IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.650 of 2008. Judgment reserved on: 7.4.2008. Decided on: April 27th, 2009 _______________________________________________________ Krishan Chand ……..Appellant. Versus State of H.P. ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Aman Sood, Advocate. For the respondent : Mr. J.S. Guleria, Asstt. Advocate General. ____________________________________________________ SURINDER SINGH,J : The appellant was convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short “the Act” allegedly keeping in his possession 334.5 grams of Charas out of the recovery of 1 Kg. Substance. Accordingly, he was sentenced to undergo Rigorous Imprisonment for a period of three years and to pay a fine of Rs.30,000/-, which has been challenged in this appeal. In brief, the prosecution case can be summed up thus. On 12.7.2007, PW3 SI Ramesh Chand along with HC Yash Pal (PW2), HHC Hem Raj (PW1) and HHC Lal Singh (not examined) were present on patrol duty for the detection of crime in Pulga jungle near the bridge. In the Whether reporters of the Local papers are allowed to see the judgment? Yes. evening, at about 6 p.m., the appellant came from the side of Pulga village holding an envelope in his hand. On noticing the police party present near the bridge, he immediately returned back and started walking fast towards village Pulga and tried to throw away the envelope but the police overpowered and prevented him from doing so. They enquired about his identity to which he disclosed. The said place being a secluded one, no independent witness was available, although an effort was made by HHC Lal Singh. In absence of any independent witnesses, HC Yash Pal and HHC Lal singh both were associated as witnesses to witness the search. The envelope, which was in the hand of the appellant contained the inscription of “Mayur School Bag.” It was searched in the presence of the above witnesses. It contained a Pant and T-shirt, wherein two packets were found wrapped with cello-tape, which contained 1.00 Kgs of Charas in all in the shape of small sticks. The police took two samples of 25 grams from the recovered quantity and sealed with seal impression ‘T’. The remaining Charas was also sealed with the same seal. The NCB forms, in triplicate, were filled in on the spot. The seal impressions were taken separately and after its use the seal was handed over to HC Yash Pal. The case property was taken into possession vide memo Ex.PB. The appellant was arrested and grounds of arrest were informed to him. A ruqa Ex.PC was sent for registration of the case through HHC Hem Raj, on the basis of which FIR Ex.PM was registered. The police had also prepared site plan of the place of recovery. The Special Report was sent within the requisite time to the Superior Officer. The appellant and the seized quantity along with samples were produced before PW7 SHO Mohinder Kumar. He resealed the case property with his seal producing the impression of letter ‘H’. The sample of seal Ex.PO of the said seal was also taken separately. Thereafter the case property was deposited in the Malkhana with PW5 MHC Roop Singh, which was entered by him in the Malkhana Register, the extract whereof is Ex.PH. On 15.7.2007, the sample of ‘Charas’ along with seal impressions and NCB forms and the photocopy of the FIR, seizure memo and another connected documents were sent to the FSL Junga through PW6 C.Pardeep Kumar through RC No.184/07 (Ex.PJ). After depositing it in the said Laboratory, he produced the receipt Ex.PK to Roop Singh MHC. The Laboratory vide its report Ex.PS confirmed that the sample so sent was that of Charas. After completing the investigation, the challan was presented in the court for trial of the appellant. The appellant was accordingly charge-sheeted for the offence aforesaid. He pleaded not guilty and claimed trial. Thereafter the prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure. He denied the case of the prosecution and according to him he was falsely implicated in this case. The appellant did not state or explain anything what was the malice or the ill-will of police to frame him in a false case, however when called upon to enter into his defence even he did not probablise his defence. At the end of the trial, the appellant was convicted and sentenced as aforesaid. Shri Aman Sood, learned counsel for the appellant argued with vehemence that the evidence of the prosecution is contradictory and does not inspire confidence, the independent witnesses were not included, HHC Lal Singh was given up, driver of the Van was also not examined and seal used was not produced. He further ventilated that only 25 gms of the alleged recovered stuff was sent for analysis, which as per the report was Charas there is no evidence what were the contents of the remaining stuff when no sample was taken from each of the sticks alleged to have been wrapped separately that too in two packets, thus relying upon the judgment of Supreme Court in Mr.Gaunter Edwin Kirchar vs. State [AIR 1993 SC 1456], it is argued that the appellant could not have been convicted under Section 20(b) (ii) B of the Act. Contra, Shri J.S. Guleria, learned Assistant Advocate General has supported the impugned judgment of conviction and sentence. He further pointed out from the evidence that although an attempt was made to include the independent witness, but it being a secluded place, no independent person could be located, as such, the search of the envelope was conducted in the presence of the police officials and those who were necessary to unfold the prosecution case, were examined. The non-examination of HHC Lal Singh is not fatal to the case and no dent has been caused in the statement of other official witnesses to entertain any doubt. The recovery of the contraband from the possession of the appellant stands proved. He further argued that the sample was taken from the recovered quantity at random and was a representative one which was sealed on the spot in the presence of the appellant. Its resealing by the SHO is proved. Both the seals were intact as reported by the Examiner. The appellant was already given the benefit of Dharam Pal’s case [2007 Latest HLJ HP 827] and was held guilty for possessing Charas less than the “commercial quantity” and more than the “small quantity”. The link evidence is complete; therefore, the judgment of the trial court which is based on sound principles of law cannot be interfered with. I have given my thoughtful consideration to the rival contentions so raised and have carefully gone through the evidence on record in the light of law applicable to the facts of this case. On re-appraisal of the evidence on record, it stands proved that the police apprehended the appellant on 12.7.2007 at a secluded place with a polythene envelope in his hand containing 1 KG stuff in two poly- packs wrapped together with cello-tape but the prosecution could only prove that the sample weighing 25 gms. Sent for analysis was of Charas, but there is no evidence as to what the remaining bulk contained as observed and held hereinafter. On facts, the case in hand is a case of chance recovery. Though in a chance recovery neither it is essential nor there is any requirement of law to associate the independent witnesses yet in this case, an attempt was made but HHC Lal Singh did not find any. Therefore, non inclusions of the independent witnesses and also for want of examination of Lal Singh both are not fatal to the prosecution case, if otherwise on the scrutiny of the evidence the evidence on record is found worth inspiring confidence. Further PW3 aforesaid has corroborated the prosecution story verbatim and testified on oath that on checking the envelope carried by the appellant which was having inscription of “Mayur School Bag” discovered a bag containing two parcels wrapped with Cello tape rolled in T-shirt and the Pant. On opening, it was found to have contained ‘Charas’, in the shape of small sticks, which were not counted but each stick was wrapped in polythene (wrapper). The recovered stuff was 1 Kg. While taking the samples of 25 gms each some sticks were taken as a whole for the purpose of taking samples and of the sticks might have been taken in broken pieces in order to complete weight of two samples of 25 gms each. Each of the samples and the remaining bulk were sealed by affixing seal producing the English letter “T”. On weighing it came out to be 1 Kgs. He separated two samples of 25 grams each and the remainder was packed in the same envelope and sealed with seal impression ‘T’ and both the samples were sealed with the same seal and after its use the seal was handed over to HC Yash Pal. The sample of seal was separately taken on Ex.PA. The case property was also taken into possession vide seizure memo Ex.PB, which was signed by HC Yash Pal and HHC Lal Singh. He further stated that NCB forms in triplicate were filled in on the spot and special report was sent to the Additional S.P., Kullu. He identified the bulk parcel (Ex.P1), Mayur print polythene envelope (Ex.P2), Pant (Ex.P3), T-shirt (Ex.P4), polythene envelope (Ex.P5), two packets (Exts.P6 and P7), Charas (Ex.P8) and second sample parcel (Ex.P9). PW1 HHC Hem Raj and PW2 HC Yash Pal have fully corroborated his version. In cross-examination, PW3 SI Ramesh Chand deposed that the sticks of the ‘Charas’ were weighed collectively, which of-course were not counted. Each stick of the charas was wrapped in polythene wrapper. While separating the sample some of the sticks were taken as a whole for the purpose of taking the sample and some of the sticks might have been taken in broken pieces in order to complete the weights of two samples of 25 grams each. He also deposed that the case property was produced before PW7 SHO Mohinder Kumar on the same day, which fact has been admitted by Mohinder Kumar S.H.O. and further according to him the case property was resealed by him with seal impression ‘H’ and he filled in column Nos.9 to 11 of the NCB forms in triplicate, thereafter deposited three sealed parcels, NCB forms, sample seals ‘H’ and ‘T’ with MHC (PW5) in Police Station Kullu and the case property was not tampered with. PW5 MHC Roop Singh admitted having received the case property in the Malkhana and he proved the entries in the Malkhana Register, extract of which is Ex.PH. He further deposed that on 15.7.2007, the sample along with seal impressions and the other documents were sent for the examination to the FSL Junga vide Road certificate Ex.PJ and on its deposit receipt Ex.PK was obtained and handed over to him by PW6 C.Pardeep Kumar. According to him, he had filled in column No.12 of the NCB form Ex.PJ. He further stated that the case property was not tampered with at any stage. Further PW6 C. Pardeep Kumar afforded corroboration to his statement. The report Ex.PS of FSL Junga clearly indicates the descriptions of the sample parcel received by them and according to its certificate, all the ‘inner and outer seals’ were found intact and it tallied with the seal impressions ‘T’ and ‘H’. On the critical examination of the aforesaid evidence, I do not find any contradiction in the statements of the witnesses, the recovery from the appellant stands proved. The link evidence is also complete from the time of recovery and taking sample of the contraband till its examination in the Laboratory. The facsimile of the seals on the NCB form tallied with the sample of seals as certified by the examiner in the laboratory. Thus non production of seal in the circumstances is not fatal and there is an overwhelming evidence to connect the appellant with the recovered stuff. Now the last contention raised is whether the sample sent for analysis was a representative sample and the accused was proved to have 1 K.G. stuff in his possession containing 334.5 grams of resin which was charas, worked out by the learned trial court on the basis of percentage mentioned in the report by applying Dharam Pal’s case supra. As stated above, the Charas was in two packets tied together with the cello-tape so as to look like one packet. The Charas was in the shape of small sticks, each stick was wrapped separately as stated by the Investigation Officer (PW3). The whole stuff was weighed together and it was found to be 1 K.G. Thereafter, two samples of 25 gms each were separated. The manner in which the sample by the said officer was taken, has been mentioned above. It is not stated by him from which of the two packets, he had taken the samples. Whether the samples so taken at random were of the representative character? In case of Mr. Gaunter Edwin Kircher supra, 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 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 packets recovered should be sent for chemical 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. As stated above, in the present case, the prosecution could only prove beyond doubt that the appellant was found in possession of 25 gms. of Charas as per the report of the analyst and other remaining stuff was not sent for analysis more specifically when it was in shape of small sticks wrapped separately, therefore, it is not known what it contained. Once this conclusion is arrived at, it follows that the appellant cannot be convicted and sentenced under section20 (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/-. Thus the sentence of the appellant is reduced to the maximum provided for the offence u/s 20(b)(ii)(A) of the Act i.e. Rigorous Imprisonment for 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. The appeal stands partly allowed. The accused appellant is in jail/detention since his arrest on 12.7.2007 and has already under gone the sentence nearly for about one year and 10 months more than provided for the offence. He be released forthwith if not required in any other case. The registry of this court to take necessary steps forthwith in compliance of this judgment. Send down the records. (Surinder Singh), Judge. April 27th, 2009. (Pds)