IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 291 of 2010 Date of decision: 19.9. 2011 Daler Singh …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. Ashok Chaudhary, Advocate. For the respondent : Mr. A.K. Bansal, Addl. Advocate General and Mr. P.M. Negi, Dy. Advocate General. Surinder Singh, J (Oral) : Appellant has challenged his conviction under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ‘the Act’ passed by the learned Special Judge Una, in Sessions case No. 18 of 2009, for allegedly keeping in possession 9.980 kgs of poppy husk whereby he has been sentenced to undergo imprisonment for a period of three years and to pay a fine of `25,000/-, in default of payment of fine further to undergo rigorous imprisonment for a period of one year. 2. In short, prosecution case can be stated thus. On 23.9.2009, appellant was traveling in a 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - private bus bearing registration No.HP21-3015. He had occupied seat No. 4. Shri Sarwan Kumar was driver and PW16 Rakesh Kumar was the conductor of the bus. Around 11.30 a.m., it reached multipurpose barrier Gagret. (ii) PW1 Kartar Singh Peon of the Excise and Taxation Department, posted at Gagret Barrier, entered the bus to check the goods and material being carried in the vehicles. During the checking of the bus he noticed the appellant with a plastic bag clutched between his legs to which he was holding with his hands. He was asked about the contents of the bag but his reply was quite evasive, sometimes he told that he was carrying domestic articles and some times said about some electrical gadgets but he did not allow Kartar Singh aforesaid to check his bag. (iii) Thereafter PW1 informed PW2 Ranjit Singh E.T.O. On this E.T.O. along with PW1 Kartar Singh proceeded towards the bus. The bus started moving slowly, in that process appellant alighted from the bus. He was stopped at a few steps ahead. His identity was asked. The E.T.O. opened the bag carried by the - 3 - appellant and found some powdery substance in a packet. (iv) PW2 Ranjit Singh took the appellant to his office along with the bag and informed police. The bag was containing 10 packets of powder like substance which was like poppy husk. The bus was also not allowed to move from the place. (v) PW17 ASI Sushil Kumar entered report of the information received from ETO in the daily diary Ext. PW13/A. He prepared the reasons of beliefs Ext. PW6/A and sent through HHC Salamdeen to Dy. S.P. Amb. Thereafter proceeded to the spot. (vi) On reaching the barrier, he found the appellant present in the office of ETO. In the presence of ETO aforesaid and PW1 Kartar Singh, recorded the statements of Kartar Singh Ext. PW1/D which was sent for the registration of the case to the police Station concerned. (vii) Thereafter PW17 ASI Sushil Kumar gave his search to the appellant in the presence of the witnesses but nothing incriminating was recovered and to this effect memo Ext. PW1/B was prepared. Further, no option was required - 4 - to be given in terms of Section 50 of the Act to the accused yet the said Investigating Officer gave in writing Ext. PW1/A to exercise option by the appellant whether he would like to be searched by the Magistrate or before the Gazetted Officer. The appellant agreed to get himself searched by the police and on the personal search of the appellant, a mobile, key, wallet and two bus tickets (Ext. PW2/A) were recovered from the appellant vide memo Ext. PW1/C. (viii) PW1 produced the plastic bag to the Investigating Officer aforesaid in the presence of the witnesses and on opening it, it contained 10 packets having some brown powdery material which prima facie looked to be poppy husk power. (ix) One Harjinder Singh a vegetable seller, who was passing from there was called and joined in the investigation. He provided scale and weights. Each packets were weighed. 9 packets turned out to be 1 kg each but tenth packet was 9.80 grams. All the packets were sealed in the same bag with seal impression ‘E’. The seal impression was taken on a piece of - 5 - cloth Ext. PW1/F and seal after its use was handed over to PW2 E.T.O. Ranjit Singh. (x) Case property was taken into possession vide memo Ext. PW1/E in the presence of the witnesses. NCB forms in triplicate, one out of which is Ext. PW15/A were filled in at the spot. The site plan of the alleged recovery Ext. PW17/A was prepared, photographs were also taken by the official camera. 3. Appellant was arrested and grounds of arrested were informed to him. Ruka was sent for the registration of the case. 4. A special report was sent within the statutory period to the official superior. 5. Case property, sample seals NCB forms were produced before PW15 Inspector SHO Mehar Chand for the purpose of re-sealing which were re- sealed by him with seal impression ‘MC’ and report in the daily diary Ext. PW13/B was also made to this effect. SHO also made endorsement on the NCB forms against the relevant column. 6. Case property was deposited in the Malkhana by the Inspector SHO with PW10 MHC of the Police Station along with NCB forms and seal - 6 - impression. Abstract of the Malkhana Register is Ext. PW10/A. 7. On 25.9.2009, case property along with aforesaid documents were sent for its analysis to Forensic Science Laboratory, Junga through PW11 Constable Kuljit Singh vide RC No. 192/2009 which was deposited by him in the Laboratory and after obtaining the receipt, it was handed over to MHC of the Police Station concerned. 8. On the examination, the Chemical Examiner opined that the case property examined by him was poppy straw of opium poppy (Papaver somniferum) species in the exhibit. 9. After recoding the statements of the witnesses and completing the challan, it was presented in the court for the trial of the appellant. 10. Appellant was accordingly charge- sheeted for the offence aforesaid to which he pleaded not guilty and claimed trial. 11. To prove its case, prosecution examined its witnesses and appellant was also examined under Section 313 of the Code of Criminal Procedure. 12. During the trial of the case, appellant took up the defence that it was an unclaimed bag and the case was foisted upon him as he had a tiff with - 7 - the Excise Inspector. But in his statement under Section 313 of the Code of Criminal Procedure, he stated that about three days prior to the alleged incident, he had some altercation with the Excise Officials at the Barrier, thus a false case was foisted against him. 13. When called upon to enter into his defence but no evidence in defence was led. 14. At the end of the trial, appellant was convicted and sentence as aforesaid. Hence the present appeal. 15. Shri Ashok Chaudhary learned counsel for he appellant vehemently argued that prosecution could not link the appellant with the alleged recovery and further that there are material contradictions in the statements of the witnesses which renders the prosecution case doubtful. Since the learned trial Court did not examine the evidence of the prosecution in the right perspective which caused the material prejudice to the appellant. 16. Shri P.M. Negi, on the other hand supported the judgment of conviction and sentence. 17. I have reappraised the evidence on record closely and cautiously but I do not find any - 8 - material contradictions in the statements of the witnesses. The appellant, in the cross-examination of prosecution witnesses as well as in the statement recorded under Section 313 of the Code of Criminal Procedure has taken dilatory stands which remained unsubstantiated even by probabilities nor it could cause any dent in the probity of the prosecution case. 18. PW1 Kartar Singh Peon of the Excise Department categorically stated that the appellant was occupying seat No. 4 in the aforesaid bus and he had clutched the plastic bag in his legs to which he was also holding with hands. When asked about the contents thereof, he was reluctant to disclose its contents and even he resisted, to be checked by him (PW1) as such he reported the matter to PW2 Ranjit Singh E.T.O. who was present at the said barrier. Thereafter both of them proceeded towards the bus. In the meantime, appellant alighted from the bus. He was carrying plastic bag. He was stopped and the contents thereof were checked. It was found in the powder shape. They brought him to the Barrier and ETO was of the opinion that it was poppy husk. Thus he reported the matter to the police. When police reached the spot they also - 9 - confirmed this fact and took into possession the case property aforesaid. After applying seals on the plastic bag produced it before the Inspector/SHO Mehar Chand who re-sealed it with his own seal. Thereafter it was deposited with MHC, the entire sample parcel for its analysis which tested positive for poppy. In cross examination, appellant did not put any suggestion that the appellant had a tiff with PW2 Excise Inspector or that the case was foisted upon him on that ground. Absolutely, no malice has also been imputed to PW2 for implicating the appellant in a false case. Though lengthy cross- examination was conducted upon him, but nothing material could be extracted which could go in favour of the accused. 19. Further PW4 Harjinder Singh vegetable vendor supported the case of the prosecution. He stated that he brought weights and scale for weighing the case property. Even PW16 Rakesh Kumar conductor of the bus supported the case of the prosecution in its material particulars. It was suggested to him in his cross examination that appellant was under the influence of liquor and he had a quarrel with the Excise Inspector, is also - 10 - denied by him. He proves the recovery of the contraband sealing the entire stuff on the spot. 20. On the critical examination of the aforesaid evidence, it is absolutely clear that nine packets of 1kg each and one packet of 980 grams of poppy husk was recovered from the appellant which was carried by him in a plastic bag. These articles recovered were identified as Ext. P2 to P11 during the trial of the case which was received by the police after its chemical examination on 2.9.2009. 21. In the instant case link evidence is also complete. The entire recovered stuff was deposited with the MHC after re-sealing it, as stated above and it was carried by PW11 Kuljeet Singh to the Laboratory vide RC as aforesaid, along with NCB forms and sample of seals as well as police docket. As per report, all these articles were received in the Laboratory and it contained 9 seals of ‘E’ and these seals were found intact and tallied with the seal impression sent with NCB forms No. 1 Ext. PW15/A and after conducting the various scientific tests, such as colour tests, chemicals test and chromatographic analysis carried out in the Laboratory with exhibit under reference gave positive results for the - 11 - presence of Morphine, Codeine, Thebaine, Papaveine and meconic acid in the exhibit. All the above tests identified the presence of opium poppy (Papaver somniferum) species in the exhibit. Further during the trial, PW2 during his examination as a witness produced the seal which was used at the time of recovery on the spot by the Investigating Officer (PW17). Surprisingly, there is absolutely no cross-examination on this point. The fact which is not assailed in the cross-examination is deemed to have been admitted. Therefore, the offence charged against the appellant stands proved in accordance with law. Thus the conviction of the accused for the offence charged is upheld. 22. In so far as sentence is concerned, Shri Ashok Chaudhary learned counsel for the appellant submitted that the sentence imposed by the learned trial Court is on the higher side keeping in view the recovery of the alleged contraband which was less than the commercial quantity, which may be reduced to be commensurate with the recovered stuff. It is also argued that the appellant is only bread-earner of the family and has minor children to support. - 12 - 23. I have examined this aspect of the case. Under the Act, commercial quantity of opium husk is 50 kg for which the minimum sentence is ten years and a fine of `1 lacs. In the instant case the recovery is of slightly less than 10 kg, which is not a commercial quantity, therefore, sentence imposed on the appellant appears to be slightly higher, thus requires to be reduced to two years instead of three years as imposed by the learned trial Court, while maintaining the fine but in default of payment of fine, it is also reduced to six months instead of one year. Ordered accordingly. 24. Subject to the above modification in the sentence, the appeal is hereby dismissed. 25. The learned trial Court is directed to send modified warrants to the Superintendent Jail concerned in conformity with this judgment. September, 19 2011 (Surinder Singh), (cm) Judge.