IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 795 of 2008 Reserved on: 02.04.2009 Date of decision: 08.04.2009 Jasvinder Singh ….... Appellant Versus State of H.P. …..… Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 For the appellant: Mr. Suneel Awasthi, Advocate. For the respondent: Mr. Rajesh Mandhotra, Deputy Advocate General. Per V.K. Ahuja , (Judge) This is an appeal under Section 36 B of the Narcotics Drugs and Psychotropic Substances Act, 1985 filed by the appellant against the judgment of the Court of learned Additional Sessions Judge, Mandi, dated 29.12.2004, vide which the appellant was held guilty under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as “the N.D.P.S. Act” ) and was convicted and sentenced to rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo imprisonment for a period of six months. 1Whether reporters of Local Papers may be allowed to see the judgment? 2 2. The prosecution story in brief is that on 12.07.2003, PW-11, HC Lal Chand alongwith PW-1 HC Parkash Chand, HHC Roshan Lal, HHC Balwant and Constable Jagat Ram went in a taxi being driven by PW-2 Narad Thakur. It was the further case of the prosecution that at about 4.00 P.M. a bus of Gupta Bus Service bearing No. HP-33-5675 came from Kullu side which was going to Durgapur was stopped for traffic checking. It was the further story of the prosecution that PW-11 HC Lal Chand noticed that one person was sitting alone on seats No. 25 and 26 and on seeing the police party, he got perplexed. On enquiry, he gave his name as Jasvinder Singh. The appellant had kept one bag in front of his legs. PW-11 HC Lal Chand gave personal search to the appellant in presence of PW-2 Narad Thakur and others and on checking of the bag, ‘charas’ in the shape of billet and sticks was recovered in a polythene bag kept inside the legs. On weighment, it was found to be 1 kg 600 grams. Two samples of 25 grams each, were taken out of the same and the remaining ‘charas’ was sealed separately. PW-11 HC Lal Chand completed the formalities and on analysis, the contents were to be found to be ‘charas’. On completion of the investigation, challan was filed as against the appellant before the Court and the case was assigned to the learned trial Court, as detailed above, leading to his conviction and sentence. 3. We have heard the learned counsel for the parties and have gone through the record of the case. The learned counsel for the appellant during the course of arguments, has not confined his arguments to any other point except that keeping in view the 3 decision of a Division Bench of this Court in Dharampal’s Case, the quantity of ‘charas’ recovered cannot be said to be 1 kg 600 grams as the percentage of the resin found in the sample was less. Thus, it was submitted that the sentence imposed by the learned trial Court is excessive keeping in view the quantity of resin found in the ‘charas’. Thus, it was submitted that since the trial court had convicted and sentenced the appellant taking the quantity as 1 kg 600 grams and resin content was 33.24% and, therefore, the quantity recovered can be said to be 1/3rd which is 533.33 grams and as such, it was submitted that this Court should take a lenient view and reduce the sentence accordingly. 4. Before we consider the plea raised by the learned counsel for the appellant, we may point out that there is statement of the Investigating Officer PW-11, HC Lal Chand, who apprehended the appellant sitting on seats No. 25 & 26 and gave personal search to the appellant vide Ex. PA. He also recovered polythene bag inside the bag and on weighment, the contents were found to be 1 kg 600 grams. He took samples of 25 grams each and sealed them with seal ‘T’. He gave the seal to PW-2 Narad Thakur, who filled in NCB form and prepared recovery memo, site plan and other documents at the spot. He also prepared arrest memo and the case property was produced before Additional S.H.O. Mast Ram, who re-sealed the parcel with seal ‘O’ and the parcel with seal were deposited with HHC Badlev. He also prepared special report Ex. PG and submitted the same to the S.P. Mandi. The photocopy has been 4 proved as PW-11/E. He also identified parcel Ext. P-1 and P-2 as well as polythene bag. 5. The statement made by PW-11 HC Lal Chand has been materially corroborated from the statement of PW-1 HC Parkash Chand, who was also accompanying the Investigating Officer PW- 11, HC Lal Chand. There are no contradictions in the statements of these witnesses and they have materially corroborated the statement of Investigating Officer. PW-2 Narad Thakur, the driver/owner of the taxi, in which police officials had gone, had resiled from his statement and has not supported the prosecution story. The driver of the bus only stated that the bus was stopped and the appellant was also sitting in the bus. However, he stated that no recovery of ‘charas’ was made in his presence. PW-4, Naresh Kumar had only given weight and scale to the police officials on that date who returned the same after some time. PW-5 Sunil Kumar Additional SP had received the Special Report in this case as Ex. PG at his residence which was endorsed by him. PW-6 Sant Ram, Assistant Reader to Dy. S.P. had received the Special Report from the Additional S.P. which was given to him. This Special Report had been taken by PW-7 Balwinder Singh, Constable who delivered the same. PW-8, HHC Mohan Lal was the Additional MHC, who received the case property and sent the sample to the Office of the Chemical Examiner. PW-9, Additional MHC Baldev Singh, had received case property. PW-10, Sub Inspector Mast Ram had re-sealed the case property. 5 6. On appraisal of the above evidence led by the prosecution, it is clear that there are no material contradictions or infirmities in the statements of the prosecution witnesses. It is also clear from the perusal of the evidence that Investigating Officer had complied with the mandatory provisions of the Act and had effected the recoveries. The mere fact that taxi driver PW-2 Narad Thakur or the driver of the bus namely PW-3, Inder Singh had not supported the prosecution story fully in regard to the recovery of ‘charas’ does not affect the testimony of Investigating Officer and other witnesses, referred to above. The reason being that there is nothing to show that the Police Officers had animus or ill-will against the appellant so as to falsely implicate him. The testimony of these witnesses were also not challenged during the course of arguments. We, accordingly hold that the findings of the learned trial Court holding the appellant guilty under Section 20 of the NDPS Act are liable to be affirmed which are affirmed accordingly. 7. The only question left which was raised during the course of arguments is the effect of Judgment in Dharam Pal Vs. State of H.P., Latest HLJ 2007 (HP) 827 on which reliance was placed A perusal of this judgment shows that a question was raised before the Division Bench that in case the percentage of resin found in the content of ‘charas’ is less than the recovered ‘charas’, the quantity of resin found can be said to be ‘charas’ and not the whole quantity recovered from possession of the accused. Accordingly, it was held that the sentence has to be imposed keeping in view the quantity of resin found in the total quantity of 6 ‘charas’ recovered from the possession of the accused. A perusal of the said judgment of the Division Bench shows that a similar plea was raised before the Bench and in that case the quantity of Charas recovered was 1.600 grams, but the chemical examiner on the analysis of representative of the sample of the stuff found that it contained only 28.92% resin and accordingly had referred to the term cannabis, charas, ganja etc. The Division Bench finally concluded that since the report of the chemical examiner shows that percentage of resin found was 28.92% and it was silent about the rest of the contents of the stuff which means that the entire quantity of the recovered stuff was not Charas. The Division Bench of this Court had finally concluded that only the percentage of the resign found in the substance can be termed as Charas and not the remaining substance. Once there are findings of the Division Bench about this aspect, this plea is not open to be considered before this Court which is bound by the Division Bench ruling of this Court. 8. We may refer to a decision of the Apex Court noted down by us in E.MICHEAL RAJ Vs. INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU(2008) 5 SUPREME COURT CASES 161, wherein also the incriminating article recovered was heroin and purity of heroin was 1.4% and 1.6% respectively in two samples. It was held by the Apex Court that the punishment would vary depending upon whether quantity of offending material is “small quantity”, “commercial quantity” or something in between. It was held that the intention of legislature was to levy punishment 7 based on the content of the offending drug in the mixture and not on the weight of the mixture as such. It was held that content of narcotic drug translated into weight that is relevant. Therefore, the sentence was reduced by the Apex Court in that case. 9. Applying the decision in Dharampal’s Case in which it was held that recovered stuff was Charas only to the extent of resin content found therein and accordingly, it had been concluded that since in that case the resin content found was 30.08% approximately 1/3rd, it can be concluded that the Charas recovered from the possession of the accused was 1/3rd of the total substance i.e. 533.33 grams only. However, the punishment prescribed under Section 20 of the Act remains the same since in case Charas found was above 100 grams which is above small quantity since small quantity is less than that, therefore, the conviction prescribed remains the same under clause (B) i.e. for quantity less than commercial quantity but greater than small quantity and the punishment prescribed is rigorous imprisonment for ten years or fine which may extend to one lakh rupees. The punishment awarded by the learned trial Court was rigorous imprisonment for nine years and fine to the extent of Rs.90,000/- in that case. 10. The last point raised by the learned counsel for the appellant was on the quantum of sentence and it was submitted that applying the decision of the Division Bench to the facts of the case and the fact that the Charas recovered can be said to be 533.33 grams, the substantive sentence imposed up on the appellant deserves to be reduced keeping in view the punishment prescribed. 8 11. Keeping in view the above discussion, the appeal filed by the appellant is partly accepted to this extent that the sentence awarded by the learned trial Court is reduced to rigorous imprisonment for a period of five years. The fine is also reduced to Rs.30,000/- and in default, the appellant shall undergo rigorous imprisonment for a period of six months. 12. The learned trial Court shall take steps that the appellant serves the sentence and fresh jail warrant be issued accordingly by the trial Court. The information regarding deposit of fine shall also be sent to this Court as and when the fine is realized. A copy of the judgment alongwith record be returned to the learned trial Court. (Deepak Gupta) Judge ( V. K. Ahuja) Judge April 8, 2009 (BRB) 9