IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 216 of 2002 Date of decision: 26. 5. 2009 Samantha Black …..Petitioner Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. Anup Chitkara, Advocate. For respondents: Mr. J.S. Guleria, Assistant Advocate General. Surinder Singh, J. (Oral) The appellant was convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short “the Act” for allegedly keeping in her possession 600 gms of ‘charas’ as such she was sentenced to undergo rigours imprisonment for a period of five years and to pay a fine of Rs. 50,000/- and in default of payment of fine, she was further ordered to undergo simple imprisonment of three months. The appellant was also given the benefit of Section 428 of the Code of Criminal Procedure for the period during which she remained in custody. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. - 2 - In brief, the prosecution case as emerges from the evidence on record is that in the year 2001, PW-12 Head Constable Lal Singh was posted in Police Post patlikuhal. On 20.9.2001 at about 5 p.m. he along with other police officials including a lady constable Manoj Kumari was present at patlikuhal Bazar where he received the secret information that a foreigner lady was traveling in HP Tourism Bus bearing registration No. HP-01-1848, which was coming from Manali. She was occupying Seat No. 3 and was having ‘charas’ in her possession. This information was reduced into writing, copy whereof is Ext.PW-3/A and its intimation was sent to D.S.P. Kullu through constable Mahinder Lal. Thereafter he associated PW-10 Prem Singh and PW-11 Bhup Singh as the independent witnesses from the Bazar and waited for the Bus. At about 5.45 p.m. the said bus arrived in Patlikuhal Bazar and police started checking of the Bus in the presence of the witnesses and found the foreigner lady i.e. the appellant herein, occupying seat No. 3 in the said Bus. Her passport was checked and identity was ascertained. Thereafter, she was asked to get down from the Bus along with her luggage. She was brought to the police post Patlikuhal nearby because of the heavy traffic - 3 - rush on the spot. She was given the option of her right to be searched before the Magistrate or before the Gazetted Officer or by the Police party. The appellant opted to be searched by the police party present there. To this effect her consent memo Ext. PW-10/B was obtained in the presence of the witnesses aforesaid. Thereafter PW-12 Head constable Lal Singh subjected himself to be searched by the appellant but no incriminating article was found from his possession and to this effect memo Ext. PW-10/B was prepared. Thereafter said Head constable searched the bag of the appellant along with other articles. He recovered a polythene packet containing ‘charas’ from the bag, which was in the shape of chapattis (flats) and sticks. On weighing, recovered stuff come out to be 600 gms. out of which three samples of 25 gms were separated randomly. Each of the samples were sealed with seal impression ‘H’ and remaining ‘charas’ was also kept in the same packet and thereafter sealed in a piece of cloth with the same seal. The N.C.B. forms in triplicate were filled in on the spot. The facsimile of seal was also affixed on each of the forms aforesaid. - 4 - The case property was taken into possession vide seizure memo Ext. PW-10/C in the presence of the independent witnesses, who had also attested the seizure memo. Its copy was given to the appellant and thereafter she was arrested and her grounds of arrest were informed to her vide Ext. PW-10/D. List of articles was prepared except Bus tickets Ext.PW-10/A, other articles were returned to the appellant. Ruka Ext. PW-1/A was sent for registration of the case, through constable Om Parkash. The police prepared the site plan Ext. PW-12/E. Specimen seal impression Ext. PW-11/A were also taken. The case property was produced before PW-14 S.H.O Bhupinder Pal who re-sealed it with seal impression ‘T’ and facsimile was also put on the NCB forms against column No. 8. The special report was prepared and sent to official superior within the statutory period. The case property was deposited with PW-5 Head Constable Bheem Singh, officiating M.H.C. in Police Station Manali, along with NCB forms and sample of seal. Its entry Ext. P-F was made in the Malakhana Register. Khem - 5 - Chand PW-13 took over as MHC from PW-5 after he returned from the leave. On 23.9.2001 one sample packet along with NCB forms copy of seizure memo were sent to CTL Kandaghat through constable PW-4 Lal Singh vide RC No. 123, copy of which is Ext. PW-13/A. The abstract of Malkhana Register is Ext. PW-13/B. After receipt of the report Ext. PW- 6/A and on completing the investigation, challan was presented in the court for the trial of the appellant. Finding a prima facie case against the appellant, she was charge sheeted for the offence aforesaid. She pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses. After closure of the prosecution evidence, the appellant was examination under Section 313 of the Code of Criminal Procedure. According to her she was falsely implicated in this case and denied the recovery. On appreciating the evidence on record learned trial court held the accused- appellant guilty. Thus, he was convicted and sentenced as aforesaid, which has been challenged in this appeal. - 6 - Shri Anup Chitkara, learned counsel for the appellant has argued with vehemence that the independent witnesses, in this case did not support the case of the prosecution. The statement of the official witnesses is contradictory, which cannot be relied upon to sustain conviction of the appellant. He further submitted that as per the case of the prosecution, recovered stuff was in the shape of flats and sticks and there is nothing on record to show that the sample taken was of representative character. There is also no evidence as to what remaining stuff contained. Contra Shri J.S. Guleria, learned Assistant Advocate General while supporting the judgment of conviction and sentence submitted that although independent witnesses have not supported the case of the prosecution yet the official witnesses are consistent in their statements and their versions are confidence inspiring and further submitted that the manner in which the sample was drawn was not assailed in the cross-examination of the Investigating Officer, therefore, it cannot be said that the sample taken was not of a representative character. I have thoughtfully considered the above contentions raised by the parties and have carefully scrutinized the record. - 7 - In fact, it is a case where the police had prior information and this information was received by PW-12 Head constable Lal Singh. It is testified by him on oath that it was recorded and its copy was sent through constable PW-1 Mahinder Pal to D.S.P. Kullu. After sending this information, PW-12 Lal Singh associated Prem Singh (PW-10) and Bhup Singh (PW-11) in the investigation of the case. They have not supported the case of the prosecution during the trial. However, they admitted their signatures on the recovery memo Ext. PW-10/C and other documents. PW-10 Prem Singh stated that before signing he did not go through the aforesaid memos and other documents and same is the statement of PW-11 Bhup Singh. PW-12 H.C. Lal Singh had testified on oath that the appellant was sitting in the Bus on Seat No. 3. After checking her passport, she was asked to get down from the bus along with her luggage and from her bag 600 gms. ‘charas’ in different shapes were recovered and the samples were taken, as aforesaid. This fact has also been corroborated by PW-8 constable Om Parkash, PW- 9 Lady constable Manoj Kumari. They were subjected to lengthy cross-examination but nothing material could be extracted from them. - 8 - As per the list of articles Ext. PW-10/D, the appellant was found in possession of some foreign currency notes, Indian currency, one suite case, computer and jewellery and also a bag from which the alleged recovered stuff of ‘charas was taken into possession. During the trial, remaining samples Ext. P-2 and Ext. P-3 were identified by PW-12 along with remaining stuff Ext. P-5 which was allegedly kept in the bag Ext. P-4. Entry of these articles finds mention in the Malkhana Register abstract of which is Ext. PW-13/B. The non-supporting attitude of independent witnesses is of no avail to the appellant, when the official witnesses have fully corroborated the prosecution story. It stands fully established on record that the police have recovered 600 gms. of stuff from the possession of the appellant which was in the shape of sticks and flats. The manner in which the samples were taken has not been spelt out by the Investigating Officer and there is nothing on record to show that the sample was drawn either from the flats or sticks or both. There is no evidence that the recovered stuff was made homogeneous before drawing the samples, to call it a representative sample. - 9 - 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 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 - 10 - 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 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 - 11 - No.650 of 2008 titled Krishan Chand v. State of H.P. decided on 27th April, 2009. In the instant case, applying the above principles of law, prosecution could only prove beyond doubt that the appellant was found in possession of 25 grams of ‘Charas’ i.e. 25 gms. which is a small quantity. But as already stated above, prosecution could not prove as to what were the contents of the remaining bulk. Therefore, 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/-. The record of the case shows that the appellant remained in detention/Jail for 20 days. As per the report of the Registry, the fine of Rs. 50,000/ stands deposited by the appellant as per letter No. SJ/K/Cr.A/R.W/2002- 1802, of the Sessions Judge. Therefore, the appellant is ordered to be sentenced for the period already under gone and to pay a fine of Rs. 10,000/-. The sentence stands fully satisfied. The excess amount of Rs. 40,000/-, which stands deposited in the court of learned - 12 - Session judge, shall be refunded by the learned trial court to the appellant only, against her proper receipt and identification. The matter stands disposed of. Send down the records. May 26, 2009 (Surinder Singh),J. (cm)