HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No.258 of 2003 Padam Singh @ Paddi, S/o Sri Bhummi R/o Doctorganj, Vikasnagar, Dehradun. ……Appellant Versus State. ……Respondent Mr. Vinod Sharma, Advocate for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the respondent-State. JUDGMENT Hon’ble J. C. S. Rawat, J. This is a criminal appeal filed by the appellant against the jud and order dated 31.7.2003 passed by the then Special Judge, N Act, Dehradun in Special S.T. No.22/2002, (State Vs. Padam Si Paddi) whereby the Special Judge has convicted the appella sentenced him to undergo RI for ten years and also imposed rupees one lac only under Section 8/20 of the N.D.P.S. Act. further directed that in default of payment of fine, the appellant undergo rigorous imprisonment for another period of six months. 2. The case of the prosecution, in brief, is that on 11.01.200 Naveen Chandra Semwal alongwith Constables Kripal Singh, Rashid, Mukesh, Jaiveer Singh and Anil Kumar was on a patrollin at Vikasnagar Raod, Dehradun. When the police patrolling party r near the bus stop of Lehman Hospital, they saw a person comin Herbertpur side. Seeing the police patrolling party, he started r back. On suspicion, the police patrolling party apprehended him n Herbertpur bridge at about 0910 hours. On being apprehende appellant admitted before them that he was possessing ‘charas’ bag, which he was carrying in his hand. The appellant was then in of his legal right by the police raiding party with regard to his which is to be conducted before a Magistrate or a Gazetted offic was asked whether he would like to be searched before a Magistra Gazetted officer. He replied that the police patrolling party itsel search him without calling the Gazetted officer or the Magistrate this, the bag which the appellant was holding in his hand, was sea a red coloured polythene bag was found inside it in which some like Dhoop Batti of black colour was kept and on smelling, it was to be ‘Charas’. Thereafter Constable Anil Kumar was sent to Herb for bringing weight and balance for measuring the same. On brin the same, the recovered ‘charas’ was weighed and it was found one-kilogram in weight. Out of the said recovered ‘charas’, two s of twenty-five gram each were prepared at the spot for the purp its chemical analysis and were kept in two different small p whereas rest of the ‘charas’ was kept in the same bag from which recovered. All the aforesaid substances were sealed at the spo memo of the recovered substance was also prepared at the Eventually, the accused-appellant alongwith the recovered sub was taken to the police outpost where the recovered substance ‘ was kept in the safe custody and F.I.R was lodged against the ac appellant. Thereafter, the matter was investigated by the police completing the investigation, the Investigating Officer sub chargesheet against the accused-appellant. 3. The trial court framed charge against the accused appellant Section 8/20 of the N.D.P.S. Act. The accused appellant deni charge levelled against him and claimed trial. 4. The prosecution in support of its case examined as many witnesses namely, S.I. Naveen Chand Semwal PW1, Constable Sa Pal Singh PW2, Constable Keshwanand Joshi PW3, Constable Singh PW4 & S.O. Virendra Singh PW5 who is the Investigating Of this case. 5. In the statement recorded u/s 313 Cr.P.C., the accused-ap denied all the averments made in the prosecution evidence. In s of his case, the accused-appellant adduced the evidence of Kapo DW1 who has stated in his evidence that the appellant is his unc he has been falsely implicated in this case and, indeed the fabricated a false case against him. 6. The learned trial court after appreciation of the evidence fou accused-appellant guilty under Sections 8/20 N.D.P.S. Act and co and sentenced the appellant as mentioned above. 7. I have heard learned counsel for the parties. I have also through the evidence and material on record. 8. Now, it is to be seen as to whether the accused-appella having the contraband ‘charas’ in his possession or not prosecution in support of its case examined S.I. Naveen Semwal as PW1 who is the officer of arrest and seizure on th of the incident. He has stated in his evidence that on 11.01 he was on a patrolling duty alongwith other police officials. W alongwith the police patrolling party reached near Lehman T he saw that a person was coming from the side of Vikas Seeing the police patrolling party, the person got frightene started running back. The police patrolling party followed hi eventually, apprehended him near the ‘Majaar’ (‘grave of a M saint’). After being apprehended by the police, he admitted t was having ‘charas’ in his possession. Thereafter, the patrolling party asked him whether he would like to be se before a Magistrate or a Gazetted Officer as provided und N.D.P.S Act. Upon this, the accused-appellant replied that he interested in giving the search to the Magistrate or to any Ga Officer and the police patrolling party itself could search his p Upon this, S.I. Naveen Chand Semwal PW1 got search of the the accused-appellant and found ‘charas’ in a polythene ba inside the aforesaid bag. On smelling the said substance, found to be ‘charas’. Thereafter, Constable Anil was sent to ‘weight and balance’ for weighing the said recovered ‘charas’ bringing the same, the recovered ‘charas’ was weighed and found about one kilogram in weight. Out of the said ‘charas samples of twenty-five gram each were prepared at the sp rest of the ‘charas’ was thereafter kept in the bag and the was sealed at the spot. The memo of the recovered substanc also prepared at the spot. Eventually, the accused-ap alongwith the recovered substance was then taken to the outpost where the recovered substance ‘charas’ was kept safe custody and F.I.R was lodged against the accused-app The aforesaid witness has further stated in his evidence th said ‘charas’ recovered from the possession of the ac appellant was kept in the ‘malkhana’. Constable Kripal Sing has stated in his evidence that on the date of the incident, h also a member of the police patrolling party which was head S.I. Naveen Chand Semwal PW1 and was also present at th of recovery & arrest. This witness has entirely narrate prosecution story with vivid details and has corroborate evidence of S.I. Naveen Chand Semwal PW1. 9. Constable Keshwanand Joshi PW3 has stated in his ev that on 11.01.2002, he was posted at P.O.P. Herbertpur a lodged the report with regard to the aforesaid incident at the outpost and also recorded the entry to that effect in the GD. H also proved the memo of departure of the police patrolling from the police outpost-Herbertpur at 0730 hours, which is E on record. He has also proved the entries made in the ‘mal register regarding the case property and also to the effect th samples were kept in the ‘malkhana’ from 11.01.20 16.01.2002 which were later sent for chemical examinati 17.01.2002. Thus, the safe custody of the recovered substan amply proved. 10. Constable Sahansar Pal Singh PW2 has stated in his ev that he took the aforesaid two samples of contraband ‘charas police outpost-Herbertpur and went to Vidhi Vigyan Prayog Agra for its chemical examination. On 18.01.2002, he hande the same to the Director, Vidhi Vigyan Prayogshala, Agra witness has also proved Ex.Ka-4 which is the letter written C.J.M, Dehradun to the Vidhi Vigyan Prayogshala for the ch examination of the samples. S.O. Virender Singh PW5 Investigating Officer of this case. 11. The learned counsel for the appellant did not dispu propriety or the legality of the conviction recorded by the trial On the basis of the aforesaid evidence of the prosecution witn it is now amply proved that the said recovered ‘charas’ was from the bag, which the appellant was holding in his hand time of the incident. Thus, provisions of Section 50 of the N. Act will not be attracted in this case, though the prosecutio adduced the evidence that the appellant was informed of hi right regarding his personal search which is to be conducte before a Magistrate or a Gazetted Officer as provided und N.D.P.S Act but the appellant refused for the same and sub that he may be searched by them. The evidence to this ef credible and cogent. It is also on record that Malkhana Moh been produced before the court to show the safe custody contraband ‘charas’ at the police station. Thus, it is amply p by the evidence of the prosecution that the accused-appella having the contraband ‘charas’ in his bag. It is also in the ev that the information regarding the said recovery of ‘chara forwarded to the higher officers. 12. The learned trial court has minutely scrutinized the evide all the witnesses and found them consistent and reliable. W assistance of the learned counsel for the parties, I have also through the entire evidence adduced by the prosecution but n could be elicited from their evidence by which it could be con that their testimonies are not credible and cogent. After consi the entire evidence, in toto, the trial court found the evidence implicitly truthful and reliable. 13. A complaint was moved on 18.01.2002 to the DIG, Pau to the S.S.P, Dehradun by Kapoor Dev DW1-the nephew accused-appellant, about the fact that the appellant has falsely implicated in this case and rupees eight thousan hundred which was in the possession of the appellant, was sn by the police constables. Kapoor Devi DW1 has also filed co the said complaint, which are Ex. Kha-1 & Ex. Kha-2 on r Kapoor Dev DW1 has stated in his evidence that on the date incident, his uncle/the appellant-Padam Singh came to his ho Vikas Nagar to give him eight thousand five hundred rupees he had received in compensation of a land from a contractor village. The appellant did not find him at his house. On getti information that he has gone to the fields, the appellant also to see him in the fields. When the appellant was going fro fields, two police constables met him near Herbertpur Bridg snatched rupees eight thousand five hundred from his posse The aforesaid witness has also proved his complaint letters (E 1 & Ex. Kha-2) in his evidence. If such an incident had occur would have been reported immediately to the learned Magistr to the learned Judge concerned when the accused-ap appeared before them for the remand. After this, no complai been filed against the police officials either under Section 1 Cr.P.C or before the court concerned. Thus the evidence of K Dev DW1 is not believable. Apart from this, the evidence prosecution about the recovery is totally credible and cogen learned counsel for the appellant during the course arguments did not challenge the findings recorded by the tria as far as the conviction of the appellant is concerned. 14. The learned counsel for the appellant vehemently argued tha kilogram of ‘charas’ is a commercial quantity and if it falls short kilogram, it would be lesser than the commercial quantity and if t quantity exceeds the limit of small quantity then the a apprehended for committing such an offence is liable to be punis a term not less then ten years with fine of rupees one lac. The l counsel for the appellant in support of his contentions relied up recovery memo in which it is written that at the time of the reco the said ‘charas’, it was weighed about one kilogram. He furthe my attention by showing the same fact that no exact quantity o kilogram ‘charas’ has been shown in the F.I.R. The learned Government Advocate refuted the contentions and contended th prosecution witnesses have categorically stated in their evidenc one-kilogram of ‘charas’ was recovered at the spot and it is also w at the spot. It is the prosecution case that the said recovered ‘ was kept in a bag, which the accused-appellant was holding in hi at the time of search and seizure. It has also come in the prose evidence that the said recovered ‘charas’ was kept in red pol inside the said bag. It is also pertinent to mention that wh contraband ‘charas’ was recovered from the bag of the appellant, weighed at the spot and found approximately one kilogram in we is also mentioned in the recovery memo as well as in the F.I.R t said recovered ‘charas’ was approximately one kilogram in weigh worth mentioning that under the provisions of N.D.P.S Act, cont substance of one-kilogram is the minimum limit for the com quantity. When the prosecution witnesses appeared before the they have corroborated each other on the point that the rec ‘charas’ was found one kilogram in weight. It is in the evidence t said red polythene in which the said ‘charas’ was wrapped, w weighed at the time of weighing the said ‘charas’ at the spot. If exactly one kilogram in weight, the arresting officer and the witne that time could have pointed out that it was exactly one kilog weight and they should not have written approximately one kilog recovery memo. In such circumstance, the accused-appellant is e to get the benefit out of it. If the recovered ‘charas’ was approximately one kilogram in weight as is mentioned in the F well as in the recovery memo, it can be safely held that it may below one kilogram, as such, the accused-appellant will get the thereof. In view of the above fact, the accused-appellant is guilty offence punishable under Sections 8/20 (b)-(ii)-(B) of the N.D.P and I am of the view that ends of justice will be served, if the se of five years R.I. under the aforesaid sections is awarded to the ac appellant. 15. Thus, the appeal is partly allowed. The appellant is convicted Sections 8/20 (b)-(ii)-(B) of the N.D.P.S Act and is sentenced to u R.I. for a period of five years instead of ten years as awarded by t court. The appellant shall also pay a fine of rupees twenty th only. In default of payment of fine, the appellant shall u imprisonment for another period of one and a half years. The imp judgment of the trial court is modified to the above extent accordi 16. Let the lower court record be sent back to the court conc The compliance report be submitted within a period of three month (J.C.S.Rawat, J.) Dated 18th August, 2008 V.K.