CRA No. 2021-SB of 2005 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh CRA No. 2021-SB of 2005 (O&M) Date of decision: 9.11.2010 Parkash Chand ......Appellant Versus State of Haryana .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.APS Deol, Sr. Advocate with Ms.Rimplejeet Kaur, Advocate, for the appellant. Mr.Satyavir Singh Yadav, DAG, Haryana. **** SABINA, J. The appellant was convicted for an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act- for short) vide judgment dated 17.11.2005 passed by the Judge, Special Court, Panchkula. Vide order dated 18.11.2005, the appellant was sentenced to undergo rigorous imprisonment for a period of ten years and a fine of Rs.1,00,000/- under Section 20 of the Act. Hence, the present appeal. Prosecution case, as noticed by the trial Court in para Nos. 2 and 3 of its judgment, is reproduced herein below:- “ On 25.2.2004, the police party headed by Surjit Kumar Sub Inspector, was present near Market of CRA No. 2021-SB of 2005 (O&M) 2 village Abheypur, Sector 19, Panchkula for patrolling and crime checking duty in a private vehicle. A secret information was received that the accused Parkash Chand son of Padam Singh resident of village Tuhilla, Tehsil Chopal, District Shimla (HP) was doing the business of selling charas and on that day, he was to come at Amartax Chowk to supply charas to some person. If raid is conducted, he could be caught red handed. As the secret information was reliable, a notice under Section 42 of the Act was sent to Shri Rajesh Duggal, Deputy Superintendent of Police, City Panchkula through Constable Paviter Singh requesting him to reach at the spot. Sub Inspector prepared the raiding party and reached at Amartax Chowk. Nakabandi was started . After some time, a young boy was seen coming from amartax Chowk towards Amartax and that was controlled by the police party on the signal of secret informant. On enquiry that person disclosed his name Parkash Chand son of Padam Singh, resident of village Tuhilla, Tehsil Chopal District Shimla (HP) and he was having green colour bag on his right shoulder. As there was suspicion of having some Narcotic Substance in his bag, a notice under Section 50 of the Act was given to him apprising him as to whether he wanted to be searched before a CRA No. 2021-SB of 2005 (O&M) 3 Gazetted officer or Magistrate and he opted to be searched before Senior Police Officer. Meanwhile, Shri Rajesh Duggal, Deputy Superintendent of Police, City Panchkula along with his staff reached at the spot. He was apprised on the facts of this case. 3. Under the direction of Rajesh Duggal, Deputy Superintendent of Police, search of the bag of the accused was made by Surjit Kumar Sub Inspector and charas wrapped in a polythene paper yellow colour along with Rs.40,000/- cash amount in a white polythene were recovered from his bag. On weighment, it was found 3 kgs charas. Two samples of 25 gms each were separated and both samples and residue charas were converted into sealed parcel sealed with seal SK and RD of Superintendent of Police. Sample seal was also prepared. All the sealed parcels, sample seal and cash amount were taken into police possession, vide separate recovery memo. Seal of Sub Inspector after use was handed over to Head Constable Jasraj whereas, Deputy Superintendent of Police retained his seal with him. Rukka was prepared and it was sent in police station, sector 19, Panchkula through Karam Chand Constable for registration of the case whereupon a case FIR No.33 dated 25.2.2004 under Section 20 of the Act was CRA No. 2021-SB of 2005 (O&M) 4 registered in police station Sector 19, Panchkula.” Learned senior counsel for the appellant has submitted that no reliance could be placed on the report of the Forensic Science Laboratory, Mdhuban (FSL for short) as the percentage of the narcotic substance was not depicted therein. No independent witness had been joined by the Investigating Officer at the time of the alleged recovery although he had allegedly prior information qua the accused carrying contraband. There was delay in sending the sample for chemical examination. In fact, the Investigating Officer had demanded bribe from the appellant and when he had refused to pay the bribe money to the Investigating Officer, he had been falsely involved in this case. The appellant was carrying the sale money as he had sold his apple produce. Learned senior counsel has placed reliance on Manoj Kumar and another vs. State of HP 2008 (3) AICLR 829, wherein in para 6 it was held as under:- “As noticed hereinabove, the total quantity of stuff recovered from the appellants was 1.500 kgs. The Chemical Examiner has found, resin-content in it to the extent of 31.11 per cent. That means the charas/resin content in the recovered stuff was 466.65 grams. This quantity is less than the commercial quantity, as specified vide Notification No.S.O.1055 (E), dated 19th October, 2001, issued by the Central Government, even through it is more than the upper limit of the small quantity fixed by CRA No. 2021-SB of 2005 (O&M) 5 the same Notification. Thus, the appellant is liable to be punished not under Section 20 (C ) of the Narcotic Drugs and Psychotropic Substances Act, as has been done by the trial Court but under Section (B) of the said Act for which no minimum sentence is prescribed. The offence under Section 20 (B) is punishable with imprisonment that may extend to ten years and with fine which may extend to Rs.1,00,000/-. Looking to the quantity of resin/ charas found in the stuff recovered from the appellants, we feel that the ends of justice would be met in case their sentence is reduced from ten years rigorous imprisonment and a fine of Rs.1,00,000/- each, to three years rigorous imprisonment and a fine of Rs.20,000/- each in default of payment of fine rigorous imprisonment for a further period of six months, each. We order accordingly.” Learned senior counsel has further placed reliance on Sudhir vs. State of Haryana, 2008 (4) RCR (Criminal) 385, wherein in para 7 it was held as under:- “It is apparent that in addition to flowering or fruiting tops, the contents of the bags included seeds and leaves of the cannabis, meaning thereby, that the quantity of the actual ganja in the bags was lower than the weight determined by the investigating officer. The percentage CRA No. 2021-SB of 2005 (O&M) 6 of tops in the sample was not determined. A reference to the instructions SO 390 (E) issued while exercising powers under first proviso of Section 8 of NDPS Act, 1985, the Central Government had specified w.e.f.December 13, 1989, as the date from which the prohibition against production, possession, use, consumption, purchase, sale, transport etc. of ganja was to take effect. As per para 1.6 of the said notification, it is observed that the packages/containers should be well mixed to make it homogenous and representative before the sample is drawn in case of opium, ganja and charas etc. A perusal of the FIR indicates that the said exercise had also not been done before taking the samples of the contents of the bags.” Learned senior counsel has next placed reliance on Gaunter Edwin Kircher vs. State of Goa, Secretariat Panji, Goa 1993 AIR (SC) 1456, wherein in para 5 it was held as under:- “The next and most important submission of Shri Lalit Chari, the learned senior counsel appearing for the appellant is that both the courts below have erred in holding that the accused was found in possession of 12 gms. of charas. According to the learned counsel, only a small quantity i.e. less than 5 gms has been sent for analysis and the evidence of PW1 the Junior Scientific CRA No. 2021-SB of 2005 (O&M) 7 Officer would at the most establish that only that much of quantity which was less than 5 gms of charas is alleged to have been found with the accused. The remaining part of the substance which has not been sent for analysis cannot be held to be also charas in the absence of any expert evidence and the same could be any other material like tobacco or other intoxicating type which are not covered by the Act. Therefore the submission of the learned counsel is that the quantity proved to have been in the possession of the accused would be small quantity as provided under Section 27 of the Act and the accused should have been given the benefit of that section. Shri Wad, learned senior counsel appearing for the State submitted that the other piece of 7 gms also was recovered from the possession of the accused and there was no need to send the entire quantity for chemical analysis and the fact that one of the pieces which was sent for analysis has been found to contain charas the necessary inference would be that the other piece also contained charas and that at any rate since the accused has totally denied, he cannot get the benefit of S.27 as he has not discharged the necessary burden as required under the said Section. Before examining the scope of this provision, we shall first consider whether the CRA No. 2021-SB of 2005 (O&M) 8 prosecution has established beyond all reasonable doubt that the accused had in his possession two pieces of charas weighing 7 gms and 5 gms respectively. As already mentioned only one piece was sent for chemical analysis and PW1, the Junior Scientific Officer who examined the same found it to contain charas but it was less than 5 gms. From this report alone, it cannot be presumed or inferred that the substance in the other piece weighing 7 gms also contained charas. It has to be borne in mind that the Act applies to certain narcotic drugs and psychotropic substances and not to all other kinds of intoxicating substances. In any event in the absence of positive proof that both the pieces recovered from the accused contained charas only, it is not safe to hold that 12 gms of charas was recovered from the accused. In view of the evidence of PW 1 it must be held that the prosecution has proved positively that charas weighing about 4.570 gms was recovered from the accused. The failure to send the other piece has givben rise to this inference. We have to observe that to obviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized. If it is not, practicable, in a CRA No. 2021-SB of 2005 (O&M) 9 given case to sent the entire quantity then sufficient quantity by way of samples from each of the packets or pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law.” Learned senior counsel has also placed reliance on Shri Dhan Bahadur vs. State of Himachal Pradesh 2010 (2) Crimes 661 (H), wherein in para 21 it was held as under:- “ In the instant case, applying the above principle of law, the prosecution could only prove beyond doubt that the appellant was found in possession of 50 gms of charas i.e. Two sample parcel packets containing 25 gms of charas each, but as already stated above, the prosecution could not prove as to what were the contents of the remaining bulk. Therefore, once this conclusion is arrived at, it is apparent that the appellant could not have been convicted and sentenced under Section 20(b) (ii) (B) of the Act, but has to be convicted and sentenced for the commission of an offence punishable under Section 20 (b) (ii) (A) of the Act for which maximum punishment provided under the Act is six months and fine not exceeding Rs.10,000/- or with fine and with both.” Learned State counsel, on the other hand, has opposed the appeal. CRA No. 2021-SB of 2005 (O&M) 10 In the present case PW-9 Inspector Surjit Kumar received a secret information on 25.2.2004 that the appellant was doing the business of smuggling of narcotic substance and was on the way to Amartax Chowk for delivery of Charas. A nakabandi was held and an information was sent as required under Section 42 of the Act. Appellant was seen coming towards Amartax factory with the bag on his right shoulder. On suspicion, appellant was apprehended and he was given an option to get his search effected in the presence of a Gazetted officer or a Magistrate. Appellant opted to get himself searched in the presence of a Gazetted Officer. A memo in this regard was prepared. DSP Rajesh Duggal reached the spot and in his presence, the bag carried by the appellant was checked. From the bag, charas wrapped in a polythene paper was recovered. Rs.40,000/- were also recovered from the bag. On weighment, charas recovered from the appellant came to 3 kgs. Two samples of 25 gms each were separated. The samples as well as the residue charas were converted into the sealed parcels and were sealed with seals bearing impressions SK and RD. The case property was then produced before SHO Rajinder Singh, who verified the same and affixed his seal bearing impression RS on the samples as well as the parcel containing residue charas. The case property was deposited with MHC Police Station, Sector 19, Panchkula. Samples were sent for chemical examination and as per the report of the FSL Ex.PH, the contents of the samples were identified as charas. The official CRA No. 2021-SB of 2005 (O&M) 11 witnesses, who were acting in discharge of their official duties have proved the prosecution case. The said witnesses had no enmity against the appellant to falsely involve him in this case. The plea taken by the appellant that Rs.20,000/- were demanded from him and on his refusal to pay the said amount, he had been falsely involved in this case appears to be an afterthought. There is no material on record to substantiate the said plea. In the present case, no independent witness has been joined during the recovery of the contraband. PW9 Inspector Surjit Kumar deposed in his cross-examination that he had called some public persons to join the recovery proceeding but none has joined. In cases involving stringent punishment, it is desirable that an independent witness is also joined by the police party to rule out the possibility of false involvement. However, in the present case from the testimony of the official witnesses it cannot be said that the appellant has been falsely involved in this case. The official witnesses were acting in discharge of their official duties and their testimony qua recovery of the contraband from the appellant could not be shaken during cross-examination. Merely because one more FIR had been registered on the same day by the Investigating Officer qua recovery of charas from Baljeet Singh and Sukhpal does not lead to the inference that the appellant has been falsely involved in this case. There was no reason for the Investigating Officer to plant the charas recovered from Baljeet Singh and Sukhpal on the CRA No. 2021-SB of 2005 (O&M) 12 appellant as the Investigating Officer had no ill will or enmity against the appellant. DW-1 had deposed that he had given Rs.70,000/- to the appellant qua sale of apples but the said witness in his cross- examination deposed that he had not brought any account book to establish that he had given Rs.70,000/- to the appellant on 26.2.2004. Section 2 (iii) (a) of the Act reads as under:- (iii) "canabis (hemp)" means-- (a) charas, that is, the separated resin, in whatever form, whether crude or purified obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;” A perusal of the FSL report shows that the sample was identified as charas. The physical appearance of the sample was greenish brown solid substance. Had the sample been of not pure charas, it would have been so stated in the report. Apparently no neutral substance was present in the sample. The appellant was found in possession of 3 kgs of charas without any permit or licence to carry the same. The recovery of the contraband was effected from the appellant on 25.2.2004 and the contraband was sent for chemical examination on 4.3.2004. It cannot be said that the sample had been sent for chemical examination after much delay. The sample had been received by the FSL with seals intact as is evident from Ex.PH CRA No. 2021-SB of 2005 (O&M) 13 i.e. the report of the FSL. Hence, it cannot be said that any prejudice had been caused to the appellant on account of sending of the sample for chemical examination on 4.3.2004 after the recovery was effected on 25.2.2004. In these circumstances learned trial Court had rightly convicted and sentenced the appellant under Section 20 of the Act. The judgments relied upon by learned senior counsel for the appellant fail to advance the case of the appellant as these are based on different facts. No ground for interference by this Court, in the well reasoned judgment of conviction, is made out. Accordingly, this appeal is dismissed. (SABINA) JUDGE November 09, 2010 anita