IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal Nos.612 of 1996 and 153 of 1998 Decided on: June 23, 2008. Cr.A. No.612 of 1996 Jens Astrup …Appellant Versus State of Himachal Pradesh …Respondent Cr.A No. 153 of 1998 State of Himachal Pradesh …Appellant Versus Jens Astrup …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 : None in appeal No.612 of 1996 and Mr. P.K. Sharma, Addl. Advocate General in appeal No.153 of 1998. For the Respondent : Mr. P.K. Sharma, Additional Advocate General in appeal No.612 of 1996 and none in appeal No.153 of 1998. Surjit Singh, Judge (oral) These two appeals, one by the State of Himachal Pradesh and the other by Mr. Jens Astrup, are directed against the same judgment, i.e. judgment dated 30.11.1996 of Sessions Court, Kullu, whereby Mr. Jens Astrup, who was tried for offences, under Section 20 of the Drugs and Psychotropic Substances Act, 1985, Section 14 of the Foreigners Act and Section 419 IPC, has been convicted for the later mentioned Whether reporters of the local papers may be allowed to see the judgment? …2… two offences and sentenced to undergo five years rigorous imprisonment and pay fine of Rs.3000/, in respect of offence, under Section 14 of the Foreigners Act and to undergo three years rigorous imprisonment and pay fine of Rs.1000/, in respect of offence, under Section 419 IPC, but has been acquitted of the offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. 2. Mr. Jens Astrup, hereinafter called accused, has appealed against his conviction and sentence for the aforesaid two offences, while the State has appealed against his acquittal, in respect of offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. Case of the prosecution, as it emerges from the record, is like this. Accused Jens Astrup was apprehended on 1.1.1996 at Manikaran. On seeing the police, he tried to run away. Police official, namely PW-9 HC Bhagi Rath, suspected that he was carrying some contraband with him. So, he told him that it was intended to search his person and he had a right to be searched in the presence of a Magistrate or a gazetted officer of any of the notified departments and in case he so desired, his search could be conducted in the presence of a Magistrate or such gazetted officer. Appellant opted for being searched in the presence of Judicial Magistrate. He was taken to PW-2 Shri J.L. Chauhan, Additional Chief Judicial Magistrate, Kullu and his rucksack was searched. On search 75 grams Charas was recovered. Two samples, each weighing 25 grams, were separated. The samples and the bulk Charas …3… were made into three separate parcels. All the parcels were sealed with a seal that produced the impression of English letter ‘T’. The samples were handed over to PW-9 HC Bhagi Rath, who produced the same to PW-7 Kuldip Chand Rana, the then SHO, Police Station, Kullu. The three parcels were resealed by PW-7 SHO Kuldip Chand Rana with his own seal that produced the impression of English letter ‘S’. The parcels were then deposited with PW-4 Kanshi Ram, MHC. He was officiating as stop gap MHC those days. So, on joining of duty by PW-5 Sato Kumar, the regular MHC, he (PW4 Kanshi Ram) handed over the three parcels to him. One sample parcel was sent to Chemical Examiner, who vide report Ext.PW7/A, gave the opinion that the contents of the sample contained Charas. 4. Appellant was not possessing any passport for being in India, even though he is not an Indian citizen, but a Denmark national. He also disclosed to PW-9 HC Bhagi Rath that he was a French national and his name was Hens Anderson. So, the accused in addition to being charged with offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, was charged with offences, under Section 14 of the Foreigners Act and 419 of the Indian Penal Code. 5. Accused is though represented by a counsel, but nobody has appeared for him. Initially, he had engaged a local lawyer as his counsel. Later on, he engaged some counsel from Jallandhar. Notice of actual date of hearing was sent to that counsel of Jallandhar, but neither the notice has …4… been received back nor has anybody appeared to represent the accused. 6. We have gone through the evidence and heard the learned Additional Advocate General. 7. First we take up the appeal filed by the State. We find from the record that the sample parcel, which was sent to the Chemical Examiner for analysis, was sealed with only one seal and the seal impressions on that parcel were of letter ‘S’ of English alphabet, per testimony of PW-5 MHC Sato Kumar. The witness very categorically stated that the parcel, which he sent to the Chemical Examiner, through PW-3 Constable Mahant Ram, bore seal impressions ‘S’. PW-3 Constable Mahant Ram did not testify as to what were the seal impressions on the sample parcel which he carried to the Chemical Examiner. The two sample of the stuff, allegedly recovered from the appellant, were sealed twice with two different seals. Initially the parcels were sealed by PW-2 Shri Jia Lal Chauhan, Additional Chief Judicial Magistrate, with his own seal and the impression of the seal was letter ‘T’ of English alphabet. The parcels were handed over to PW-9 HC Bhagi Rath, who handed over the same to PW-7 SHO Kuldip Chand Rana. According to the testimony of PW-7 Kuldip Chand Rana he affixed his own seal, which produced impression of English letter ‘S’ on all the three parcels. That means, the sample parcels were supposed to be sealed with two seals, having impressions of letters ‘T’ and ‘S’ of English alphabet. However, PW-5 MHC Sato Kumar, as already noticed, stated …5… that he sent a parcel, bearing impressions of only one seal, which read like letter ‘S’ of English alphabet. In these circumstances, it cannot be said to have been proved beyond reasonable doubt that the sample which was sent to the Chemical Examiner, was of the stuff allegedly recovered from the accused. So, his acquittal for the offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, is upheld and the appeal filed by the State is dismissed. 8. So far as the appeal filed by the accused is concerned, we are of the considered view that the ingredients of the offence of cheating by impersonation are not there. It is nobody’s case that the appellant by disclosing a name different from his actual name or disclosing his nationality different from his actual nationality cheated anybody nor is it the case of the prosecution that anybody was cheated by the aforesaid misrepresentation of the accused. So, the charge, under Section 419 IPC, is not sustainable. The appeal of accused Jens Astrup, to the aforesaid extent, is, therefore, accepted. 9. Evidence on record conclusively proves that the accused was not having any valid passport when he was apprehended by PW-9 HC Bhagi Rath at Manikaran. He is a citizen of Denmark. Admittedly, he is not a citizen of India. In fact, he did not have any passport to be in India, at the time when he was apprehended. Passport was issued by the Embassy of his country in his favour on 19.1.1996, that is to say, after he was apprehended on 1.1.1996. The fact is borne …6… out from the copy of passport Ext.DW1/A, which the accused himself proved. 10. Therefore, no fault can be found with his conviction for the offence, under Section 14 of the Foreigners Act. 11. Maximum sentence prescribed for offence, under Section 14 of the said Act, is five years imprisonment. Trial Court has imposed the maximum sentence. We feel that looking to the facts and the circumstances of the case, the sentence awarded by the trial Court is too severe, for the offence committed by the accused. Accused remained in custody for 1 year, 2 months and 25 days, before he was released under the orders dated 28.2.1997 of this Court suspending his sentence. We are of the view that the period of detention already undergone by the accused, i.e. 1 years, 2 months and 25 days is enough punishment as sentence of substantive imprisonment. 12. As a result of the above discussion, we partly accept the appeal filed by accused and set aside his conviction and sentence for the offence, under Section 419 IPC. His conviction for the offence, under Section 14 of the Foreigners Act is upheld. However, the sentence of substantive imprisonment of five years, awarded by the trial Court, is reduced to the detention already undergone by him. 13. Both the appeals stand disposed of. ( Surjit Singh ), J. June 23, 2008, (ss) ( Surinder Singh ), J.