening the door, smell of narcotic came out from the room. Therefore, the action taken by the Police Officer thereafter also cannot be said to be an infringement of the right of privacy, more specifically when it was not objected to by its occupant(s). Therefore, in these circumstances, it cannot be said that the police had committed any breach of either of the provisions of Section 42 of the Act or Section 165 of the Code of Criminal Procedure, which would vitiate the trial. 24. Further, PW7 Budhi Singh did not support the case of the prosecution and turned hostile, but admitted his signatures on the seizure memo Ext.PW7/A and also testified his signatures and of another witness Kamal Kishore not only on the seizure memo, but also on other documents viz. Ext.PW7/B to 7/F and also on the parcels Exts.P1 to P5 and the sample of seal Ext.PW7/H. He further admitted that his statement was recorded by the police. He no where stated that his signatures were taken under terror, pressure or without free consent. He has been an educated person. After seeking permission of this Court, he was thoroughly - 11 - discredited by the learned Public Prosecutor by confronting him with the previous statement made before the police. However, to some extent his statement corroborates the case of the prosecution which corroborates the prosecution story and is not in contradiction with the statements of the official witnesses. 25. The learned trial Court held that the prosecution could not prove the recovery of Opium. Against these findings no appeal has been preferred, but the scrutiny of the evidence on record proves that the police had recovered Ganja (170 grams) which is a ‘non- commercial quantity’ and the resin contents of cannabis (Charas) was found to be 36.84% W/W, which comes 25 grams in weight in the recovered stuff. Thus, the recovery of these two items of ‘non-commercial’ quantity stands proved by PW9 ASI Lal Chand which is duly corroborated by PW8 Constable Ranjan Kumar, Both these witnesses were subjected to lengthy cross-examination on behalf of the accused persons, but nothing material could be extracted from them, which could be weighed in favour of the appellant. 26. The evidence on record proves that the case property and the accused both were produced before PW2 Inspector/SHO Om Parkash. The case property was resealed and deposited with PW3 MHC Mohinder Singh - 12 - and thereafter the samples were sent to the Forensic Science Laboratory through PW1 Constable Manigiri and they testified that so long the case property remained in their possession it remained intact and not tampered with by anybody. 27. The samples were also deposited in the Laboratory intact and as per the certificate of the Laboratory the seals on the samples were found intact and tallied with the sample of seal sent separately. Even the facsimiles of the seals were also on the N.C.B. forms which corresponded with the sample of seal. The link evidence is complete. The recovery stands proved beyond reasonable doubt. 28. Further in his statement under Section 313 of the Code of Criminal Procedure the appellant admitted the case of the prosecution in toto. Sub-section (4) of Section 313 of the Code of Code of Criminal Procedure permits that it may be taken into consideration in the enquiry or trial and can be used by the Court for proving the guilt of the accused as much as the evidence is given by a prosecution witnesses. Such a confession can be relied upon and the Court can proceed to convict the accused on its basis [See State of Maharashtra vs. R.B. Chowdhari (1967) 3 SCR 708: (AIR 1968 SC 110, Hate Singh vs. State of Madhya Bharat, 1953 Cri.L.J. 1933: (AIR 1953 SC - 13 - 468) and Narain Singh vs. State of Punjab (1963) 3 SCR 678: (1964 (1) Cri.L.J. 730), which are also relied upon in State of Maharashtra vs. Sukh Deo Singh 1992 (3] SCC 700]. The appellant admitted all the circumstances which were found attendant upon him which proves the case against him even on merits. In turn he pleaded for mercy, he was found to be a repentant soul and undertook not to indulge in drugs any more. 29. Therefore, for the aforesaid reasons, I do not find any infirmity in the conviction of the appellant which is upheld. However, keeping in view the plea taken by the appellant in his statement under Section 313 of the Code of Criminal Procedure and believing that he has been repentant and the recovery of Ganja and Charas was of a non-commercial quantity to the extent mentioned above, therefore, while maintaining the fine imposed by the learned trial Court, the substantive sentence is reduced from one month to 18 days already undergone by him. The sentence is accordingly modified to the above extent. The appeal stands partly allowed and disposed of. September 17, 2010. (Surinder Singh), J. (rc)