IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.2 of 1995 Decided on: May 15, 2008. Pawan Kumar …Appellant Versus State of Himachal Pradesh …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 yes For the Appellant : Mr. Shrawan Dogra, Advocate. For the Respondent : Mr. P.K. Sharma, Additional Advocate General. Surjit Singh, Judge (oral) Appellant is aggrieved by the judgment of the trial Court, whereby he has been convicted of offence of possessing opium, punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. First, we may notice the prosecution version. On 28.7.1994, a police party, headed by PW-7 HC Hukam Singh, was present at Main Bus Stand, Mandi, around 8.45 PM, when bus No.HP- 20-0634, which was going from Manali to Amritsar reached there. PW-7 HC Hukam Singh and other police officials accompanying him entered the bus for checking purpose. Appellant, who was one of the passengers travelling by the bus, de-boarded the bus through a door different from the door through which PW-7 HC Hukam Singh and his party entered the bus, and ran towards Sabji Mandi. He was given a chase by PW-7 HC Hukam Singh and the police officials accompanying Whether reporters of the local papers may be allowed to see the judgment? …2… him and was over-powered near the gate of the bus stand. He was having a bag with him. He was told that it was intended to search his person as also the bag, which he was carrying, and that in case he so desired, search could be arranged in the presence of some gazetted officer or a Magistrate. In the meanwhile, PW-8 Dy. S.P. Prem Thakur, who was working as Station House Officer at Police Station, Sadar, during those days, reached the spot. Police Station is at a distance of 150 yards from the bus stand. The Dy. S.P. searched the bag Ext.P-3, which the appellant was carrying. It was found to contain a stuff which looked and smelt like opium. On weighment it was found to be 360 grams. Two samples, each weighing 20 grams, were separated. The samples and the bulk stuff were made into three separate parcels. All the parcels were sealed with a seal, which produced the impression of English letter ‘H’. Specimen impressions of the seal were affixed on a piece of cloth. Search was conducted in the presence of two independent witnesses, namely PW-1 Gulshan Kumar and PW-6 Krishan Lal. PW-7 H.C. Hukam Singh was also present at the time of search. One of the two samples was sent to the Chemical Examiner, who opined that the sample was of opium. 3. Trial Court charged the appellant with an offence, punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act and put him to trial, on his pleading not guilty. On conclusion of the trial, appellant was found guilty and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. one lac; in default of payment of fine to undergo rigorous imprisonment for a further period of two years. 4. This Court accepted the appeal of the appellant, vide judgment dated 26.8.1996, holding that provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act had not been …3… complied with and that the laboratory at Kandaghat, from where the sample had been got analyzed, was not authorised to conduct the test. 5. State went in appeal to the Hon’ble Supreme Court, which set aside the aforesaid judgment of this Court, vide judgment dated 8.4.2005, and remanded the appeal for being decided on merits, holding that Section 50 of the Narcotic Drugs and Psychotropic Substances Act was not attracted to the facts of the case as the opium was recovered not from personal search, but from the bag of the appellant. The Hon’ble Supreme Court also did not agree with the view of this Court that the laboratory at Kandaghat did not have the authority to conduct the test. 6. Prosecution, besides examining PW-8 Prem Thakur, the Dy. S.P/SHO, Police Station, Sadar, who conducted the search, examined PW-7 HC Hukam Singh, who alongwith other police officials chased the appellant, while trying to flee, and over-powered him, and two independent witnesses of search, namely PW-1 Gulshan Kumar and PW-6 Krishan Lal. All these witnesses, except PW-1 Gulshan Kumar, supported the prosecution version. They were cross-examined at length by the defence counsel, but nothing could be elicited by the defence which might discredit them. The three witnesses have corroborated each other. There is no major contradiction, infirmity or inconsistency in their testimony. All of them have testified that the appellant was one of the passengers on board the bus, in question, and that when the police party entered the bus for checking purpose, he (the appellant) deboarded the bus and ran away towards Sabji Mandi and that on being chased by the police party, he was over-powered and opium was recovered from the bag, which he was carrying. We see no reason to disbelieve the testimony of the above named three witnesses of the prosecution. Even the fourth witness, who turned hostile, namely …4… PW-1 Gulshan Kumar, to some extent, corroborated the prosecution version, as he stated in the examination-in-chief itself that on search of the appellant dark coloured stuff was recovered. 7. Learned counsel representing the appellant argued that link evidence, connecting the report of the Chemical Examiner Ext. PF with the recovered stuff, was missing. He pointed out that specimen impressions of the seal, used for sealing the samples, had not been sent to the Chemical Examiner. He further submitted that none of the witnesses, who handled the sample, stated that the seals and the contents of the sample had not been tampered with and, therefore, it could not be said that the sample remained in the same state in which it was separated from the recovered stuff. 8. We have considered the aforesaid submissions in the light of the evidence on record. PW-8 Prem Thakur, the Dy. S.P., stated that he conducted the search and drew samples from the recovered stuff and made the samples and the bulk stuff into three separate parcels and sealed all those parcels with a seal that produced the impression of letter ‘H’ of English alphabet. He also stated that he prepared a memo. Ext. PE of search, seizure and the proceedings conducted on the spot. It is recorded in memo. Ext. PE that specimen impressions of the seal had been affixed on a separate piece of cloth and the seal, after use, was given to PW-1 Gulshan Kumar. 9. PW-7 HC Hukam Singh very categorically testified that specimen impressions of the seal were taken on a piece of cloth and that when he despatched one of the two sample parcels to the Chemical laboratory through PW-3 Constable Sunder Lal, he handed over to him, besides a sample parcel, a piece of cloth on which specimen impression of the seal had been affixed. This part of his testimony was not challenged. No doubt PW-3 Constable Sunder Lal …5… himself did not say that he carried specimen impressions of the seal alongwith the sample parcel, but this omission does not by itself lead to the conclusion that he did not carry the specimen seal impressions alongwith the sample parcel to the Chemical Examiner. The reason is that the Chemical Examiner certified at the foot of his report Ext. PF that seal impressions on the sample parcel tallied with the specimen seal impressions, received separately. Another reason is that in the NCB form signed by PW-8 Dy. S.P. Prem Thakur, it is specifically mentioned that specimen seal impressions have been affixed on a piece of cloth and the number of such impressions is three. 10. PW-7 HC Hukam Singh very categorically stated that the samples and the seal impressions on the sample parcel had not been tampered with by anybody. No cross-examination was directed qua this part of the testimony. So, both the contentions raised on behalf of the appellant, by his counsel, are rejected. 11. No other point was urged. 12. In view of above discussion, we hold that the appeal is without merit. The same is, therefore, dismissed. 13. The appellant was released by this Court on bail, vide order dated 15.12.2005. It is, therefore, ordered that the trial Court shall issue a non-bailable warrant of arrest against the appellant and on his (appellant’s) being produced before it, he will be committed to jail for serving out the remaining term of imprisonment. ( Surjit Singh ), J. May 15, 2008, (ss) ( Surinder Singh ), J.