IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.398 of 2010. Decided on: March 1, 2011. ____________________________________________________________ Mohan Kumar. ……..Appellant. Versus State of H.P. ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Ashwani Pathak, Advocate. For the respondent : Mr. A.K.Bansal, Addl. Advocate General. _________________________________________________________ SURINDER SINGH,J (oral) : The appellant was convicted by the learned trial Court in Sessions Trial No.3 of 2009, on 1.4.2010, for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short “the Act”, allegedly for keeping in possession Charas i.e. 38.10 % weight-in-weight resin of Cannabis plant in the recovered stuff of 750 grams, thus sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of `30,000/- and in default of payment of fine to further undergo simple imprisonment for a period of one year. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. In short, the prosecution story can be stated thus. On 12.12.2008, PW6 ASI Daya Ram of Police Station Manali was heading a police patrolling party. At about 7 p.m., when they were crossing the ‘Prini bridge’, they noticed the appellant walking on foot, who on seeing the police party tried to move quickly and took out an polythene envelope from his jacket and threw it towards ‘Nali” on the side of the road. On suspicion, police apprehended him. The police did not find passerby to include them as a search witness(s), as such PW1 C. Rajan Kumar was sent to call independent witnesses from the nearby place, but no one was available, even a motorist refused to become a witness, hence HC Narain Chand and PW1 C. Rajan Kumar were associated as witnesses to the search of the accused. Before that ASI Daya Ram rendered himself to be searched by the accused person in presence of the aforesaid witnesses, but nothing incriminating was found and a memo Ex.PA to this effect was prepared. Thereafter, the polythene packet which was thrown in the ‘Nali’ by the accused was picked up. It was bearing the mark ‘Oswal’, which was - 3 - containing Charas in the form of small flattened pieces. It was weighed and it turned out to be 750 grams. 3. Two samples of 25 grams each were separated from the recovered stuff, for analysis and each of the samples were sealed with seal producing the impression of English alphabet ‘H. The remaining bulk was also sealed with the same seal. The sample of seal was separately taken on a piece of cloth and one of such sample is Ex.PB. 4. The police prepared the NCB forms in triplicate, one of such forms is Ex.PH. The facsimile of the sale was also put on such form. 5. The case property was seized vide memo Ex.PC in the presence of the aforesaid witnesses, one copy of the seizure memo was given to the accused free of cost. 6. Ruqa Ex.PR was sent to the Police Station through PW1 Constable Rajan Kumar, for the registration of the case, which culminated into FIR Ex.PE. 7. Site plan of the place of recovery was also prepared. The appellant was arrested and he was informed of the grounds of his arrest vide memo Ex.PD. - 4 - 8. The appellant as well as case property were produced before PW2 SI/SHO Om Parkash. He resealed each of the parcels with his own seal producing the impression of English letter “M”. The specimen of the seal was also taken on a piece of cloth Ex.PG and facsimile thereof was also put against column No.9 of NCB forms Ex.PH. Columns No.9 to 11 of the NCB forms were filled in by PW2 aforesaid under his stamp and signature. Thereafter, the case property was handed over to PW4 MHC Mohinder Singh to deposit the same in the Malkhana. After its deposit, he made an entry in the Malkhana register, copy of which is Ex.PN. 9. On 15.12.2008, one of the sample parcels was sent to the Forensic Science Laboratory Junga for its examination through PW5 C. Om Parkash alongwith copy of FIR, sample of seals and NCB forms in triplicate, to which he deposited it vide RCNo.199/08, copy of which is Ex.PO. On its return, he handed over the receipt on R.C. to the MHC aforesaid. 10. Special report Ex.PM was prepared and sent to the SDPO Manali, within the statutory period, which was received by PW3 HC Sher Singh, who made entry in the - 5 - relevant register and placed it before the SDPO aforesaid. 11. On analysis in the Laboratory, the sample parcel tested positive for Charas. The report is Ex.PJ. The quantity of the resin of Cannabis plant was found 38.10 per cent weight-in-weight as stated above. 12. After completing the investigation, the challan was presented in the Court for the trial of the appellant. He was accordingly chare-sheeted for the offence aforesaid, to which he pleaded not guilty and claimed trial. 13. To prove its case, prosecution examined its witnesses. The case of the appellant was denial simplicitor and in his statement under Section 313 Cr.P.C., he stated that he was already arrested a day before of the alleged incident, by the Manali police. 14. Disbelieving the plea taken by the appellant, the learned trial Court came to the conclusion that the recovery of the alleged contraband was effected from the possession of the appellant, as such, he was convicted and sentenced as aforesaid. 15. The only point, which was strenuously argued and asserted by Mr. Ashwani Pathak, learned counsel - 6 - for the appellant is that the prosecution story on the face of it is looking fishy insofar as the association of the independent witnesses are concerned. He argued that it has come in the evidence that there was inhabited village and shops nearby thus there was no reason why the police could not associate independent witness. Therefore, the explanation given by the Investigating Officer is wrong and is amenable to the suspicion. He also argued that keeping in view the facts and circumstances of the case, in any case the sentence imposed upon the appellant is on the higher side. 16. Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence and prayed for the dismissal of the appeal. 17. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and meticulously examined the evidence on record. 18. PW6 ASI Daya Ram has corroborated the prosecution case in its totality. In cross-examination although he stated that from the place of incident, there was Bazaar at a distance of 15-20 meters and - 7 - beside it, there were hotels adjacent to the bridge. He had sent PW1 C. Rajan Kumar towards Prini Bazaar to call independent witnesses but he could not get and he also stopped one vehicle, the person travelling also refused to oblige the police to become the witnesses to recovery, but surprisingly, no such question was put to PW1 Constable Rajan Kumar, who happened to be present with PW6 aforesaid, rather, it was put to him that the accused did not meet them on the spot. 19. The case of the prosecution cannot be rejected outright solely on the ground that the Investigating Officer failed to associate independent witnesses, more specifically, when there is no requirement of law for associating such a witness when the recovery is from the accused at an open place. Rather the Court should approach the statement of official witnesses with care and caution. If it is found to be trustworthy certainly it has to be acted upon. 20. On the scrutiny of the evidence, I find the case of the prosecution worth inspiring confidence and I also do not find anything to suspect their testimonies. The recovery of the Charas as alleged from the possession of the appellant stands proved. Both the witnesses i.e. - 8 - PWs 1 & 6 are quite categoric and unanimous, leaving no doubt that the appellant was not having in his possession the polythene bag, to which he threw on the spot in a ‘Nali’, which was recovered and taken into possession by the Police as aforesaid. The samples from the recovered stuff were also separated in the presence of the appellant and two police witnesses. The seal impression “H” was also taken separately, thereafter the appellant was produced before PW2 SI/SHO Om Parkash, who resealed the case property as aforesaid. The appellant, who was also produced before him, even did not raise his voice about his wrong implication in the case, not only before him, but also before the Magistrate, when produced. Thus, I hold that the appellant was in possession of the contraband aforesaid. 21. Once the recovery from the possession of the appellant stands proved, by virtue of Section 54 of the Act, the presumption has to be drawn against the appellant for the commission of the offence charged, more specifically, when he failed to count for the possession of the Charas satisfactorily. - 9 - 22. Since the appellant did not explain the possession of the recovered stuff with him, which ultimately turned out to be 750 grams in which Charas 285.75 grams i.e. resin of cannabis plant was found to be 38.10 percent weight-in-weight, therefore, in the facts and circumstances of the case, the offence under Section 2(b)(1)(B) of the Act stands proved against him, as such the conviction passed by the learned trial Court in the instant case cannot be faulted. 23. Insofar as the sentence is concerned, the fine amount in sentence in default, appears to be slightly on the higher side. Thus, the fine from ` 30,000/- as ordered by the learned trial Court is reduced to ` 25,000/- and in default, the appellant shall also undergo simple imprisonment for a period of “six months” instead of “one year”, as awarded by the learned trial Court. Thus, while maintaining the conviction of the appellant, the sentence stands modified to the above extent. The appeal disposed of accordingly. - 10 - 24. The learned trial Court is directed to send a modified warrant to the Superintendent Jail concerned, in conformity with this judgment. 25. The matter stands disposed of. Send down the record. March 1, 2011. (Surinder Singh), (Pds) Judge.