IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 64 of 2010. Judgment reserved on 22nd December, 2010. Decided on: 31st December, 2010. _______________________________________________________ Prince Sharma ….Appellant. Versus State of H.P. …..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Y.P. Sood, Advocate. For the respondent : Mr. A.K. Bansal, Additional Advocate General. ____________________________________________________ SURINDER SINGH, J. The present appeal has been directed by the appellant, feeling aggrieved and dissatisfied by the judgment of his conviction and sentence passed under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, to be referred as ‘the Act’, by the learned trial Court in Sessions Trial No.20 of 2009, decided on 1st January, 2010, whereby he has been convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of ` 25,000/- and in default Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - of payment of fine to further undergo simple imprisonment for a period of six months, allegedly for keeping in possession 1 kg. 500 grams of Charas which contained 20.45 W/W resin of ‘cannabis’ plant. 2. In short, the prosecution case, as emerges from the prosecution evidence, can be stated thus. On 9.2.2009 at about 4.10 p.m., PW8 Sub Inspector Diwan Chand, Additional SHO, Police Station, Chamba, was heading the police patrolling party consisting of Head Constable Kishori Lal, PW2 Head Constable Ramesh Kumar, Constable Rakesh Kumar and PW3 Shiv Kumar. They were present at ‘Jakiani Mor’ and noticed the appellant coming from the side of village ‘Pukhri’. On seeing the police party, he turned back and started running. He was carrying a bag with him. He was apprehended, his identity was asked and interrogated, on which he got perplexed. Thus, police entertained suspicion that he might be carrying some contraband. Thus, an option was given to him to be searched either before the Magistrate or Gazetted Officer but he gave his consent Ext.PW2/A in his own hand and under his signatures to be searched by the police party present. Thereafter SI Diwan Chand aforesaid rendered himself to be searched by the appellant, but nothing incriminating substance was found in his possession. To this effect - 3 - memo Ext.PW2/B was executed. Thereafter the said Sub- Inspector searched the bag which was in the possession of the appellant. It contained a jacket, voile of perfume and one polythene bag, which contained 1 kg. 500 grams Charas. Two samples from the recovered stuff were separated and sealed with seal impression producing the English letter ‘K’. The remaining bulk was also sealed separately with the same seal. The specimen of the seal was also separately taken on Ext.P.4. NCB forms in triplicate filled-in on the spot and facsimile on the aforesaid seal were affixed on each of them. 3. The case property was taken into possession by the police vide recovery memo Ext.PW2/C. Site plan Ext.PW8/B was prepared by the police with respect to the spot. Appellant was arrested and grounds of arrest were explained to him. 4. Ruqa Ext.PW8/A was sent through Constable Rakesh Kumar for the registration of the case, on the basis of which FIR Ext.PW1/A was registered. 5. Case property, sample seal and NCB forms in triplicate alongwith seizure memo were deposited with PW9 MHC Kailash Chand in the Police Station. To this effect an entry was made by him in the Malkhana register, extract of which is Ext.PW9/A. - 4 - 6. Special report was prepared and sent to the superior Officer within the statutory period. 7. On 11.2.2009, one sample parcel alongwith NCB form, copy of seizure memo, sample seal and FIR were sent to Forensic Science Laboratory, Junga through PW10 Constable Madan Chand, vide RC No.30 of 2009, copy of which is Ext.PW9/B. On getting the receipt on the RC aforesaid it was deposited with the MHC in the Police Station. 8. The Forensic Science Laboratory after analyzing the sample issued report Ext.PW6/A. According to them, the entire sample mass was extract of ‘cannabis’ and the sample was confirmed as Charas. 9. After completing the investigation, Challan was presented in the Court for the trial of the appellant. He was accordingly charge-sheeted for the offence punishable under Section 20 of the Act to which he pleaded not guilty and claimed trial. 10. To prove its case, the prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor. However, he pleaded innocence and alleged his false implication in the case. When called upon to enter into defence, he did not lead any evidence. At the end of trial he was convicted and - 5 - sentenced as aforesaid, for the quantity which was less than ‘commercial quantity’ but more than ‘small quantity’. 11. Shri Y.P. Sood, learned Counsel for the appellant vehemently argued that there are material contradictions in the statements of the witnesses. It was not a chance recovery and no independent witness was included during the search of the appellant. There was non-compliance of Section 55 of the Act, which has caused a dent in the prosecution case and the evidence has not been properly appreciated by the trial Court, which has caused a material prejudice to the appellant. 12. On the other hand, learned Additional Advocate General supported the impugned judgment of conviction and sentence and urged that the statements of the official witnesses are worth inspiring confidence and there was no requirement of law to include the independent witnesses at the time of search and the testimony of the official witnesses should be treated at par with the testimony of other witnesses, if found credible and trustworthy. He also ventilated that the Sub Inspector aforesaid was himself Additional SHO and there was no requirement of law to get resealed the case property from the SHO of the Police Station to - 6 - comply with Section 55 of the Act. It was also ventilated that the said provision is directory and not mandatory causing no prejudice to the appellant. The quantity in question was of such a nature that it could not have even been planted by the police for no reason or malice attributed to them. 13. I have given my thoughtful consideration to the rival contentions of the learned Counsel for the parties and have carefully, cautiously and meticulously reappraised the evidence on record. 14. PW8 Sub Inspector Diwan Chand has fully corroborated the prosecution case with respect to the recovery and sampling process. He further testified that the case property was taken into possession vide seizure memo Ext.PW2/C as stated therein. It was also deposited alongwith the requisite papers, sample seal and the NCB forms in triplicate filled-in, on the spot, with PW9 MHC Kailash Chand and one of the samples was sent for analysis to the Laboratory which tested positive for Charas. He further stated that the seal after its use was handed over to HC Kishori Lal. The appellant was also arrested on the spot and grounds of arrest were informed to him. In cross-examination he stated that the place of recovery was situated on ‘Chamba-Pukhri’ road about 14-15 kilometers from Sadar Police Station. - 7 - He further stated that some of the members of the party had left on foot while others went in the vehicle. He did not remember that during the course of patrolling how many vehicles were checked by them upto the place of recovery of contraband. He further stated that Kiani village was located at a distance of 5-7 minutes walk from Jukiani Mod. He further stated that the appellant opted to be searched by the police, as such he did not make any effort as to whether any Magistrate or Gazetted Officer was posted at or nearby place of occurrence. He admitted that where the appellant was apprehended vehicles had been passing through the said road. He also stated that the seal ‘K’ which was used for sealing the stuff, was made of iron. He denied that no option was given to the appellant as alleged and further that no recovery of Charas was effected from him. 15. PW2 HC Ramesh Kumar lent strength to his version. He identified the remaining bulk of the contraband Ext.P.1 which was produced in the Court and also bag Ext.P.2 and Charas Ext.P.9 during the trial of the case. In cross-examination he stated having left Police Station at 12.30 p.m. and reached the spot on foot. Police party checked about 8-10 vehicles on the way. They remained on the spot for about four hours and - 8 - did not remember that how many vehicles had passed through. He stated that Ruqa was sent at 5.45 p.m. through a Constable to Police Station and on his return met them in the Police Station at about 8.30/8.45 p.m. He further stated that Pukhri village is at a distance of about two kilometers from Jakiani Mod. He did not know whether any Government official was posted there. He also stated that the seal which was used to seal the case property was made of iron. He denied that no Charas was recovered from the appellant. 16. PW3 Constable Shiv Kumar also made the similar version with respect to the recovery and sampling part as stated by PW8 aforesaid. He had also left the Police Station at 12.30 p.m. and reached at Jukiani Mod at 3.30 p.m. Although, there is a variation of time with respect to the reaching on the spot, but it does not make any difference that some of the police officials came on foot from Police Station and some had used vehicle for patrolling and there is also slight discrepancy about leaving the spot of the recovery in the statements of the official witnesses. But the Investigating Officer stated that some police officials had come on foot and some had reached through vehicle, but they were on the spot when the appellant was apprehended. This witness categorically denied that no consent memo was - 9 - prepared on the spot and also that no recovery was effected from the appellant. PW1 ASI Karan Singh who was officiating SHO, stated to have received Ruqa Ext.PW1/A through Constable Rakesh Kumar and had made endorsement on it. He admitted having received it at 8.40 p.m. and after half an hour the file was sent to the Investigating Officer immediately. The case property was stated to have been deposited by PW8 aforesaid with PW9 MHC Kailash Chand on the same day alongwith other documents. Entry Ext.PW9/A was made in the Malkhana register. He further testified that the parcels were sealed with seal impression ‘K’ and on 11.2.2009 one of the samples alongwith one NCB form for its analysis, sent through PW10 Constable Madan Chand and the case property as long as remained with him remained intact and none tampered with it. 17. PW10 Constable Madan Chand testified having deposited the sample parcel alongwith relevant documents in FSL, Junga which were taken by him vide RC No.30 of 2009 Ext.PW9/B and on his return, receipt was deposited with PW9 aforesaid. 18. On the critical examination of the aforesaid evidence, it is apparent that it was not a case of prior information as alleged, but of a chance recovery. Recovery of the alleged contraband is from the bag to - 10 - which the appellant was carrying. Therefore, the mandatory provisions of Section 50 of the Act are not applicable in the instant case as held in Ajmer Singh v. State of Haryana, 2010(3) SCC 746. Further, it is also well settled by now that the provisions of Section 50 of the Act would be attracted only when the search is to be made by the person and this would not apply to the search of vehicle, container, bag or premises. Further, there is also no requirement of law to include the independent witnesses at the time of search and seizure. The non-association of the independent witnesses at the time of search of the bag of the appellant does not effect the recovery of the contraband as the provisions of Section 100(4) of the Code of Criminal Procedure are not applicable when the search is at an open place and that too from a bag to which the appellant was carrying. In this behalf, I draw strength from the judgment rendered by the Division Bench of this Court in State of H.P. v Ivor Fleitcher and another, 2005 (2) Shim.L.C. 431. 19. I am also in agreement with the submission of learned Additional Advocate General that the testimony of the official witnesses should be treated and tested like the testimony of other witnesses, if it is credible and trustworthy it can be acted upon. However, rule of - 11 - prudence demands that the Court should be cautious before putting blind reliance upon the testimony of the police officials, but if there is consistency and credibility in their statements and satisfies the test of truthfulness, there is absolutely no bar to base conviction upon their testimony. Thus, the non-inclusion of the independent witnesses itself will not throw the case of the prosecution out-rightly but it has to be examined on the basis as to what the official witnesses have testified during the trial of the case and what material to doubt their testimony has been extracted during their cross-examination. 20. On the scrutiny of the evidence of the official witnesses, I find that although there are minor and small contradictions with respect to their departure and reaching to the spot, sending of the Ruqa and receiving the file after registration of the FIR by the Investigating Officer. These are of the nature which does not shake the testimonies of the official witnesses in any manner. Rather sometimes the parrot-like version is not expected from any witness when examined in the Court. The minor contradictions are bound to occur and it bears the ring of truth. I find the consistency with respect to the recovery of the contraband from the possession of the appellant. The learned Counsel for the appellant has failed to point out even from the evidence on record - 12 - any material contradiction which could even remotely suspect of false implication of the appellant in the case. No malice has been attributed. The quantity of recovered stuff is 1Kg. 500 grams, why should the police fabricate a false case upon him remains unexplained. 21. Further, Section 55 of the Act is directory in nature and its non-compliance is not fatal to the prosecution as held by this Court in Duni Chand v. State of Himachal Pradesh, 2001 (2) Shim.L.C. 206. Even otherwise, PW8 Diwan Chand was himself the additional SHO of the same Police Station and PW1 was officiating as SHO at that time. Thus, in my opinion, there was no requirement of law that the additional SHO should have presented the case property for its resealing before PW1 aforesaid. The case property was deposited with the MHC in the Malkhana on the same day around 10.15 p.m. alongwith requisite documents and the seal impression. Thus, in these circumstances when the link evidence is complete and one of the samples sent for analysis tested positive, the irresistible conclusion is that the prosecution has been able to prove the case against the appellant in accordance with law and the appellant has failed to account for the possession of the contraband. Therefore, the statutory presumption as per - 13 - Section 54 of the Act can safely be drawn against him to which, he failed to account for satisfactorily. 22. The learned trial Court had examined the matter to pass sentence in the light of the judgment of Division Bench of this Court rendered in Dharam Pal v. State of Himachal Pradesh 2008(1) Crimes 337 (HP) and thus, rightly convicted and sentenced him under Section 20 (B) of the Act for keeping in possession Charas weighing 306.75 grams, which is less than the “commercial quantity”, but greater than the “small quantity”. As such, the appeal sans merit, thus dismissed. December 31, 2010. (Surinder Singh), J. (rc)