IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 180 of 2005 Reserved on: 21.04.2009 Date of decision: 27.05.2009 Raja ... Appellant Versus State of H.P. … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. Ravinder Thakur, Advocate. For the respondent: Mr. R.M. Bisht and Mr. Rajesh Mandhotra, Deputy Advocate Generals. Per V.K. Ahuja , J.: This is an appeal filed by the appellant under Section 374 Cr.P.C. against the judgment of the Court of learned Sessions Judge, Kullu, dated 30.12.2004, vide which the appellant was held guilty under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the ‘N.D.P.S. Act’ for possessing 6 Kg. of Charas in his possession. The appellant was sentenced to rigorous imprisonment for a period of ten years and to pay a fine of Rupees One Lac. In default of payment of fine, the appellant was to suffer imprisonment for four years. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 The prosecution story in brief is that on 30.10.2003, at about 5.30 A.M., PW-5 H.C. Yoginder Pal alongwith PW-4 HHC Fateh Singh was present in the area of Rasu Forest in connection with patrolling and nakabandi. They spotted a person coming from Malana side on foot, who became perplexed on seeing the police. The said person was carrying a rucksack on his back and on enquiry, he told that he was coming from village Malana and was going to Panjab. The said person was the appellant and the Investigating Officer associated two officials accompanied him since it was an isolated place and thereafter checked the rucksack after giving personal search to the accused. On search, the said bag was found containing 6 Kg. of Charas. Two samples of 25 grams each were separated from the recovered Charas and were sealed separately and the remaining Charas was also sealed on the spot and these were taken into possession vide recovery memo. The Investigating Officer completed the formalities, deposited the case property with the S.H.O. at the Police Station and on completion of the investigation and on receipt of the report of the expert, the challan was filed as against the appellant, who was tried by the learned trial Court, leading to his conviction and sentenced as detailed above. We have heard the learned counsel for the parties and have gone through the evidence in detail. The submissions made by the learned counsel for the appellant were that the sample sent to the expert for analysis was not the same since it was sealed only and was not marked and, therefore, the report of the expert cannot be linked with the appellant. It was also submitted that the Investigating Officer has stated that two samples of 3 25 grams each were taken, while the sample received in the laboratory was weighing 25.4416 grams and, therefore, it shows that the sample was tampered with and as such, the report of the Chemical Examiner cannot be linked with the accused. On the other hand, the learned Deputy Advocate General for the respondent had submitted that the minor variation or difference in the sample sent for analysis has to be ignored and it does not lead to an inference that the sample was tampered with during the process it reached the office of Chemical Examiner. On perusal of the record of the case, it is clear that the prosecution had examined seven witnesses to substantiate their case. Out of these witnesses, the statements of two witnesses, namely, the Investigating Officer PW-5 H.C. Yoginder Pal and that of PW-4 HHC Fateh Singh and a member of the raiding party, have to be considered as to whether they prove the recovery of the Charas in question from the exclusive and conscious possession of the appellant or not. PW-5 H.C. Yoginder Pal as mentioned above was present in the area alongwith HHC Fateh Singh PW-4 and HHG Hukam Ram in connection with patrolling and nakabandi in Rasu Jungle. They apprehended the accused coming from Malana side on foot and the Investigating Officer could not associate any person as a witness since it was an isolated place and he associated two police constables with him as witnesses. He gave his personal search to the accused vide memo Ext. PW-4/A. Thereafter, he checked the rucksack(bag) being carried by the accused and five parcels wrapped in a Khaki wrapping paper were found therein containing Charas in the shape of sticks, tablets and small balls, which were mixed and it was found to be Charas 4 weighing 6 Kg. Two samples of 25 grams each were separately taken and then packed in two empty packets separately. The remaining Charas was sealed separately after sealing them was taken into possession vide recovery memo Ext. PW-5/A. He prepared NCB form, put the specimen impression of seal ‘H’ on the NCB form and took the case property in possession vide recovery memo Ext. PW-4/B. He also prepared a memo of other articles recovered from the bag, sent ruka through constable Fateh Singh to Police Station, Kullu, prepared site plan Ext. PW-5/C, arrested the accused and prepared arrest memo Ext. PW-5/D. He proceeded to Police Station, Kullu and deposited the case property with S.I. Kamla. He prepared special report and on receipt of the report of the Chemical Examiner Ext. PA. The case file was handed over to S.I./S.H.O. Kamla for preparation of the challan. He also prepared the parcels Ext. P-1 and P-2 (bag) recovered at that time. PW-4 Fateh Singh, Constable and a member of the raiding party has materially corroborated the statement of PW-5 H.C. Yoginder Pal on all material particulars in regard to the recovery and apprehension of the accused. Apart from the above, the prosecution had also examined PW-1 H.C. Roop Singh, the then MHC, who received the case property from S.I./SHO Kamla Devi. He sent the sample to C.T.L. Kandaghat through HHC Lal Singh. The said Lal Singh had been examined as PW-2, who has corroborated this statement in regard to the taking of the sample and depositing in the office of the expert. PW-3 LHC Chander Parkash had proved the copy of rapat vide which the Investigating Officer and two other officials had proceeded for nakabandi towards Rasuka Forest. 5 PW-6 Kashmi Ram, the then Reader to Deputy Superintendent of Police, Kullu, has been examined to prove that the special report was received in this case, which was presented before the Deputy Superintendent of Police and he has proved the copy of the said report Ext. PW-6/A. PW-7 S.I. Kamla, the then S.H.O., Kullu, has received the memo from Investigating Officer and recorded the FIR Ext.PW-7/A. On the same day, the case property was deposited with her duly sealed and she resealed the three sealed parcels with her own seal and handed over the case property in the evening to MHC Roop Singh. On receipt of the report of the Chemical Examiner Ext. PA, she prepared the challan and presented the same in Court. On appraisal of the above evidence led by the prosecution, it is clear that the recoveries were effected from the person of the accused and the case property was duly deposited with the S.H.O., who resealed the same and deposited it with the MHC. The sample was duly sent to the office of the Chemical Examiner and the report of the Chemical Examiner was received that the contents of the sample were that of Charas. The special report as required by law was also sent to the Deputy Superintendent of Police and there is evidence to this effect to prove all these points. The learned trial Court had considered the evidence and had referred to this part of the evidence in regard to the compliance of the mandatory and directory provisions of the Act. No specific arguments were raised before this Court in regard to non- joining of independent witnesses or other material points, which have been discussed by the learned trial Court in its judgment. We need not refer to the said evidence again since no such plea has been raised before this Court in regard to non-joining of the independent witnesses. 6 The learned trial Court had discussed this point that the recoveries were effected from the isolated place and there was nothing to show that there were houses near the place of occurrence or persons were available but were not associated. The requirement of Section 100(4) Cr.P.C. is to call independent witnesses at the time of search and they are mainly in regard to the search of the house but they also apply in the case of personal search. However, in case the Investigating Officer is able to give explanation for non-joining of the independent witnesses, it has to be considered and in view of the facts of the case, it is clear that since the recoveries were effected from an isolated place in the early hours of the morning, it was not possible to associate the independent witnesses. No prejudice has been caused to the accused in regard to the non-joining of the independent witnesses. No arguments were advanced in regard to the plea set up by the accused in his defence that he was going in the bus and was alighting from the bus and the case was falsely planted upon him. The learned trial Court has discussed the statement of the accused, who appeared himself in his defence, did not produce any bus tickets, which he had allegedly purchased and did not examine any other witness to substantiate his plea and, therefore, his statement does not inspire confidence to hold that the case was falsely planted upon him. The learned trial Court had considered the evidence of the accused and had come to a right conclusion that the defence plea was not substantiated. In our view, the accused could have produced the bus tickets, which were in his possession, which was not done and, therefore, the plea taken by him was not substantiated. 7 Coming to the question as to whether the statements of the Investigating Officer and the other recoveries can be relied upon, the law in this regard is very clear that the statements of police officials or other officials are to be considered and appreciated as that of any other independent witnesses and the mere fact that they are official witnesses is not sufficient to discard their testimony in the absence of allegations or proof of any bias or enmity with the accused. The accused is from District Amritsar (Punjab) and he has not been able to substantiate or even allege that he had any enmity with the Investigating Officer that he falsely implicated him. Statements of the official witnesses in such circumstances are to be appreciated with care and caution and after consideration of the evidence, we are of the opinion that there is nothing on record to disbelieve the statement of the Investigating Officer and other witnesses accompanied him. Coming to the plea in regard to the question that the samples were not marked, they were not required to be marked separately and there is evidence to this effect that they were duly sealed with seal ‘H’ and case number etc. is only mentioned in the sample and the second sample was not called from the record and it was not proved that it did not contain the name of the accused or case number. No separate mark was required and, therefore, the plea is without any substance. Coming to the second plea that the samples were taken of 25 grams each, whereas the report of the Chemical Examiner Ext. PA shows that the weight was 25.4416 grams. Law in this regard is very clear that the minor variation in weight is not sufficient to hold that the sample was tampered with particularly when the report of the Chemical 8 Examiner Ext. PA clearly shows that the seals were found intact, unbroken and that the seal impression tallied with the specimen of seal sent separately. In coming to this conclusion that the minor variation in weight is to be ignored, we are supported by the case law cited by the learned Deputy Advocate General for the State/respondent. The decision in State by CBI Vs. Dilbagh, (2004) 13 Supreme Court Cases 99, shows that in that case also there was a difference in weight of the sample which was to the extent of 5.5 grams. Their Lordships of the Hon’ble Supreme Court had clearly held that the difference in weight to this extent was required to be ignored. Similar observations were made by their Lordships in Madan Lal and another Vs. State of H.P., (2003) 7 Supreme Court Cases 465, wherein tampering was alleged and some variation was found in the weight. It was held that the Court below had rejected the plea in regard to tampering by giving reasons and since these were very minimal and almost ignorable variation in weight and, therefore, it was held that it was liable to be ignored. In view of the above discussion, we accordingly hold that there is no merit in the plea raised by the learned counsel for the appellant in regard to tamper or difference in weight and this contention putforth is repelled being devoid of any force. On appraisal of the evidence led by the prosecution, we are accordingly of the view that the findings recorded by the learned trial Court holding the appellant guilty under Section 20 of the ‘N.D.P.S. Act’, are liable to be affirmed, since there are no material contradictions or infirmities in the prosecution case. 9 The last plea raised by the learned counsel for the appellant was that the appellant is not liable for the total quantity of Charas recovered from his possession, but he is liable to the extent of resin found in the sample and accordingly he had prayed that he is entitled to lesser sentence. Reliance was placed upon a decision of Division Bench of this Court in Dharam Pal Vs. State of H.P., Latest HLJ 2007 (HP) 827. A perusal of this judgment shows that a question was raised before the Division Bench that in case the percentage of resin found in the content of Charas is less than the recovered Charas, the quantity of resin found can be said to be Charas and not the whole quantity recovered from possession of the accused. Accordingly, it was held that the sentence has to be imposed keeping in view the quantity of resin found in the total quantity of Charas recovered from the possession of the accused. A perusal of the said judgment of the Division Bench shows that a similar plea was raised before the Bench and in that case the quantity of Charas recovered was 1.600 grams, but the chemical examiner on the analysis of representative of the sample of the stuff found that it contained only 28.92% resin and accordingly had referred to the term cannabis, charas, ganja etc. The Division Bench finally concluded that since the report of the chemical examiner shows that percentage of resin found was 28.92% and it was silent about the rest of the contents of the stuff which means that the entire quantity of the recovered stuff was not Charas. The Division Bench of this Court had finally concluded that only the percentage of the resin found in the substance can be termed as Charas and not the remaining substance. Once there are findings of the Division Bench 10 about this aspect, this plea is not open to be considered before this Court which is bound by the Division Bench ruling of this Court. We may refer to a decision of the Apex Court in E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau, (2008) 5 Supreme Court Cases 161, wherein the incriminating article recovered was heroin and purity of heroin was 1.4% and 1.6% respectively in two samples. It was held by the Apex Court that the punishment would vary depending upon whether quantity of offending material is “small quantity”, “commercial quantity” or something in between. It was held that the intention of legislature was to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. It was held that content of narcotic drug translated into weight that is relevant. Therefore, the sentence was reduced by the Apex Court in that case. In the present case, the total contraband recovered was 6 Kg. According to the report of the Chemical Examiner Ext. PA, the resin contents were 30.09% and thus, the Charas recovered can be said to be about 2 Kg. Therefore, the quantity of Charas in the present case is definitely more than 1 Kg. Once the accused was found in possession of Charas more than 1 Kg., he was liable to be sentenced to rigorous imprisonment for a minimum period of ten years and the sentence of ten years imposed by the learned trial Court and fine of Rupees One Lac calls for no interference by this Court. However, it was submitted that sentence in default of payment of fine is excessive, which the appellant will not be able to pay being a poor person. The learned trial Court had imposed the sentence of four years in case of default of payment of fine and, therefore, the sentence imposed in default of payment of fine 11 is reduced to rigorous imprisonment for a period of two years only. The appeal is partly accepted to this extent. In view of the above discussion, the appeal is partly accepted to this extent that substantive sentence is maintained, while the imprisonment in default of payment of fine is reduced to two years. A copy of the judgment be sent to the Jail Superintendent for information and necessary compliance. ( Deepak Gupta ), Judge ( V.K. Ahuja ), May 27, 2009 Judge (BSS) 12