IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 259-DB of 2006 DATE OF DECISION : 11.08.2011 Irshad Ahmad Deva alias Irshad .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE ARVIND KUMAR Present: Mr. Ashwani Gaur, Advocate, for the appellant. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. Appellant Irshad Ahmad Deva alias Irshad, a resident of Kashmir, was tried by the court of Special Judge, Panipat, for an offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act'), on the allegation that on 30.4.2005, 2 Kgs. of Charas was recovered from his conscious possession. Vide judgment and order dated 8.3.2006, the trial court convicted and sentenced the appellant to undergo rigorous imprisonment for a period of twelve years and to pay a fine of ` 1,25,000/-, in default of payment of fine, to undergo rigorous imprisonment for a period of three years more, under Section 20 of the Act. 2. As per the prosecution version, on 30.4.2005, the police party Crl. A. No. 259-DB of 2006 -2- headed by ASI Jai Narain (PW.7) was present at Outer Gate, Bus Stand, Panipat, where the appellant, carrying a rexene bag in his right hand, was seen coming from inside the Bus Stand, Panipat. On having suspicion that he was carrying some contraband in the bag, he was apprehended by the police party, and a notice (Ex.PI) under Section 50 of the Act was served upon him, to which he opted to be searched in the presence of some gazetted officer. Accordingly, Ashok Kumar DSP, Panipat (PW.8) was called, and on his directions given vide Ex.PN, search of the bag carried by the appellant was conducted by ASI Jai Narain, in the presence of HC Rajbir Singh (PW.6) and HC Har Narain, and 2 Kgs. of Charas was recovered from the bag. After separating two samples of 50 Grams each, the residue along with the sample parcels were taken into possession vide recovery memo (Ex.PJ). Ruqa (Ex.PK) was sent to the Police Station, on the basis of which formal FIR (Ex.PK/1) was registered. The appellant along with the case property was produced before Inspector Jai Bhagwan (PW.5), SHO, Police Station City Panipat, who put his seal on the case property. Thereafter, the case property was deposited with the MHC of Police Station City Panipat. One sample parcel was sent to the Forensic Science Laboratory, Haryana, Madhuban. The Assistant Director (General), Forensic Science Laboratory Haryana, Madhuban, vide his report (Ex.PO) opined that the contents of the sample were of Charas. 3. After completion of investigation, the police filed challan against the appellant and charge under Section 20 of the Act was framed, to Crl. A. No. 259-DB of 2006 -3- which he did not plead guilty and claimed trial. 4. In support of its case, the prosecution examined eight witnesses. 5. PW.1 EHC Chand Singh is the formal witness, who delivered the special reports in this case to the Illaqa Magistrate, S.P., Panipat and DSP, Panipat. 6. PW.2 Constable Isham Singh is another formal witness, who took the sample parcel from MHC of the Police Station and deposited the same in the Forensic Science Laboratory Haryana, Madhuban. 7. PW.3 HC Dharam Pal has stated that in terms of the order dated 30.4.2005 (Ex.PD), passed by the Chief Judicial Magistrate, Panipat, the case property was destroyed, after preparing its inventory (Ex.PF) and photograph (Ex.PE). 8. PW.4 Mukesh Kumar, Reader to the Chief Judicial Magistrate, Panipat, has stated that on an application, accompanied by the photograph (Ex.PE) and inventory (Ex.PF), order dated 30.4.2005 (Ex.PD) was passed by the Chief Judicial Magistrate, Panipat. 9. PW.5 Jai Bhagwan Inspector has stated that on 30.4.2005, he was posted as SHO in Police Station, Panipat, and on that day, ASI Jai Narain had produced the appellant before him. He further stated that he sealed the case property with his seal and sent the information/notice (Ex.PH) to the higher authorities. 10. PW.6 HC Rajbir Singh has supported the case of the Crl. A. No. 259-DB of 2006 -4- prosecution regarding the apprehending of the appellant and recovery of the Charas from his conscious possession, by ASI Jai Narain. 11. PW.7 ASI Jai Narain, the Investigating Officer of the case, has also fully supported the prosecution case, and proved all the documents prepared by him during investigation. 12. PW.8 Ashok Kumar, DSP, has stated that on 30.4.2005, after having received a telephonic call from ASI Jai Narain, he along with other official reached at the place of recovery and passed an order (Ex.PN) directing the conducting of search of the bag of the appellant, which led to the recovery of 2 Kgs. of Charas. 13. In his statement under Section 313 Cr.P.C., appellant denied the incriminating evidence appearing against him and pleaded false implication. However, he did not lead any evidence in defence. 14. The trial court, while relying upon the statements of PW.5 Jai Bhagwan Inspector, PW.6 HC Rajbir, PW.7 ASI Jai Narain and PW.8 Ashok Kumar DSP, coupled with the report (Ex.PO) of the Forensic Science Laboratory Haryana, Madhuban, has convicted and sentenced the appellant, as indicated in the first para of this judgment. 15. Learned counsel for the appellant argued that in the instant case, the provision of Section 50 of the Act was not completely complied with, while conducting search of the appellant, as he was not knowing Hindi script, in which the documents were prepared, on he put his signatures in Urdu script. Secondly, he argued that at the time of the alleged recovery, Crl. A. No. 259-DB of 2006 -5- which was effected at a busy place, no independent or public witness was joined, therefore, the alleged recovery from the conscious possession of the appellant has not been established beyond reasonable doubt. Thirdly, learned counsel argued that there are contradictions in the statements of PW.6 HC Rajbir and PW.7 ASI Jai Narain, with regard to the place, from where the appellant was apprehended as well as regarding the fact that the report under Section 57 of the Act was not prepared by PW.7 ASI Jai Narain, the Investigating Officer, but it was prepared by PW.5 Jai Bhagwan, Inspector. 16. While raising the aforesaid arguments, though learned counsel for the appellant tried to convince this court that the prosecution has not been able to prove its case against the appellant, but from the evidence available on record, he could not substantiate his arguments. Since the bag, in which the alleged contraband was being carried by the appellant, was in his hand, therefore, the provision of Section 50 of the Act was not attracted. During the course of arguments, learned counsel for the appellant has very fairly accepted this legal position. Regarding the contradictions, pointed out in the testimonies of both the recovery witnesses as well as PW.3 HC Dharam Pal with regard to reaching of the police party at the place of recovery, distance of the place of recovery from the Police Post, Bus Stand, Panipat, presence of people at the spot and time of deposit of case property with MHC of Police Station City Panipat, the learned trial court found the same to be minor and irrelevant. Learned counsel for the appellant could not Crl. A. No. 259-DB of 2006 -6- point out any illegality or perversity in the appreciation of evidence and the findings recorded by the trial court. Regarding non-association of the independent witnesses also, learned counsel could not make out a case. Faced with this situation and having been unable to point out any illegality in the conviction of the appellant under Section 20 of the Act, learned counsel for the appellant argued that keeping in view the facts and circumstances of the case, the sentence awarded to the appellant be reduced to the minimum prescribed for the offence. 17. We have considered the submissions made by learned counsel for the appellant and are of the opinion that in the present case, the prosecution has fully established the guilt of the appellant beyond shadow of reasonable doubt. The recovery of 2 Kgs. of Charas from the conscious possession of the appellant without any permit or license has been fully established. Therefore, we do not find any illegality in the impugned judgment of the trial court, whereby the appellant has been convicted under Section 20 of the Act. However, keeping in view the facts and circumstances of the case, the quantity of Charas recovered from the appellant, his poor financial condition and the fact that previously, the appellant has not been convicted for the similar offence, we are of the opinion that the ends of justice will be met, if the sentence awarded to the appellant is reduced to undergo rigorous imprisonment for a period of ten years and to pay a fine of ` one lac, in default of payment of fine, to undergo further rigorous imprisonment for a period of one and half years. Crl. A. No. 259-DB of 2006 -7- 18. Consequently, the judgment of conviction of the appellant under Section 20 of the Act is upheld and the order of sentence is modified to the effect that the appellant is sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of ` one lac, in default of payment of fine, to undergo further rigorous imprisonment for a period of one and half years. Accordingly, the appeal is partly allowed. ( SATISH KUMAR MITTAL ) JUDGE August 11, 2011 ( ARVIND KUMAR ) ndj JUDGE