IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.583 of 2010. Reserved on: 2.5.2011. Date of Decision: May 25, 2011. _______________________________________________________ Jeet Ram ….Appellant. Versus State of Himachal Pradesh. ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?Yes. For the appellant : Mr. G.R. Palsara, Advocate. For the respondent : Mr. A.K.Bansal, Addl. Advocate General. ____________________________________________________ SURINDER SINGH, J. Appellant stands convicted for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ‘the Act’, by the learned trial Court, in Sessions Trial No.15 of 2009, for having been found in possession of 690 grams of resin of Cannabis plant in the recovered stuff weighing 1Kg. 900 grams, as such sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine `20,000/-, in default of payment of fine to further undergo rigorous imprisonment for a period of three months. The benefit of Section 428 of the Code of Criminal Procedure was also given. 2. Appellant felt aggrieved and dissatisfied with the impugned judgment of conviction and sentence, hence the present appeal. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 3. (i) In short, the prosecution case as is borne out from the evidence on record can be stated thus. On 12.12.2008 PW9 SI/SHO Dharam Singh was heading the patrolling-party and laid a Naka at Sambla Chowk. Around 10.00 am, the appellant was spotted by the police coming on foot from Dam side, when PW9 aforesaid was engaged in conversation with one Khem Singh (not examined). 3.(ii) On seeing police, in a bid to escape, he was apprehended on suspicion. The appellant was given option in terms of Section 50 of the Act. The appellant consented to be searched by the police party present there. On his personal search, the appellant is alleged to have found pasted, a brown colour paper around his waist on his body under his wearing apparels, which contained Charas in the shape of small sticks. The recovered stuff came to be 1 Kg. 900 grams on weightment. It was mixed-up. 3.(iii) Out of the recovered Charas, 25 grams each were separated as samples which were separately sealed with seal impression “D”. The remaining stuff was also separately sealed with the same seal. The case property was taken into possession vide memo Ext.PW1/D. NCB forms in triplicate were filled in, one of which is Ext.PW9/E. - 3 - 3.(iv) The sample of seal was separately taken on a piece of cloth Ext.PW1/E in the presence of witnesses HC Hoshiar Singh and Khem Singh. 3.(v) Ruqa Ext.PW9/A was sent on the basis of which FIR PW9/B was formally registered. 3.(vi) Police also prepared the site plan Ext.PW/9F of the place of alleged recovery. The appellant was arrested. He was informed of grounds of arrest in writing vide Ext.PW1/F. 3.(vii) Case property was deposited with PW7 MHC Inder Dev in Police Malkhana on the same day. The extract of the entry made in the Malkhana register is Ext.PW7/A. 3.(viii) Special report Ext.PW3/A was prepared and was sent to the Dy.S.P. Headquarter, Mandi through PW4 Constable Balbir Singh within the stipulated period. 3.(ix) On 14.12.2008, one of the samples was forwarded to F.S.L., Junga through PW5 HHC Naresh Kumar vide RC Ext.PW5/A. On its deposit in the F.S.L. the receipt was obtained and handed over to MHC aforesaid on his return. 3.(x) On analysis of the sample parcel was found containing 36% Weight in Weight resin of Cannabis plant. 3.(xi) On the receipt of the report Ext.PX, Challan was presented in the Court against the appeal for his trial. - 4 - 4. The appellant was accordingly charge- sheeted, tried, convicted and sentenced as aforesaid. The learned trial Court disbelieved the stand taken by the appellant that the recovery of contraband was effected from a Bihari-boy which was foisted upon the appellant. Having been felt aggrieved by the judgment of conviction and sentence, the present appeal has been filed. 5. Shri G.R. Palsra, learned Counsel for the appellant, vehemently argued that there is non- compliance of Section 50 of the Act as the appellant was not apprised of the option to be searched before the Magistrate or the Gazetted Officer and also that Shri Khem Singh who was cited as an independent witness was not examined. He also argued that there are major contradictions and improvements in the statements of the witnesses which were conveniently ignored by the learned trial Court and also that the link evidence in the instant case is not complete. 6. On the other hand, Shri A.K. Bansal, learned Additional Advocate General supports the impugned judgment of conviction and sentence and submitted that there has been compliance of Section 50 of the Act in its letter and spirit and further that the link evidence is complete. There are no material contradictions worth the - 5 - name appearing in the statements of the witnesses and further that the non-examination of the so called independent witness is not fatal, as the statements of official witnesses are worth inspiring confidence. 7. I have given my thoughtful consideration to the rival contentions of the parties and have meticulously and carefully scanned the evidence on record. 8. In the recent decision of the Constitutional Bench of the Supreme Court in Vijay Sinh Chandubha Jadeja v. State of Gujarat (2011)1 SCC 609, it re-examined its various decisions on the point whether Section 50 of the Act casts a duty on the empowered officer to inform the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said Officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of Section 50 of the Act? 9. The Supreme Court held that it is imperative on the part of the empowered officer to apprise the person intended to be searched of his right under Section 50 of the Act to be searched before a Gazetted Officer or a Magistrate. It is not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing, but it is mandatory that the - 6 - suspect is made aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate if so required by him and this mandatory provision requires strict compliance. Thereafter the suspect may or may not choose to exercise the right provided to him under the said provision. 10. PW9 SI/SHO Dharam Singh stated that while he was engaged in conversation with Khem Singh, he entertained suspicion when the appellant on seeing the policy party tried to escape, as such he was apprehended and his identity was asked to which he disclosed. He identified the appellant to be the same person during the trial of the case. He further stated that the option, Ext.PW1/B, was given in writing to him and he exercised his option and consented to be searched by the police-party on the spot under his signatures. Thereafter he gave his personal search to the appellant vide memo Ext.PW1/C in the presence of the witnesses and nothing incriminating was recovered and thereafter search of the appellant was conducted by him. He admitted in cross-examination that he did not prepare the option memo and consent memo separately, but denied that the consent memo does not bear the signatures of the appellant. - 7 - 11. The perusal of the memo Ext.PW1/B shows that the appellant was made aware of his right to be searched before the Magistrate or the Gazetted Officer. No suggestion was put to PW9 aforesaid in defence that the appellant was not apprised of his right to be searched before the aforesaid authorities. Therefore, in my opinion, the appellant was made aware of the existence of his right to be searched before the Gazetted Officer or the Magistrate if so required by him and hence there has been a compliance of the aforesaid mandatory provision of the Act. 12. Secondly, although, Khem Singh, who was already present on the spot, was not examined, but on this score the case of the prosecution cannot be rejected outright, if the statements of the official witnesses inspire confidence. Khem Singh aforesaid was given-up by the learned Public Prosecutor vide statement recorded by the learned trial Court on 13.9.2010 as having been won-over by the appellant. The appellant to question No.2 put to him in his statement under Section 313 of the Code of Criminal Procedure, denied the presence of said Khem Singh. PW9 SI/SHO Dharam Singh corroborated the prosecution case in toto. PW1 HC Hoshiar Singh is another witness of the alleged recovery. While supporting the case of the prosecution, he testified that after having exercised - 8 - his right the appellant under his signature opted to be searched by the police. Thereafter SHO aforesaid gave his personal search to the appellant vide memo Ext.PW1/C in his presence and in the presence of Khem Singh and HC Khem Chand. Thereafter the appellant was searched by the said SHO and the appellant was found having concealed Cannabis wrapped with Khakhi paper sticking to his body. This fact also finds mention in the recovery memo prepared on the spot. 13. PW2 HHC Ghanshyam was deputed to arrange for the weights and scale, which were brought and the recovered cannabis was mixed-up and weighed. Thereafter two samples of 25 grams each were separated, wrapped and sealed with the seal aforesaid and the remaining bulk was also sealed. The documents were also prepared. He affords corroboration to the statement of the Investigating Officer on the point of recovery. He as well as PW9 both were subjected to long cross-examination. He admitted the existence of 2/3 tea- stalls near the place of recovery, but according to him, he did not notice whether these were open or not. He denied that Gulab Singh, Pradhan was accompanying the policy-party. He as well as PW9 both admitted that recovery of the Charas was also made on the same day - 9 - from a Bihari-boy, but clarified that the aforesaid recovery was made prior to the recovery of the contraband from the appellant. Since the recovery from Bihari-boy was effected by ASI Shakti Chand in his presence, therefore, he was also cited as a witness in that case. He expressed his ignorance whether one Gulab Singh, Pradhan was a witness against the Bihari-boy, who was facing trial before the Juvenile Court. Both these witnesses have identified the recovered Charas during the trial of the case. 14. Both PW1 and PW2 also denied the suggestion that the cannabis allegedly shown to be recovered from the appellant, was in fact recovered from the Bihari-boy and the appellant was falsely implicated in the instant case. 15. PW6 Omi Chand is the owner of the tea-stall from whom the weights and measures were taken by the police to which he admitted. He was also subjected to lengthy cross-examination, but nothing material could be extracted from him which could favour the appellant. 16. After the recovery the case property was sealed as aforesaid by SI/SHO Dharam Singh. All the three parcels were deposited with PW7 MHC Inder Dev in the Malkhana alongwith the sample of seal, NCB forms in triplicate and the copy of seizure memo. Case property was entered into the Malkhana register, the extract of - 10 - which is Ext.PW7/A, which, according to MHC aforesaid is true as per the original brought by him during the trial of the case. He further stated that on 14.12.2008 one of the samples was forwarded to F.S.L., Junga through PW5 HHC Naresh Kumar vide RC Ext.PW5/A and on his returned he deposited with him the receipt of the F.S.L. After examination of sample, the sample parcel was returned to which he admitted to be the same which was sent for analysis. He also identified the case property Ext.P.1 to P.3 and sample seal Ext.P.6 were the same, which were deposited by SI/SHO Dharam Singh. He further stated that ASI Shakti Chand had deposited the case property in FIR No.208 of 2008 on the same day. Therefore, on analyzing the above statement, it is decipherable that although the recovery of some contraband was also effected from the Bihari-boy in FIR No.208 of 2008 which was effected by ASI Shakti Chand and not by SI/SHO Dharam Singh, whereas in the instant case SI Dharam Singh is the Investigating Officer and the Charas was also recovered from the appellant which is separate from that Bihari-boy. Thus, the defence raised by the appellant was rightly rejected by the learned trial Court. 17. Further, PW7 MHC Inder Dev as well as PW5 HHC Naresh Kumar categorically stated that so long they remained Incharge of the case property, it was not - 11 - tampered by them or was not allowed to be tampered by anybody. The sample which was received in the F.S.L. was having three seals of “D”. The seals were found intact and tallied with the seal impression on the NCB form. The sample is stated to have been taken into safe custody. This certificate is signed by the Assistant Chemical Examiner and the result of the examination tested positive for Charas which was having resin to the extent of 36% Weight in Weight. 18. On the scrutiny of the evidence aforesaid the prosecution has been able to prove the complete link in the instant case from the time of recovery till examination of the sample which tested positive for Charas as aforesaid. The false implication of the appellant in the instant case is totally overruled. The testimonies of official witnesses are worth inspiring confidence, therefore, non- examination of Khem Singh is not fatal to the prosecution. 19. Lastly, Shri G.R. Palsra, learned Counsel for the appellant argued that the sample taken by the Investigating Officer was not a representative sample and it was not made homogenous. 20. I have also examined this argument. Official witnesses, as discussed above including PW9 SI/SHO Dharam Singh, categorically stated that before the samples were taken, the recovered stuff was mixed, - 12 - thereafter the same were sealed with seal impression “D”. In his cross-examination a fatal suggestion has been asked to which he admitted that after mixing the stuff he randomly took the sample. Once mixing has been done by the Investigating Officer before picking-up the sample and he randomly took two samples of 25 grams each, the procedure for sampling cannot be faulted when no prejudice has been shown. The samples so taken tested positive for Charas containing the contents of resin to the extent of 36% Weight-in-Weight, is enough to hold that the said sample was of a representative capacity. Therefore, this argument of the learned Counsel for the appellant is also rejected. 21. On the examination of the aforesaid evidence, in my considered opinion, the appellant was rightly convicted and sentenced under Section 20(b)(ii)(B) of the Act for having found in possession of 690 grams of Charas in view of the judgment passed by the Division Bench of this Court in Dharam Pal v. State of HP, Latest HLJ 2007 (HP), 827. The appeal is without merit and is therefore dismissed. May 25, 2011. (Surinder Singh), J. (rc)