IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.68 of 2007. Decided on: November 09, 2009. _______________________________________________________ Inder Singh and another. ……..Appellants. Versus State of H.P. ……..Respondent. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellants : Mr. Naveen Bhardwaj, Advocate, vice Mr. J.R. Poswal, Advocate. For the respondent : Mr. P.M. Negi, Dy. Advocate General. ____________________________________________________ SURINDER SINGH,J (oral): The appellants have challenged their conviction, passed by the learned trial court, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ‘the Act’, whereby each of them have been sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1 lac, each and in default of payment of fine, they were further ordered to undergo imprisonment for one year each. In short, the prosecution story can be summed up thus. On 28th February, 2005, PW7 SI Dorje Ram was heading a police party and was on patrol duty and for Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - detection of crime in the area of Ropa, falling under Police Station Banjar in their government vehicle. At about 3.40 p.m., the police noticed the appellants coming from the opposite side, each of them having ‘Potalies’ (cloth bags) in their right hands. On seeing the police party, they got nervous. On this, police got suspicious, as such, the appellants were apprehended. There was no independent witness on the spot, therefore, PW7 SI Dorje Ram sent PW6 Constable Om Chand to find out the independent witnesses from Ropa side. He returned after about 20 minutes and brought PW4 Uttam chand of village Tinder and PW5 Anuj Kumar of village Gushiani. Both the witnesses were associated in the search operation. PW7 SI/SHO Dorje Ram asked from the appellants in the presence of the independent witnesses about their identity and expressed his intention to conduct their search and offered himself to be searched by the appellants. On search of the Potali, which was in the possession of appellant Inder Singh, the police recovered two envelopes wrapped in a black Dupatta, containing 3 kgs Charas, out of which two samples of 25 grams each were drawn separately. Remaining Charas was put back in the same envelopes and wrapped in the same black Dupatta, then sealed with four seal producing the impression of English letter ‘B’. Each of the sample - 3 - parcels were also sealed with the same seal. Seal impression of the said seal was also taken on a piece of cloth Ex.PB. NCB forms in triplicate were filled in. The facsimile of the aforesaid seal impression was also taken on each of the said forms, one of which is Ex.PW3/G. Seal after its use was handed over to PW4 Uttam Ram. This process took about half and hour. Thereafter, the Potali, which was being carried by appellant Nirat Singh was also checked. It contained three envelopes, wrapped in a paper. On its further checking, SI/SHO Dorje Ram (PW7) recovered 3.5 Kgs of Charas. Two samples of 25 grams each were separately drawn from the recovered quantity and were sealed in a separate parcel with the seal that producing the impression of English letter ‘T’. Remaining bulk was sealed in the same Potali with the seal aforesaid. Seal impression was also taken on a piece of cloth Ex.PD. NCB forms in triplicate were filled in. The facsimile of the aforesaid seal impression was also taken on the said forms, one of which is Ex.PW3/F. Seal after its use was also handed over to PW4 Uttam Ram. The case property was taken into possession vide memo Ex.PC. Copies of respective seizure memos were handed over to both the appellants. They were apprised of the offence committed by them and were - 4 - arrested. Grounds of arrest were also apprised to them and the memos to that effect were also prepared. Ruqa Ex.PW1/B was sent for registration of the case, on the basis of which FIR Ex.PW1/A was formally registered in Police Station Banjar. PW7 SI/SHO Dorje Ram arrived at the Police Station Banjar alongwith case property and accused persons. The case property was deposited with PW3 MHC Chaman Lal alongwith the samples of seal and NCB forms with respect to the recovered aforesaid. Special report was also prepared and sent to Dy. S.P. Prem Chand within the stipulated time. On 2nd March, 2005, PW3 MHC Chaman Lal sent one sample parcel bearing serial impression ‘B’ and another bearing seal impression ‘T’ alongwith samples of seals and NCB forms vide RC No.19/2005, through PW6 Constable Om Chand to CTL Kandaghat, for analysis. The said sample parcels were deposited by Constable Om Chand aforesaid in CTL Kandaghat and obtained receipt on the RC. On his return, deposited it with PW3 MHC Chaman Lal. On examination of the contents of the sample parcel bearing seal impression ‘B’, the Chemical Examiner found the resin contents 33.10% and on examination of another sample bearing seal impression ‘T’, resin contents to the extent of 34.30% of the - 5 - Cannabis plant, which is the content of Charas. The reports of the Chemical Examiner are Exts.PX and PM respectively. The police prepared the site plan of the place of recovery and also recorded the statements of the witnesses and after completing the challan, it was presented in the court for the trial of the appellants. Both the appellants were charge-sheeted for the offence aforesaid. Both the independent witnesses [PW4 Uttam Ram and PW5 Anuj Kumar] did not support the prosecution case, as such they were declared hostile. However, learned trial Court relied upon the testimony of the official witnesses, thus, convicted and sentenced the appellants as aforesaid, which has been challenged in this appeal. Sh. Naveen Bhardwaj, learned counsel for the appellants has vehemently argued that the independent witnesses did not support the case of the prosecution and the statement of PW3 MHC Chaman Lal and the statements of the other official witnesses are contradictory, which do not inspire confidence. The learned trial court did not consider the statements of the aforesaid witnesses in the right perspective. Therefore, their conviction and sentence is bad in law. Contra, Sh. P.M. Negi, learned Deputy Advocate General, for the State while supporting the judgment of - 6 - conviction and sentence, passed by the learned trial court argued that the minor contradictions, which appeared in the statements of the prosecution witnesses, did not make its case a suspect, otherwise the case against the appellants stand fully proved. We have given our thoughtful consideration to the rival contentions of the parties and have carefully reappraised the evidence on record. It is pertinent to note that both the independent witnesses, i.e. PW4 Uttam Ram and PW5 Anuj Kumar turned hostile as they did not support the case of the prosecution, but significantly, they lend support to the prosecution case on material aspects. PW7 SI Dorje Ram, at the relevant time was posted in Police Station Banjar. On 28th February, 2005, he was on patrol duty alongwith HC Sandeep, C. Amar Singh and PW6 Om Chand. He testified that at about 3.45 p.m., the appellants came from Ropa side. When they reached near the police vehicle and noticed police party, both of them got nervous. Each of them were carrying Potalies, in their right hands. Suspecting that they might be carrying some contraband, it being a secluded place, no independent witness was present, therefore, he (SI Dorje Ram) sent PW6 Constable Om Chand to get independent witness from the site of the village Ropa. He was able to get PW4 Uttam Ram and - 7 - PW5 Anuj Kumar. They were associated as the witnesses of the search. He further testified that on the search of Potli, carried by the appellant Inder Singh, he recovered two envelopes containing 3 Kgs Charas, which was in the shape of small sticks and tikkis (flats) in the presence of witnesses. He also stated that he separated two samples of 25 grams each from the recovered stuff and sealed it in a cloth parcels with seal impression of English letter ‘B’. The remaining bulk was also sealed with the same seal as stated supra. He also took the sample of the said seal on a piece of cloth Ex.PB and filled in NCB forms in triplicate. One of such form was proved by him as Ex.PW3/G. He testified that the seal after its use was handed over to PW4 Uttam Ram and the case property was taken into possession vide memo Ex.PC, which was signed by the witnesses and the appellant Inder Singh in their presence. He further testified that thereafter he also searched the Potali being carried by Nirat Singh appellant and recovered 3.5 Kgs of Charas, out of which two samples of 25 grams each were drawn. Each of the sample parcels were sealed separately with seal impression of English letter ‘T’ and the remaining bulk was sealed with the same seal and taken into possession vide memo Ex.PD. Sample of seal was also taken separately on piece of cloth and filled in NCB forms in triplicate, one of which form is Ex.PW3/F. - 8 - He also stated that both the appellants were apprised of the commission of their offence and they were arrested. Grounds of arrest vide memos Exts. PF and PG were respectively prepared. PW6 Constable Om Chand lend corroboration to the above version of SI/SHO Dorje Ram and during the trial he identified the remaining bulk and one of the sample parcels with respect to each of the appellants during the trial of the case. He stated in his cross- examination that immediately after the apprehension of the appellants, the appellants did not take into possession the Potalies, which were with them and the search was only done in the presence of independent witnesses. PW4 Uttam Ram, a hostile witness, stated that he was taken to the police station by a constable where he signed some papers, which were already written, but in the cross-examination, conducted by the learned Public Prosecutor the seizure memos, were put to him and he admitted his signatures thereon. He was also confronted with his earlier statement recorded by the police under Section 161 Cr.P.C. Similarly PW5 Anuj Kumar stated having signed some papers in the Police Station at the instance of police, but he denied about having witnessed the search, as alleged. He was also confronted with his earlier statement recorded by the police under Section - 9 - 161 Cr.P.C. It is pertinent to note that PW4 Uttam Ram is resident of the same village as that of the appellants whereas PW5 is a resident of nearby village Gushiani. They have obvious reasons to support the appellant to ensure there acquittal. On close scrutiny of the evidence, we find that each of the aforesaid documents bears their signatures right from the search and seizure till the arrest of the appellants. They did not utter even a single word as to why they had signed these documents without going through its contents. It is not their case that they did not know and understand “Hindi” language at all. Even if their testimony is discarded altogether from consideration, we do find enough material from the record to rely upon the statements of the official witnesses regarding the recovery of contraband from each of them. Further, the link evidence, in the case is also complete. PW3 MHC Chaman Lal testified that on 28.2.2005, PW7 SI Dorje Ram deposited six parcels, out of them three parcels were having impression of the seal of English letter ‘B’ and other three were having seal impression of English letter ‘T’. The entire case property was deposited by him in the Malkhana against Sl.No.42 and copy of the entry is Ex.PW3/A was proved by him to be correct. He also stated that on 2nd March, 2005, he sent one parcel sample bearing seal impression ‘B’ and - 10 - another sample bearing seal impression ‘T’ also alongwith sample of seals B and T and NCB forms in triplicate vide RC No.19/05 through Constable Om Chand to CTL Kandaghat and he after depositing the same, obtained the received or original RC. He also proved the receipts of the Laboratory Ext.PW3/B and C with respect to the samples received by them. PW6 Constable Om Chand has corroborated his version in its fair. Further the copy of the special report Ex.PW2/A also contains the above relevant particulars of the case and it was sent by the Investigating Officer (PW7) to Dy.S.P. Kullu and according to PW2 Constable Kashmi Ram, Reader of the Dy.S.P., the special report in this case was received on Ist March, 2005. The original report brought by him contained the endorsement made by the Dy.S.P. and proved its photocopy Ex.PW2/C during the trial to be correct. Confronted with the above position, the learned counsel for the appellants vehemently contended that there are contradictions, appearing in the cross- examination of PW7 SI Dorje Ram and PW6 Constable Om Chand, with respect to the search of the appellants whether they were searched outside the vehicle or inside the vehicle, which creates a doubt in the prosecution case. - 11 - We have also considered this aspect of the case. We do not find that it is worth even noticing for the reasons that there is constant and unequivocal evidence on record to show that the appellants were carrying the Potalies at the relevant time in their right hands, they were stopped by the police and they were searched. Whether the Potalies were searched outside or inside the vehicle, make no difference. But it stands established that the Charas in the aforesaid quantity was recovered from each of them and its samples were taken separately. Case property was deposited in the Malkhana and later sample qua each recovery were sent for its examination, which tested positive. The hostile witnesses have a reason to support the appellants because they are the co-villagers or of the same area. There is absolutely no reason to falsely implicate the appellants in this case. Therefore, in our considered opinion, the official witnesses examined by the prosecution are worth inspiring confidence. As such, we did not find anything to upset conviction of the appellants. In so far as the sentence passed on appellant Inder Singh is concerned, he was found in possession of 3 Kgs stuff. On examining the sample, resin contents of Cannabis plant was found to be 33.10 %, which is content of Charas, which comes to slightly less than one Kg, and falls within the category of “non-commercial - 12 - quantity”. Therefore, in view of the judgment of this Court in Dharam Pal vs. State of H.P. [Latest HLJ (HP) 827] , passed by this Court, the appellant Inder Singh is held guilty of the offence punishable under Section 20(B) of the Act, thus convicted and sentenced for keeping in his possession the “non-commercial quantity” of Charas, as such, his sentence is reduced to five years and to pay fine of Rs.25,000/- and in default of payment of fine, to further undergo imprisonment for a period of one year. However, no interference in sentence is required qua appellant Nirat Singh, who was found and held guilty to keeping in his possession “commercial quantity” of Charas. Ordered accordingly. In result, the appeal is partly allowed to the above extent. Consequently, the appeal qua Nirat Singh is dismissed and in respect of appellant Inder Singh, while maintaining his conviction, we hereby order to reduce and substitute his sentence to the above extent. The Registry of this court is directed to send amended jail warrant, to the Jail Superintendent concerned, in tune with this judgment qua appellant Inder Singh, forthwith. Appeal is accordingly disposed of. Send down the records. (Surjit Singh) Judge (Surinder Singh), November 09, 2009. Judge. (Pds) - 13 -