IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 393/2009 Date of decision: 14.3. 2011 Mapha Bhai …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . yes For the Appellant: Mr. R.S. Jamalta Advocate. For the respondent : Mr. A.K. Bansal, Addl. Advocate General. Surinder Singh, J (Oral) Appellant was charge-sheeted, convicted and sentenced by the learned Special Judge (F.T.C), Mandi in Sessions trial No. 3 of 2009 dated 29.5.2009 for the offence punishable under Section 20 (B) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short “the Act” for allegedly possessing 700 grams of charas, to undergo imprisonment for a period of four years and to pay a fine of ` 20,000/- and in default of payment 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - of fine to further under rigorous imprisonment for six months. The appellant was also given benefit under Section 428 of the Code of Criminal Procedure. 2. In the present appeal, the appellant has assailed his conviction and sentence aforesaid. 3. Shri R.S. Jamalta vehemently argued that there is contravention of the provisions of Section 50 of the Act and further that there are material contradictions appearing in the statement of the prosecution witnesses with respect to the interception and recovery of the alleged contraband. He further argued that in any case the sentence imposed by the learned trial Court is excessive and not commensurate to the percentage of the resin found in the recovered stuff. Whereas Shri A.K. Bansal, learned Additional Advocate General supported the judgment impugned being legally and factually sustainable. 4. The factual matrix of the case can be stated thus. On 26.10.2008, PW9 ASI Bhim Sen, Incharge of Police Post Pandoh was on traffic checking and patrolling duty along with PW1 Bhup Singh, PW2 HC Surinder Singh, HHC Nathu Ram and constable Ram Dass. They were present at the place known as “Nine Miles”. When police party - 3 - moved towards Pandoh, on the way, near Sayog Nullah, they intercepted the appellant coming from Pandoh side. He was carrying a bag hung on his right shoulder. On seeing the police party, he tried to escape but he was caught hold at a distance of about 5/6 feet from the place where he was spotted. His identity was asked. The appellant was a resident of Jahangir Puri (Delhi). Since it was a uninhabited place, no independent witness was available. Consequently, HC PW1 Bhup Singh and PW2 HC Surinder Singh were associated. During the search of the bag it contained the wearing apparels of the appellant and also a packet of polythene (green in colour) Ext. P1 which contained 700 grams of charas. The police separated two samples of 25 grams each and sealed it with seal impression ‘T’ at six places. Both these samples were marked as A-1 and A-II. The remaining stuff was also sealed with same seal. 5. The case property was taken into possession vide seizure memo Ext. PW1/A along with wearing apparels Ext. PW6/A-1 and A-16 vide memo Ext. PW1/C. The NCB forms in triplicate one of which Ext. PW3/E, were prepared on the spot. - 4 - 6. The Investigating Officer aforesaid also prepared the site plan Ext. PW9/A and ruka Ext. PW3/A was sent for registration of the case which culminated into FIR Ext. PW3/B. 7. The personal search of the accused was conducted and articles found from the possession of the appellant were taken into possession vide memo Ext. PW1/D. The case property was produced before the Station House Officer who re-sealed the same with seal impression ‘Y’ and memo Ext. PW3/B was also prepared. Facsimiles of seal used on the spot as well as at the time of re-sealing were put on the NCB forms. Sample of seals used were also taken on a separate piece of cloth and the case property was deposited with PW4 HHC Nand Lal who was at that time, Incharge of the Malkhana. He made its entry in the Malkhana Register. The abstract of the Malakhana Register is Ext. PW3/F. 8. On 28.10.2008 one of the samples was sent through constable Khem Chand PW8 along with sample of seals, NCB forms, copy of the FIR to FSL Junga vide RC No. 322 of 2008. On its receipt, in the laboratory, receipt was obtained on the RC and deposited with MHC on the return of the said constable. - 5 - 9. The Special report was sent to the officer superior within the statutory period. 10. On examination of the sample so received in the Forensic Science Laboratory, it tested positive for charas. As per report Ext. PW9/E, it contained resin to the extent of 34.11% W.W of the cannabis plant. 11. After completing the investigation, police presented the challan against the appellant in the trial Court for trial for the offence aforesaid. At the end of the trial, he was convicted and sentenced as aforesaid. 12. Against the aforesaid facts of the case, at the very outset, I would like to say that Section 50 of the Act is not applicable, since the recovery of the alleged contraband is from the bag Ext. P5 to which the appellant was carrying on his right shoulder. Section 50 of the Act only applies to the recovery of the contraband from the personal search as held by the apex Court in Ajmer Singh versus State of Haryana (2010) 3 SCC 746. Therefore, the first contention raised by the learned counsel for the appellant that there has been non-compliance of Section 50 of the Act is devoid of any merit as such rejected. - 6 - 13. The next contention is that the police did not join the independent witnesses at the time of search of the appellant, which creates doubt in the probity of the prosecution case. 14. I have also examined this point against the above facts. The Investigating Officer has testified that it was uninhabited place where the appellant was apprehended but even otherwise the provisions of Section 100 (4) of the Code of Criminal Procedure also is not applicable in the instant case whereby the police is required to associate two respectable independent witnesses to witness the search as the recovery is not from the house or enclosed place but from the open place. Otherwise also, the case of the prosecution can also not be rejected out right on the ground of non- inclusion of the independent witnesses. But the statements of the official witnesses have to be closely and cautiously examined. The learned counsel for the appellant half heartedly pointed out following points of contradictions in the statements of the prosecution witnesses. (i) Investigating Officer stated that they had intercepted the appellant at the bridge of nullah Sayog whereas PWs 2 and 3 stated that he was - 7 - intercepted at the said place but at a distance of about 3 or 4 feet away. (ii) PW2 H.C. Surinder Singh stated that they started from the police Station at 3.30 p.m. and the appellant was intercepted at 4.45 p.m. whereas PW1 HC Bhup Singh stated that he remained with the Investigating Officer till 7 p.m. Sicne ruka was sent to the Police Station earlier but there was no mention in the ruka regarding his presence till 7 p.m. The delay in sending the ruka also cast a doubt. 15. I have examined the above points. Of course, there appears to be some contradictions with respect to the apprehension of the appellant but the distance where the accused/appellant was intercepted/apprehended by the police varies from 3 to 8 feet which is of no consequence. In so far as sending of ruka to the Police Station is concerned, it was sent through HHC Nathu Ram not HC Bhup Singh and it was received at 6.30 p.m., in the Police Station, i.e., after taking into possession the case property from the appellant on the spot and the distance between the spot and the Police Station is 16 km. as indicated in the FIR. Therefore, the registration of the case at 6.30 pm. in the Police Station is not fatal to the prosecution. - 8 - 16. The recovery of the contraband from the appellant stands proved. The official witnesses could not be shattered on that account. They have fully supported the prosecution case and the contradictions mentioned above, are of very minor nature which do not go to the root of the case. After the recovery, the samples were separated, packed and sealed with the seal impression ‘T’ and the sample of seal was also taken on a separate piece of cloth Ext. PW1/B. On the same day, case property was produced before the SHO in the Police Station. He re-sealed the property with the seal impression ‘Y’. A memo Ext. PW3/D to this effect was prepared. The sample of seal so used was also taken on the reverse side on Ext. PW1/B and was exhibited during the trial as Ext. PW3/C. Thereafter the case property was deposited in the Malkhana along with sample seal, NCB forms as testified by PW4 the then Incharge of the Malkhana. He proved the abstract of the Malkhana Ext. PW3/F to be correct according to its original to which he had brought during the trial of the case. One of the samples was taken by Khem Chand (PW8) for its deposit in the FSL which fact has been supported by him during the trial of the case. He also testified that the case property remained - 9 - safe and intact during the period it remained in his custody. The sample so deposited on analysis was found to have resin cannabis plant to the extent mentioned above which falls within the definition of charas. Thus, the link evidence in the instant case is also complete. 17. On the critical analysis of the evidence aforesaid, I find the statements of the witnesses confidence inspiring and was rightly believed and acted upon by the learned trial Court. Therefore, no fault can be found in the conviction of the appellant for the offence aforesaid. 18. In so far as the sentence is concerned, it appears to be a bit on the higher side as the resin content in the recovered stuff of 700 grams was 34.11% which comes around 2.38.II grams say about 239 grams. The learned trial Court sentenced the appellant to undergo imprisonment for a period of four years. Thus the proportionate sentence was required to be awarded and the sentence of 4 years appears to be excessive. Therefore, the substantive sentence is hereby reduced to 2 and a half years (2½) instead of four years imposed by the learned trial Court, of course without, disturbing the fine and default clause. Ordered accordingly. - 10 - 19. The appeal sans merit as such dismissed but for the modification in the sentence to the above extent. The learned trial Court is hereby directed to send the modified jail warrants to the Superintendent Jail concerned in conformity with this judgment. March 14, 2011 (Surinder Singh), (cm) Judge