IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.294 of 2004 Decided on : March 8, 2011 Chande Ram alias Chander Negi …Appellant. Versus State of H.P. …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. Anoop Chitkara and Mr. Chaman Negi, Advocates. For the Respondent : Mr. P.M. Negi, Deputy Advocate General, and Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge(Oral) Appellant Chande Ram alias Chander Negi has challenged, by means of the present appeal, his conviction and sentence, for offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, as ordered by the learned Sessions Judge. Appellant has been sentenced to undergo rigorous imprisonment for 20 years and to pay a fine of `2,00,000/-, in default of payment of fine to undergo imprisonment, for a further period of five years, after having been held guilty of offence of possessing 1 quintal 7 kilograms and 500 grams Charas. 2. Prosecution’s case, which has led to the conviction and punishment of the appellant, may be Whether reporters of the local papers may be allowed to see the judgment? …2… stated. On 24th December, 2002, around 6.20 p.m., some police informer went to Police Station Manali and informed the SHO, namely Inspector Badri Singh(PW-8), that a man by the name of Chande Ram, who was residing as a tenant in the house of one Sonam Dawa (PW-1) in village Zharang (New Manali), had taken on rent one residential set in the building of Bir Singh (PW-2), where he had stored huge quantity of Charas and was doing the business of selling and purchasing Charas. He also informed that if the said premises were raided, without loss of time, huge quantity of Charas could be recovered. 3. The information was reduced into writing, in the form of an entry in the Rojnamcha, copy Ex. PW-4/A. The SHO, alongwith a number of police officials, then proceeded to the Circuit House, where Deputy Superintendent of Police, PW-7 Arvind Negi, had been staying those days. PW-8 Inspector Badri Singh carried with him a copy of the aforesaid report entered in the Rojnamcha and handed the same over to the Deputy Superintendent of Police, at the Circuit House. That copy was got entered by the Deputy Superintendent of Police, from his Reader, in the relevant Register. Copy of the entry is Ex. PW-5/C. 4. Thereafter, Deputy Superintendent of Police, accompanied by PW-8 Inspector Badri Singh and the …3… police officials, who were already with PW-8 Inspector Badri Singh, proceeded towards the house of Sonam Dawa (PW-1), where appellant Chande Ram was stated to have been residing, as a tenant. The party went to the Tea Stall of one Sohan Lal and made enquiries with him, as to where the house of Sonam Dawa (PW-1) was located. On getting information from said Sohan Lal, the party went to the house of Sonam Dawa (PW-1) and made enquiries with him. He told that Chande Ram alias Chander Negi, the present appellant, had been residing in a portion of his building, as a tenant. 5. Appellant was found present in the rented accommodation in the building of said Sonam Dawa. He was asked by PW-8 Inspector Badri Singh and PW-7 Arvind Negi, Deputy Superintendent of Police, if he had taken on rent some other accommodation, to which he replied that he had hired one set in the house of PW-2 Bir Singh. Police people then took the appellant as also PW-1 Sonam Dawa to the house of PW-2 Bir Singh. He (PW-2 Bir Singh) was present on the top floor, i.e. the second storey of his house. He was asked if any portion of his building was in occupation of the appellant, as a tenant, to which he replied in the affirmative. 6. Appellant was having a set on the middle floor of that building. He was taken to that floor, in the presence of PW-1 Sonam Dawa, PW-2 Bir Singh and was …4… required to produce the key of the set, which was locked. He produced the key. Lock was opened. Inside that set one big trunk of steel was lying. It was having buckles on both the sides. One buckle was locked. Appellant produced key of that lock, on demand by the police. 7. On opening the aforesaid trunk, three gunny bags were recovered. One bag contained four and two others three packets each, wrapped in Khaki paper. Those packets were having Charas, in the form of balls, chapattis and biscuits. One loose packet, containing similarly shaped Charas, was also recovered from inside the trunk. Also, three electronic weighing machines, one spring weighing machine and some packing material, were also found in that very room, in which trunk was lying. Twenty two samples, two from each of the eleven packets were separated, after weighing the entire recovered stuff, the total weight of which was 1 quintal 7 kilograms 500 grams. All the sample packets were made into cloth parcels and sealed with a seal that produced the impression of English letter ‘T’. Weighing machines, packing material and locks alongwith keys, were also taken into possession. Search and seizure memos Ex. PW-1/C, pertaining to Charas, Ex. PW-1/D, pertaining to locks and keys and Ex. PW-1/B, pertaining to the rest of the things, i.e. weighing machines, packing material, etc. were prepared. A written report of search and seizure …5… was also drawn, which is Ex. PW-8/C. It was sent to Moharrar Head Constable, Manali, for formal registration of the case. Case was formally registered, vide FIR Ex. PW-4/C. Case property was deposited with the Moharrar Head Constable (Malkhana). Eleven samples, representatives of the stuff recovered from each of the eleven packets, were sent to Chemical Examiner, Kandaghat, who vide report Ex. PA, opined that all the samples contained Charas. 8. On receipt of Chemical Examiner’s report, challan was filed in the Court of Sessions Judge at Kullu, alongwith the relevant papers. Learned Sessions Judge, after supplying copies of the challan and other documents to the appellant and after hearing the Public Prosecutor, as also the defence counsel, charged the appellant with offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, to which he pleaded not guilty. 9. Prosecution examined eight witnesses to prove the charge. These witnesses include PW-1 Sonam Dawa, in whose building the appellant allegedly used to live, as a tenant, PW-2 Bir Singh, in whose building the appellant had kept the seized contraband stuff and other material, PW-7 Arvind Negi, Deputy Superintendent of Police, who was a member of the party, and PW-8 Inspector Badri Singh, SHO of Police Station Manali, who carried out the …6… search and seizure. Other witnesses are police officials. They have proved copies of entries in the Rojnamcha and other record and have testified about the link between the recovered stuff and the report of the Chemical Examiner Ex.PA. 10. Appellant denied that he had taken on rent any portion of the building of PW-2 Bir Singh or that the lock of the door of any portion of that building and/or the lock of the trunk lying in the allegedly tenanted premises, in the building of PW-2 Bir Singh, had been opened with the keys produced by him. He pleaded innocence. Trial Court did not believe the defence plea and relying upon the prosecution evidence, held the appellant guilty of offence, under Sections 20 of the Narcotic Drugs and Psychotropic Substances Act and sentenced him, as aforesaid. 11. We have heard learned counsel for the appellant as also learned Deputy Advocate General, representing the State. We have also gone through the evidence. 12. We felt the need of re-examining PW-2 Bir Singh and examining one more witness, namely Amar Singh, because during the course of trial, before the learned Sessions Judge, one writing Mark-X, which we exhibited as DX, had been produced by PW-2 Bir Singh, for the first time. That writing purports to have been …7… executed by the appellant, at the time of hiring a portion of the building of PW-2 Bir Singh. His purported signature on the writing was found to be overwritten and because of that the need to re-examine PW-2 Bir Singh and also to examine Amar Singh, the alleged scribe of the writing, was felt. 13. We also felt the need to recall some other witnesses and also to examine some new witness, as Court witnesses, when learned counsel for the appellant made a submission that as per briefing by the appellant he had not produced the keys for opening the locks of the premises and the trunk and that during the course of the trial also no such keys had been produced and as a matter of fact the locks had been broken open. We required the State to produce the locks and the keys. Description of the locks, which were produced in the Court, did not match with the description of the locks, recorded in seizure memo Ex. PW-1/D and also they did not have the keys. Though there was a bunch of keys, but the keys in it were different from the keys which the appellant allegedly produced for opening the locks of the premises in the building of PW-2 Bir Singh and the trunk, which was found in the premises. That bunch of keys had, in fact, been seized from the residence of the appellant, in the building of Sonam Dawa (PW-1), after …8… the search of his tenanted set in the house of PW-2 Bir Singh. 14. The first and the foremost submission made by the learned counsel for the appellant is that the very fact that no keys were taken into possession nor any such keys were exhibited during the course of trial, proves the defence plea that neither the appellant was a tenant in any portion of building of PW-2 Bir Singh nor did he have anything to do with the contraband stuff and other articles recovered from the building of PW-2 Bir Singh. 15. It is true that the record of the trial Court does not indicate if the two locks, which were produced during the course of trial, had the keys in them, because it is only the two locks, which were exhibited alongwith various other articles, numbering about 50, but seizure memo Ex. PW-1/D, specifically, records that the two locks, when taken into possession, had the keys in them and the keys were those, which had been produced by the appellant, for opening the locks. The fact also finds mention in the report, which was sent to the Moharrar Head Constable, Police Station Manali, for formal registration of the case, from the spot. That report is Ex. PW-8/C. This report corroborates the oral testimony of PW-7 Arvind Negi, Deputy Superintendent of Police and PW-8 Inspector Badri Singh, SHO Manali, that key of the residential set in the building of PW-2 Bir Singh as also …9… the key of the lock, which was there on the trunk, had been produced by the appellant. 16. Also, there is unchallenged testimony of PW-7 Arvind Negi that when the appellant was associated in the enquiry, for the first time, at the house of PW-1 Sonam Dawa and was questioned if he had been in occupation of any other premises, as a tenant, in the town of Manali, he (the appellant) told that he had taken one residential set on rent in the building of PW-2 Bir Singh. This part of the statement of PW-7 Arvind Negi was not subjected to cross-examination, though PW-8 Inspector Badri Singh, who also testified the fact, was cross-examined, with respect to this part of his testimony. 17. It is also the submission of learned counsel for the appellant that the locks, which were produced in the Court, were different from the locks, which had been taken into possession, vide Memo Ex.PW-1/D, as their makes and description was totally different from the makes and description, as noted down in Memo Ex. PW- 1/D and the locks produced in the Court also appeared to be broken. He submits that these facts not only probabilize the defence plea, but rather prove the same to the hilt. 18. It is true that the locks, which were produced in this Court were different from the locks, which are described in Memo Ex. PW-1/D and those locks did not …10… have the keys. Also, the locks appear to have been broken open, but the Court witnesses, examined by us, have conclusively proved that the locks, which were produced in the trial Court, were different from the locks that were produced before us. Among others, we examined the Public Prosecutor, who conducted the case in the Sessions Court. He is CW-12 Shri R.L. Saini. The witness very categorically stated that the locks, which were produced in the trial Court, had keys in them and their makes and description was the same, as mentioned in seizure Memo Ex. PW-1/D. Not only this, he testified that he personally compared the locks with the description given in the said memo. We see no reason to disbelieve his testimony, especially when, in the trial Court, during the course of cross-examination of the witnesses, who had exhibited the locks, no suggestion was thrown to them that the locks were different from those described in seizure Memo Ex. PW-1/D. Not only this, such a point was not raised by the appellant even in his statement, under Section 313 of the Code of Criminal Procedure and his counsel, in the trial Court, also did not make such a submission. In the grounds of appeal also this plea is not there. 19. Another submission made on behalf of the appellant is that the evidence of tenancy, in the building of PW-2 Bir Singh, does not inspire confidence. According …11… to him, except for the bald testimony of PW-2 Bir Singh, there is no evidence that the appellant had taken any portion of his building, on rent. He submits that there were two other tenants in the building, according to PW-2 Bir Singh’s own testimony, and the prosecution could have very easily proved this allegation, by examining those tenants, had there been any grain of truth in it. It is also his submission that writing Ex. DX about the alleged tenancy saw the light of the day, for the first time, when PW-2 Bir Singh was being cross-examined by the defence. 20. We are not in agreement with the above submission of the learned counsel for the appellant. Testimony of PW-2 Bir Singh is corroborated by the testimony of PW-1 Sonam Dawa, who very categorically stated that the appellant was a tenant in the premises of PW-2 Bir Singh, though he was not aware as to how long had he been in occupation of the tenanted premises in PW-2 Bir Singh’s building. It is true that writing Ex. DX was produced, for the first time, during the course of trial, by PW-2 Bir Singh, but both PW-7 Arvind Negi, the Deputy Superintendent of Police, and PW-8 Inspector Badri Singh, have testified that PW-2 Bir Singh had told them that though there was no lease deed, yet a writing had been prepared, which he was unable to lay hand on, immediately. We see no reason to disbelieve this part of their testimony. …12… 21. It is also submitted by the learned counsel for the appellant that all the papers, as per testimony of PW- 1 Sonam Dawa and PW-2 Bir Singh, were prepared in one go, around 2.30 a.m. He says that if the documents were prepared in one go at 2.30 a.m. or say more than 6-7 hours, after the alleged search, there is every possibility of embellishment. May be that the documents were prepared in one go, as testified by the above-named two witnesses, but there does not seem to be any reason to hold, on the basis of this evidence alone, that the appellant was not in occupation of the premises, from which the contraband stuff was recovered, especially when the above discussed evidence proves that he had taken the aforesaid premises on rent from PW-2 Bir Singh and had also produced the key of the lock put on the main door of the premises as also the key of the lock put on the trunk, from which contraband stuff was recovered. 22. Learned counsel, representing the appellant, submits that the quantum of sentence is grossly on the higher side and it calls for interference. His submission is that the appellant hails from remote area of Malana, in Kullu District and was a young man of 29 years, when the recovery was effected. 23. Looking to the backwardness of the area from where the appellant comes and also his young age, we feel punishment of 20 years rigorous imprisonment, …13… awarded by the trial Court, is too harsh. So, we reduce the sentence, awarded by the trial Court, from 20 years rigorous imprisonment to 10 years rigorous imprisonment and the amount of fine from `2,00,000/- to `1,00,000/-. Imprisonment, which he shall undergo, in the event of non-payment of fine, is also reduced to one year. With this modification in the sentence part of the judgment of the trial Court, appeal is dismissed. 24. Police searched the residential tenement of the appellant in the building of PW-1 Sonam Dawa also, after recovery of contraband from his tenanted premises in the building of PW-2 Bir Singh. During the course of such search, nothing incriminating was found, but the police seized a licenced gun of the appellant. Trial Court ordered confiscation of that gun. Since the gun is, in no way, connected with the offence of which the appellant has been held guilty, the same is ordered to be released to him. 25. When it came to our notice that the locks, which were produced in the Court, were different from the locks described in Memo Ex. PW-1/D and the keys of those locks were also not there, we ordered that Registrar (Vigilance) of this Court holds an enquiry and submits report. He, after examining a number of witnesses, submitted a report, per which locks had been replaced, after the conviction of the appellant. We then summoned …14… ten persons and examined them as Court witnesses. These witnesses included the Public Prosecutor Shri R.L. Saini, reference to whose evidence has been made hereinabove, various police officials, who handled the case property in the Malkhana at Manali Police Station as also the District Malkhana at Kullu, the Naib Court in the Court of Sessions Judge, and the Daftri, who allegedly used to reseal the parcels every time the case property was produced in the Court. Testimony of these witnesses proves, beyond doubt, that the locks, which were produced in the Court, on various dates of hearing, were different from the locks, which were produced in this Court and the description of those locks matched with the description given in seizure Memo Ex. PW-1/D. Evidence of the witnesses suggests that the locks were replaced, when the case property was in District Malkhana, Kullu. 26. We direct the Director General of Police to get the matter enquired into from a senior Police Officer, not below the rank of Deputy Inspector General, for fixing the responsibility and when the responsibility is fixed, to get not only criminal case registered against the erring officials, but also to take action against them, under Departmental Rules, including Police Rules. 27. Matter being of very serious nature, we expect the Director General of Police to personally monitor the enquiry and to submit a brief report to the Court, on …15… receipt of report from the Enquiry Officer. Enquiry by the Officer, to be designated by the Director General of Police, shall be completed within three months from the date he receives the reference from the Director General of Police and the Director General of Police shall make reference to the Enquiry Officer, within 15 days from today. 28. Director General of Police may also issue necessary directions and instructions, to all concerned, to ensure that this kind of bungling does not take place, in future. Appeal stands disposed of. ( Surjit Singh ), J March 8, 2011(sd) ( Surinder Singh ), J