IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 41/2010 Date of decision: 25.10. 2010 Nirmal Bahadur …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. Ajay Sharma, Advocate. For the respondents : Mr. J.S. Rana, Assistant Advocate General. Surinder Singh, J. (Oral) The present appeal has been directed by the convict Nirmal Bahadur against the judgment of conviction passed in Sessions trial No. 21 of 2009 decided on 27.11.2009 whereby he was sentenced to undergo imprisonment for a period of 5 years and to pay fine of `50,000/- and in default of payment of fine to further undergo simple imprisonment for a period of one year, for the commission of 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - offence punishable under Section 20 (b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’, allegedly for keeping in possession 104.475 grams of charas which is more than the “small quantity” and less than the “commercial quantity”. 2. In short, prosecution case, as emerges from the prosecution evidence can be stated thus. On 29.11.2008, PW2 S.I. Pawan Kumar accompanied by PW1 HHC jai Kishan and Constable Joginder Singh were on patrolling ahead of village Shangna, at Barsheli road in District Kullu, H.P. Around 2.30 p.m., they reached near Tegri Nullah and noticed the appellant carrying a polythene envelope in his hand. He was stopped and questioned. He disclosed his identity. The appellant also disclosed that he was residing in a tent in Tosh-forest and works as a labourer. Police asked him about the contents of the polythene envelope which he was carrying with him. On this, he disclosed that he was going to Manikarn to take holy-bath and it contained washing material. He was asked to show the - 3 - contents of the polythene bag, he got blushed and was reluctant to show. Police suspected contraband in the envelope aforesaid. It was a secluded place and no independent witness was present, thus oral consent of the appellant was taken for checking polythene bag aforesaid in the presence of other police officials present there. It was opened. It contained some black material in the shape of sticks wrapped in a polythene wrapper. On checking each recovered substance, it was found to be 250 grams charas. From the recovered stuff, two samples of 25 grams each were separated and sealed separately with seal producing the impression of English letter ‘M’. Remaining bulk was also sealed with the same seal. Its sample was taken separately. It is Ext. PA. 3. NCB forms in triplicate were filled-in and facsimile of the said seal was also affixed thereon. One of the NCB forms is Ext. PD. The case property was taken into possession vide memo Ext. PB which is signed by the witnesses as also the appellant. - 4 - 4. The appellant was apprised of the commission of the offence by him and his punishment provided under the Act. He was arrested and arrest memo Ext. PC was prepared at the spot. Thereafter ruka Ext. PE was sent for the registration of the case through PW1 HHC Jai Kishan. 5. Site plan Ext. PF of the place of recovery was also prepared. Case property was produced before PW9 ASI Jaspal Singh who was officiating as Station House Officer. He re-sealed the case property with his three seals producing the impression of English letter ‘A’. Sample of seal was also taken separately. It is Ext. PS. Thereafter he filled-up column No. 9 to 11 in the NCB forms in triplicate which is Ext. PT. The endorsement in his hand is also on Ext. PT. 6. Case property along with NCB forms in triplicate and the sample of seals were deposited by him with PW3 MHC Manoj Kumari in Police Station Kullu at 2.30 p.m. Necessary entry was made in the Malkhana Register. The extract of the Malkhana Register is Ext. PJ. - 5 - 7. On 30.11.2008 one of the samples parcel containing the seals of M and A, NCB forms in triplicate along with police docket were handed over to PW4 Constable Pritam Singh for its deposit in the Forensic Science Laboratory Junga vide RC Ext. PL. 8. Special report was also sent to the Additional S.P. on 1.12.2008 which was received by PW5 HC Nirat Singh Reader to the Additional S.P. which, according to him was handed over to Additional S.P. and its necessary entry was made in the relevant register, extract whereof is Ext. PO. 9. Sample was examined in the Laboratory. The report is Ext. PH. It tested positive for charas having 41.48% W.W. resin of cannabis plant. 10. Challan after its completion was presented in the Court for the trial of the appellant. He was charge-sheeted for the aforesaid offences to which he pleaded not guilty and claimed trial. 11. To prove its case, prosecution examined its witnesses and the appellant was also examined under Section 313 of the - 6 - Code of Criminal Procedure. His case was denial simplicitor. When called upon to enter into his defence, no evidence in defence was led by him. 12. At the end of the trial, the appellant was convicted and sentenced as aforesaid, which has been challenged by him in the instant appeal. 13. Shri Ajay Sharma, Advocate for the appellant vehemently argued that the sampling procedure was not properly conducted by the Investigating/Designated Officer which caused prejudice to the case of the appellant. Further, according to him the sentence imposed upon the appellant is too excessive. 14. Contra Shri J. S. Rana, Assistant Advocate General supported the impugned judgment of conviction and sentence. 15. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record. 16. Learned counsel for the appellant has cited the judgment of the Supreme Court rendered in Union of India versus Bal Mukund and others 2009 (3) Cri. Court - 7 - Cases 806 (SC) to support his point that the sampling, in the instant case was not proper. 17. Be it stated that in the instant case, there was only one bag to which the appellant was holding and it was on its checking, the above quantity of the contraband was recovered. It was not a case of recovery of contraband from different bags and then samples taken from each of them were mixed together then divided into two parts as it was done in Bal Mukund’s case supra. Therefore, the above judgment cited by the learned counsel is not applicable in this case. 18. PW2 S.I. Pawan Kumar categorically stated that from the recovered stuff, he separated two samples of 25 grams each and remainder was packed in the same polythene envelope which was sealed as aforesaid. The sample aforesaid, in fact were taken randomly and this has not been assailed in his cross examination in any manner. Therefore, no benefit can be given in appeal by agitating the point for the first time, that too, during the arguments, more specifically when the - 8 - sampling process has not been challenged during the trial. 19. Further, PW2 S.I. Pawan Kumar and PW1 HHC Jai Kishan both testified about the recovery of the charas from the polythene envelope to which the appellant was holding in his hand at the relevant time. Both these witnesses were subjected to meticulous cross-examination with respect to its recovery but nothing material could be extracted which could be weighed in favour of the appellant. Further, from the time of the recovery, till the sample was deposited in the Laboratory, the chain is complete. Seal on the samples were found in tact in the Laboratory which tallied with the facsimile of seal on the NCB form. 20. On examination, the resin of the cannabis plant in the sample was found to the extent of 41.79% W/W. Since the recovery of the contraband stands proved from the possession of the appellant, thus presumption has to be drawn, as per the provisions of Section 54 of the Act to which the appellant failed to count for satisfactorily. - 9 - 21. Calculating the percentage in the recovered stuff which comes to 104.475 grams is, of course a “small quantity” less than the “commercial quantity” as held by the learned trial Court. Therefore, the conviction of the appellant for the offence punishable under Section 20 (b) (ii) (B) of the Act, calls for no interference. 22. In so far as the sentence is concerned learned counsel for the appellant submitted that in view of the fact that the offensive matter was slightly more than the “small quantity”, the sentence imposed upon the appellant by the learned trial Court is excessive. 23. I have considered the above submission. Of course, the offence involving the narcotics effect the large number of people and are detrimental to the society, therefore, too much leniency cannot be shown to the offenders. However, considering the impact of such offences on the society, some sort of deterrence is also required. 24. In the instant case, quantity recovered is 104.475 grams of charas which - 10 - is slightly more than the “small quantity” therefore, the ends of justice would be met in case the substantive sentence is reduced to 1½ years (one and a half year) and a fine of ` 20,000/- (twenty thousand) instead of five years and fine of ` 50,000/- as imposed by the learned trial Court. In default of payment of fine, the appellant shall further undergo imprisonment for a period of six months. Ordered accordingly. 25. The appellant shall be entitled for pre-trial and during trial detention, set-off as per the provisions of Section 428 of the Code of Criminal Procedure. 26. The learned trial Court is directed to send the modified warrant to the Superintendent of Jail concerned in conformity with this judgment. The appeal stands partly allowed to the above extent in modification of the sentence. Send down the records. October 25, 2010 (Surinder Singh),J (cm)