IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.555 of 2008. Decided on: May 25, 2009. _______________________________________________________ Issar Bahadur ……..Appellant. Versus State of H.P. ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Yudhbir Singh Thakur, Advocate. For the respondent : Mr. J.S. Guleria, Asstt. Advocate General. ____________________________________________________ SURINDER SINGH,J (oral) : The appellant was convicted by the learned trial court, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short “the Act” allegedly keeping in his possession 506.65 grams of Charas out of the recovery of 1.5 Kgs. substance. Accordingly, he was sentenced to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs.25,000/-, and in default of payment of fine, the appellant was further ordered to undergo simple imprisonment for a period of six months. The benefit of Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - Section 428 of the Code of Criminal Procedure was also given. The appellant has assailed his judgment of conviction and sentence passed by the learned trial court, on the grounds of his false implication and further that there has been material contradictions in the statements of the prosecution witnesses, which makes the prosecution case highly doubtful and also that PW9 Khem Raj was a stock witness as having become a witness in to other cases on the same day. I have heard the learned counsel for the parties and have reappraised the evidence on record. In brief, the prosecution case is that on 1.9.2006, information was received in police station Manali that some Nepalese were staying in “Shiva Lodge” at Manali and indulging in illicit trafficking of narcotics. This information was reduced into writing in Rapat Roznamcha, the extract of which Ext.PW1/A was sent through Constable Prem Prakash to Dy. S.P., to satisfy the compliance of Section 42(2) of the Act. - 3 - Thereafter, the police constituted a raiding party. Independent witness Khem Raj was associated along with Constable Megh Singh and LC Som Lata. The owner of the Lodge PW10 Bishambher Singh was asked about the stay of the Nepalees in his Lodge. He pointed out Room No.106 and sent his waiter Suresh Kumar along with police, who was also associated as a witness. The police knocked at the door. The appellant, who was staying in room No.106, opened the door. PW11 HC Mohan Lal disclosed his identity and the purpose of his visit to the appellant and expressed his intention to conduct his search. Thus, the appellant was asked to exercise his option whether he was willing to be searched by the police party present there or in presence of the Magistrate or a Gazetted Officer. A memo Ex.PW9/A in this regard was prepared in presence of the independent witnesses. The appellant consented to be searched by the police party. HC Mohan Lal rendered himself to search the appellant, but no incriminating article was found on the personal search of the appellant. - 4 - Thereafter, the police started the search of his room and recovered 1.5 Kgs Charas from beneath the double-bed occupied by the appellant in the direction of the pillow. The Charas was in the shape of rounds (biscuits), wrapped into a polythene bag, which was further rolled into a piece of cloth. The police separated two samples of 25 grams each from the recovered bulk, which were sealed with seal impression “T” and the remaining bulk was also sealed with the same seal. A seal impression was also separately taken on a piece of cloth. Thereafter all the three parcels were taken into possession vide memo Ex.PW9/C. NCB forms were filled in triplicate on the spot, one of such form is Ex.PW4/A. The seal was handed over to PW4 SI Roop Singh. The case property was taken into possession vide memo Ex.PW9/C in presence of the witnesses, a copy thereof was also supplied to the appellant. The appellant was arrested and grounds of arrest was also informed vide memo Ex.PW9/D. - 5 - A ruqa Ex.PW6/A was prepared and sent through PW12 Contable Megh Singh, for registration of the case. The site plan Ex.PW11/A was also prepared on the spot. The appellant and the seized quantity along with samples were produced before PW4 SI/SHO Roop Singh, who resealed the case property with seal impression “S”. Thereafter, it was handed over to MHC Hari Singh, for its deposit in the Malkhana. The special report Ex.PW3/A was sent to the Dy.S.P. Kuldip Rana. PW6 MHC Hari Singh, entered the case property in the register of Malkhana, the extract of which is Ex.PW6/D. On 3.10.2006, one sample parcel of Charas along with sample seals, NCB forms and other documents were handed over to PW5 Constable Mahinder Pal, to deposit the same in CFSL, Chandigarh vide R.C. Ex.PW5/A, which was deposited in the said laboratory and receipt Ex.PW5/B was obtained and on return handed over to PW6 aforesaid. - 6 - According to the report Ex.PA, sample so sent was found to be that of Charas. The police also recorded the statements of the witnesses under Section 161 of the Code of Criminal Procedure and thereafter the challan was presented in the court for the trial of the appellant. Finding a prima-facie case against the appellant under Section 20 of the Act, he was accordingly charge-sheeted. Appellant pleaded not guilty and claimed trial. During the trial of the case after the prosecution evidence was over, an application was moved by the accused- appellant for re-examining the second part of the sample in order to find out the percentage of the resin on which the report Ex.PA was silent. Vide order dated 27.9.2007, his request was allowed by the learned trial court and the second part of the sample was sent for its examination to FSL Junga. The report Ex.PB revealed that the sample contained 34.51 % W/W the quantity of resin. The case of the appellant under Section 313 of the Code of Criminal - 7 - Procedure was denial simplicitor. No evidence in defence was led. At the end of the trial, the learned trial court gave the benefit of the judgment of this court to the appellant, passed in Criminal Appeal No.491, dated 15.5.2007, titled Dharam Pal v. State of H.P. Thus, convicted and sentenced him for keeping in his possession intermediate quantity of Charas. On reappraisal of evidence, I find that there was prior information to the police before the raid and independent witness Suresh Kumar and PW9 Khem Raj were associated as independent witnesses. According to PW11 HC Mohan Lal, Investigating Officer during the search of the room of the appellant, the Charas weighing 1.5 kgs was recovered from beneath the double bed of the appellant, which fact has also been substantiated by PW12 Constable Megh Singh, who was accompanying him. PW9 Khem Raj has also made the similar version, but according to him, packet of Charas was found underneath the pillow of the bed. - 8 - According to the learned counsel for the appellant, this is a material contradiction and the possibility of planting a false case against the appellant cannot be ruled out because of the professional rivalry of PW9 Khem Raj with the owner of the lodge of PW10 Bishambher Singh, but unfortunately, this fact has not been suggested in the cross- examination of PW10 that both of them had a professional rivalry. Otherwise also, the recovery of such a huge substance cannot be said to be a planted one, nor the circumstances suggest that the said material was planted by the police in connivance with any of the witnesses. Even the appellant did not offer any explanation when examined under Section 313 of the Code of Criminal Procedure as to why he was implicated in the instant case. In my considered opinion, the recovery of the contraband stands fully established from the actual and conscious possession of the appellant and the contradiction aforesaid is not very - 9 - material which goes to the root of the case making it a suspect. According to the Investigating Officer when the recovery of the alleged contraband was effected, it was 1 kg.500 grams in the shape of rounds. Of course, it was not counted how many rounds were there, but PW11 stated that he separated two sample of 25 grams each from the recovered stuff. Each of the samples and the remaining bulk were sealed with the impression of English letter “T”. The case property was resealed by the SHO as aforesaid when produced before him. In Mr.Gaunter Edwin Kirchar vs. State [AIR 1993 SC 1456], the accused was arrested with two pieces of charas weighing 7 gms. and 5 gms. respectively and only one piece was sent for chemical analysis and the said piece was found to have been less than 5 gms. Considering these facts, the Supreme Court observed that from the report of the chemical analyst it could not be presumed or inferred that the substance and the other piece weighing 7 gms, which was not sent for analysis also contained Charas and it was further observed that it had to - 10 - be borne in mind that the act applied to certain Narcotic drugs and psychotropic substances and not to all kind of intoxicating substances and in any event, in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it would not be safe to hold that the prosecution could prove that 12 gms. of Charas was recovered from the accused. The Supreme Court thus held that the prosecution could prove positively that the Charas weighing about 4.57 gms. was recovered from the accused and the failure to send the other piece had given rise to that inference. The Supreme Court also noted that in order to obviate this difficulty the concerned authorities would do better if they sent the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized and if it not practicable in a given case to send the entire quantity then sufficient quantity by way of samples from each of the sticks recovered should be sent for chemical - 11 - examination under a regular Panchnama in accordance with law. Mr. Gaunter Edwin Kircher’s Judgment of the apex Court was followed by the learned single Judge of Bombay High Court (Goa Bench) in Javed Bhat V/S U.O.I. {2008(1) RCR (criminal) 57} and also by the Division Bench of the same court in Firdous Ahmed V/S U.O.I. Cr.Appeal No:66 of 2006 decided on 7.8.2007 {2008 Crl.L.J. (NOC) 1163 (Bom.)} wherein the recovery of 1.35 KG. Hashish was made from the accused comprising of numerous cigar flats and flat slabs. The sample material was taken 705 gms. randomly on analysis was positively tested. The remaining bulk was not analyzed. Thus the accused was given the benefit of doubt that the remaining bulk was not Hashish and the accused was held guilty only of 705 gms. of Hashish as having been conclusively proved, thus his conviction was altered to one under section 20(b)(ii)(B) of the Act. The above judgments have also been followed by this court in Criminal Appeal No.650 of 2008 titled Krishan Chand v. State of H.P. decided on 27th April, 2009. - 12 - As stated above, in the instant case, the prosecution could only prove beyond doubt that the appellant was found 50 grams of Charas in his possession as per the reports Exts.PA and PB, which is admittedly less than the “small-quantity”. The remaining stuff which was in the shape of rounds/ biscuits, as stated by the Investigation Officer, PW11 HC Mohan Lal and PW9 Khem Raj aforesaid was not sent for analysis, more specifically when it was not in the shape of one mass, therefore, it cannot be said as to what the remaining stuff in the shape of rounds had contained. The samples takes were not of a representative character. Once this conclusion is arrived at, it follows that the appellant cannot be convicted and sentenced under Section 20 (b) (ii) (B) of the Act but has to be convicted and sentenced for the commission of offence punishable under section 20(b) (ii) (A) of the Act for which the maximum punishment provided is Six months and fine not exceeding Rs.10,000/-. Therefore, for the aforesaid reasons, the sentence of the appellant is required - 13 - to be reduced to maximum provided for the offence under Section 20(b) (ii) (A) of the Act, i.e. i.e. Rigorous Imprisonment for a period of six months and to pay a fine of Rs.10,000/- in default to pay the fine, to further undergo simple imprisonment for a period of 2 months. Ordered accordingly. The appeal stands partly allowed. The accused appellant is in jail/detention since his arrest i.e. from Ist September, 2006 and has already under gone the sentence nearly for about two years and 08 months more than provided for the offence. Therefore, he be released forthwith if not required in any other case. The registry of this court to take necessary steps forthwith complying this judgment. Send down the records. (Surinder Singh), Judge. May 25, 2009. (Pds)