IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 473 of 2010. Judgment reserved on 7th March, 2011. Decided on: 15th March, 2011. _______________________________________________________ Soma Ram ….Appellant. Versus State of H.P. …..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Y.P. S. Dhaulta, Advocate. For the respondent : Mr. A.K. Bansal, Additional Advocate General. ____________________________________________________ SURINDER SINGH, J. Appellant stands convicted by the learned trial Court in Sessions Trial No.34 of 2009, decided on 1st October, 2010, under Section 20 (b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’, for allegedly keeping in possession 209.06 grams of Charas in the recovered stuff of 500 grams of Charas, as such convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of ` 30,000/-, further three months simple Whether reporters of the Local papers are allowed to see the judgment? - 2 - imprisonment in default, hence the present appeal by him. 2. In short, the prosecution case is that on 15th December, 2008 at about 6.20 p.m., PW2 Inspector Prem Dass, ASI Rattan Chand, PW7 Contable Tarsem Lal and PW8 Constable Khub Ram were present at Dhalpur Chowk. PW2 aforesaid received an intimation that the appellant was sitting at Bhutti-Chowk, draping a blanket, having in his possession Cannabis. This information was reduced into writing Ext.PW2/A= Ext.PW6/A, which was sent to Additional S.P. through PW7 Constable Tarsem Lal, which was delivered around 6.30 p.m.. He made the endorsement on this report and handed over to his Reader PW6 HC Nirat Singh. He made its entry in the relevant register, abstract of which is Ext.PW6/B. Thereafter PW1 Hem Chand and Ranjan Kumar (not examined) were associated as independent witnesses in the raiding party and found appellant sitting on the foot- path draping a blanket. His identify was asked. 3. PW2 Inspector Prem Dass informed him entertaining suspicion that he was having narcotic in his possession and he has a right to be searched before a Gazetted Officer or a Magistrate. The appellant consented to be searched by the police party present there and to this effect he executed consent memo - 3 - Ext.PW/1A. PW2 Inspector Prem Dass rendered himself to be searched by the appellant and nothing incriminating was found in his possession. Memo Ext.PW1/B was prepared to this effect. Thereafter appellant was searched. He was having backpack (Ext.P2) in his lap covered with blanket around him. It was searched. It contained one shirt (Ext.P3), another half sleeves shirt (Ext.P4) pant (Ext.P5) and one cloth bag having blue and white strips (Ext.P6) kept below the clothes. On opening the fabric-bag one polythene bag (Ext.P7) was discovered containing black coloured Cannabis wrapped in polythene (Ext.P8). From there the recovered stuff as well as the appellant was brought to the traffic office Dhalpur, nearby, where Charas was weighed. 4. Out of the recovered stuff 25 grams each were separated for analysis and sealed with seal impression ‘A’. The remaining bulk was also sealed. The polythene-bag was put in same fabric-bag. Clothes and fabric-bag were also put back into the backpack and wrapped in a piece of cloth thereby making one parcel, which was also sealed with the same seal. 5. NCB forms in triplicate were filled-in on the spot. Facsimile of the seal was also taken against proper column in the form and one of such form is Ext.PW2/B. Sample of seal was also taken separately on pieces of - 4 - clothes and one of such impression is Ext.PW1/C. Seal after its use was handed over to PW1 Hem Chand. 6. Case property was taken into possession vide seizure memo Ext.PW1/E in the presence of the witnesses, who also signed the seizure memo. 7. Ruqa Ext.PW/2C was prepared and sent through Constable Khub Ram to the Police Station concerned, which culminated into FIR ext.PW3/A. 8. Inspector Prem Dass also prepared site plan Ext.PW2/E of the place of recovery and recorded the statements of the witnesses. 9. Appellant was arrested and memo Ext.PW/1D of his arrest was prepared on the spot. 10. Case property was handed over to PW4 MHC Manoj Kumari alongwith sample seal, NCB forms, photocopy of FIR and seizure memo for its deposit in the Malkhana, which was entered into relevant register, abstract of which is Ext.PW4/A. One of the samples was sent by the MHC aforesaid alongwith aforesaid documents through Constable Pradeep Kumar (PW5) on 16th December, 2008, vide RC Ext.PW4/B to deposit it in FSL, Junga for analysis. On the deposit of the aforesaid parcel, he obtained receipt on the RC and handed it over to MHC aforesaid on his return. - 5 - 11. Ext.PW2/G, special report was prepared by PW2 Inspector Prem Dass, which was sent to the office of Additional S.P. within the statutory period. 12. On examining the sample parcel in the laboratory analysis report Ext.PW2/H was issued, according to which the sample sent tested positive and it was containing 41.92% resin weight-in-weight of the Cannabis plant. 13. Police also sent the remaining bulk of the Charas which was kept in the Malkhana to FSL, Junga for its analysis. 14. Vide report Ext.PA, it was found containing resin to the extent of 40.90% weight-in-weight of Cannabis plant. Thus a supplementary challan was presented in the Court. 15. After completing investigation, challan was presented in the Court. Appellant was accordingly charge-sheeted for the aforesaid offence to which he pleaded not guilty and claimed trial. 16. To prove its case, prosecution examined its witnesses. PW1 Hem Chand did not support the prosecution case, whereas the other official witnesses viz. PW2 Inspector Prem Dass, the Investigating Officer, effected the recovery, PW3 Vidya Chand, PW4 MHC Manoj Kumari, PW5 Constable Pradeep Kumar, PW6 - 6 - Constable Nirat Singh, Reader of the Additional S.P., PW7 Tarsem Lal and PW8 Constable Khub Ram supported the case of the prosecution. 17. The stand taken by the appellant was denial simplicitor when examined under Section 313 of the Code of Criminal Procedure whereby he also alleged false implication. When called upon to enter into defence, but no evidence in defence was led. 18. After examining the arguments advanced by the learned Counsel for the parties, the learned trial Court convicted and sentenced the appellant as aforesaid while relying upon the testimonies of the official witnesses holding that the independent witness who turned hostile to the prosecution stood completely contradicted from his previous statement recorded by the police under Section 161 of the Code of Criminal Procedure, his whole testimony stands impeached and thus discarded as evidence in toto. 19. Shri Y.P.S. Dhaulta, learned Counsel for the appellant vehemently argued that there has been non- compliance of mandatory provision of Section 50 of the Act. The sole independent witness has not supported the case of the prosecution and another witness Ranjan Kumar was not examined, therefore, the statements of the official witnesses which are contradictory in nature - 7 - with respect to the site of the recovery cannot be believed. Thus the conviction and sentence passed by the learned trial Court in the instant case is bad in law. 20. Contra, Shri Bansal, learned Additional Advocate General, for the State, supported the impugned judgment of conviction and sentence and urged that the learned trial Court has meticulously examined the evidence and the reasons have been supported with the case law, thus the judgment impugned does not require any interference. 21. I have given my thoughtful consideration to the rival contentions of the parties and have reappraised the evidence on record in the background of law applicable to the facts and circumstances of the case. 22. The object, purpose and scope of Section 50 of the Act, was the subject-matter of discussion in a number of decisions of the Supreme Court. In Ajmer Singh v. State of Haryana (2010) 3 SCC 746, the Apex Court considered the judgment of constitution bench of five Judges of the Apex Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172, whereby after exhaustively considering the decisions, concluded as under:- (I) When search and seizure is to be conducted under the provision of the Act, it is imperative for him - 8 - to inform the person concerned of his right of being taken to the nearest gazetted officer or the nearest Magistrate for making search. (II) Failure to inform the accused of such right would cause prejudice to an accused. (III) That a search made by an empowered officer, on prior information, without informing the accused of such a right may not vitiate trial, but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction is solely based on the possession of the illicit article, recovered from his person, during such search. (IV) The investigating agency must follow the procedure as envisaged by the statute scrupulously and failure to do so would lead to unfair trial contrary to the concept of justice. (V) That the question as to whether the safeguards provided in Section 50 of the Act have been duly observed would have to be determined by the court on the basis of the evidence at the trial and without giving an opportunity to the prosecution to establish the compliance of Section 50 of the Act would not be permissible as it would cut short a criminal trial. (VI) That the non compliance of the procedure i.e. informing the accused of the right under sub-Section (1) of Section 50 may render the recovery of contraband suspect and conviction and sentence of an accused bad and unsustainable in law. (VII) The illicit article seized from the person of an accused during search conducted without complying the procedure under Section 50, cannot be relied upon as evidence for proving the unlawful possession of the contraband. - 9 - 23. The constitution bench of the Apex Court in Vijay Sinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609, also considered Baldev Singh’s case alongwith other judgment on a reference made to it on the same question and concluded that the object with which the right under Section 50 (1) of the Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. This Section is mandatory and requires strict compliance, failure to comply with the said provision would render the recovery of the illicit article suspect and vitiate the conviction. In other words, the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. 24. Undisputedly where it is a case of search of a person certainly Section 50 will apply, its non-compliance would be fatal to the prosecution. But where the recovery is from bag, briefcase or container etc., the Apex Court in State of H.P. v. Pawan Kumar, (2005) 4 - 10 - SCC 350, held that under no circumstances, be treated as body of a human being. They are given separate name and are identifiable as such. 25. Faced with the above situation, learned Counsel for the appellant submitted that as per the prosecution story since the backpack was kept by the appellant on his lap, as such Section 50 of the Act would apply, is devoid of any force in the given circumstances. For the arguments sake if Section 50 of the Act is attracted in this case, even then it stands fully complied with. Because vide option Ext.PW1/A given to the appellant, he was apprised of his right to be searched before a Magistrate or Gazetted Officer to which he consented in writing. PW2 Inspector Prem Dass categorically stated having apprised the appellant of his right to be searched before the Magistrate or the Gazetted Officer and he opted to be searched by him. Therefore, in the aforesaid circumstances even the requirement of Section 50 of the Act, which otherwise, in my opinion was not attracted, also stands fully met. 26. The next limb of the argument of the learned Counsel for the appellant has been that PW1 Hem Chand did not support the prosecution case and other witness Ranjan Kumar was not examined, which makes the prosecution doubtful. - 11 - 27. True it is that PW1 Hem Chand did not wholly support the case of the prosecution and Ranjan Kumar was not examined having been won over by the accused, as per statement made by the Prosecutor. The statement of hostile witness (PW1) was recorded by PW2 Inspector Prem Dass under Section 161 of the Code of Criminal Procedure as stated by him. PW1 Hem Chand, who is alleged to have made the alleged statement, was confronted with it to impeach his credit under Section 155 (3) of Indian Evidence Act. Pertinently, PW1 Hem Chand, a vegetable seller at Dhalpur, admitted having associated by the police at Bhutti-Chowk in the investigation of the case. He admitted that memo of option Ext.PW1/A bears his signatures. He also admitted his signatures on another memo Ext.PW1/B whereby on the search of PW2 Inspector Prem Dass by the accused, nothing incriminating was found. He further admitted his signatures on the sample of seal Ext.PW1/C on a piece of cloth, recovery memo (Ext.PW1/E) with respect to the contraband, on memo of grounds of arrest (Ext.PW1/D); also on parcel Ext.P1 and another sample parcel Ext.P9. This witness had studied upto middle standard. According to him, he appended his signatures on these documents under police pressure that in case of refusal he would be challaned, is quite false. He could have - 12 - even reported to higher authorities to which he did not do so. The above version and conduct of PW1 Hem Chand show that right from his inclusion in the raiding party till the accused/appellant was arrested, was present and he suppressed the truth to favour the accused for obvious reasons. 28. From the above conspectus, it emerges that even in criminal prosecution when a witness is cross- examined and contradicted with the leave of the Court by the learned Prosecutor his evidence cannot, as a matter of law, be treated as completely washed off the record. 29. Therefore, against the aforesaid facts the hostility of PW1 Hem Chand and non-examination of another witness has no bearing on the facts of the case in view of the statements of the official witnesses. Therefore, I proceed to examine whether the statements of the official witnesses are contradictory and shaken the very root of prosecution case. 30. While corroborating the case of the prosecution, PW2 Inspector Prem Dass testified about the exercise of option by the accused and recovery of contraband from him. The contradictions pointed out are that in cross-examination, he stated that the information in question (Ext.PW2/A) was reduced into - 13 - writing in traffic office located in the building of Nagar Panchayat, Kullu and the raiding party was formed about 50 meters prior to the place from the appellant was sitting, whereas PW8 Constable Khub Ram stated having reduced the said information on the parapet besides the footpath, towards the taxi-stand and the investigation was conducted in the traffic office after recovery. He stated that the distance between Bhutti- Chowk and the traffic office was 300 meters. Further, PW7 Tarsem Lal is stated to have handed over the information to Additional S.P. but his Reader (PW6) was not present. Whereas, PW6 Nirat Singh stated that he was present in the office at 6.30 p.m. when the information was passed over. 31. The above contradictions, in my opinion, are not fatal to the prosecution case. The learned trial Court rightly observed that every contradiction appearing in the evidence is not material. The discrepancies are bound to come due to the different perceptions of different persons, failure of memory and to recapitulate the facts in identical manner. The human memory also does not operate like a video recorder, which can reproduce the facts in exact manner. True it is that by and large a witness cannot be expected to possess a photographic memory and to recall all the details of an - 14 - incident on his mental screen. The power of observations also differs from person to person. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. Broadly they have the idea. Thus it is unrealistic to expect a witness to be a human tape-recorder. Otherwise also, when the sequence of events which take place in rapid succession or in a short time, a witness is liable to get confused at a later stage when he is cross-examined at length by the opposite party. These discrepancies appearing now and then in their statements due to piercing cross-examination, are bound to occur. 32. It is by now well settled that the minor discrepancies which do not shake the prosecution case may be discarded and the discrepancies which are due to normal errors or perception or observation should not be given undue importance. The above discrepancies pointed out by the learned Counsel for the appellant, in my opinion, are not material contradictions which affect the credibility of the evidence of the witnesses. (Please also see Leela Ram v. State of Haryana 1999 (9) SCC 525). It is also equally unimportant whether the case property was weighed at the place of recovery of contraband or in the traffic office, which was hardly 15 meters away from - 15 - the place of incident, but it stands fully proved that the alleged contraband was recovered from the possession of the appellant and the appellant/accused was very much present throughout, i.e., from the time of the recovery till he was arrested and there is absolutely no allegation or suggestion that the contraband in any way was meddled with by the police officials. 33. It is also a settled law that the testimony of police official should be treated in the same manner as testimony of any other witness and can be acted upon without any independent corroboration. On the examination of the statements of the official witnesses with respect to the recovery and compliance of the provisions, as discussed above, I find the testimonies of official witnesses worth inspiring confidence. 34. Further, on the scrutiny of the evidence, it stands proved that the samples, remaining bulk and the bag were sealed on the spot as aforesaid and the same were taken into possession vide seizure memo Ext.PW1/D and the case property was deposited with PW4 MHC Manoj Kumari. She entered into the Malkhana register and the case property was also accompanying the sample of seals and other documents and one of the samples was sent through PW5 Constable Pardeep Kumar alongwith NCB forms, sample of seal and other - 16 - documents which was so deposited and it is testified by him that it was never tampered with and the receipt was obtained on the RC Ext.PW4/B, which was deposited with the MHC on return. The report of the FSL testified for Charas as stated above. Even the remaining bulk which was sent to the forensic examination also tested positive showing the resin of Cannabis to the extent of the percentage mentioned above. During the trial of the case PW2 Inspector Prem Dass identified the bulk Ext.P.1 and sample parcel Ext.P9 which was also later examined in the forensic laboratory to be the same which was recovered on the spot from the appellant. These reports of the Forensic Science Laboratory stand connected with the recovered stuff from the appellant. Link in the instant case is complete. Therefore, in my considered opinion, for the reasons stated above, the appellant was rightly convicted and sentenced for keeping in his possession 209.6 grams of Charas, i.e., resin of the Cannabis plant in the recovered stuff on the basis of the judgment rendered by the Division Bench of this Court in Dharam Pal v. State of HP 2007 HLJ 827. 35. No other point urged or pressed before me. 36. The appeal filed by the appellant has no merit, accordingly dismissed. - 17 - 37. In view of the dismissal of the appeal, the appellant is hereby directed to surrender before the learned trial Court on 18th April, 2011 to serve out the sentence as passed by it, failing which the learned trial Court shall take coercive steps to commit the appellant to jail. Appeal stands disposed of. March 15, 2011. (Surinder Singh), J. (rc)