1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 417 of 2005 Decided on: 29.04.2008 ____________________________________________________________ Nar Bahadur. ……..Appellant. Versus State of H.P. . ……..Respondent. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Ms. Kaninika Bhanot, & Mr. Dinesh Bhanot, Advocate. For respondent : Mr.P.K.Sharma, Additional Advocate General. ______________________________________________________________ SURINDER SINGH, J. Appellant is feeling aggrieved and dissatisfied by the judgment of conviction, passed by the learned trial court, under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short “the Act”, allegedly for possessing 4 k.g. of Charas and sentenced him to undergo rigorous imprisonment for a period of 14 years and to pay a fine of Rs.1,40,000/- and in default of payment of fine to further undergo imprisonment for a period of four years. The appellant was put on trial, on the allegation that on 16th March, 2004, police party headed by S.I. Ram Saran (PW7) was on patrolling in Manikaran area and put a nakkabandi towards villages Ghatigar and Barshaini. During the intervening night of 16-17th March, 2004 at about 5.30 a.m. appellant was spotted at the place known as Whether reporters of the Local papers are allowed to see the judgment? .yes. 2 “Kukri-kalo” coming on foot from the side of village Barshaini carrying a gunny bag on his back. On seeing the police party, he got perplexed. SI. Ram Saran asked identity of the appellant. Since the place was isolated and no independent witness was available, therefore, in the presence of HHC Om Parkash (PW5) and Constable Gurdial Singh, S.I. Ram Saran gave an option to the appellant, apprising his right to be searched either before the Magistrate or a competent gazetted officer in writing vide memo Ex.PW5/A. The appellant agreed to give his search to the police S.I. Ram Saran gave his personal search to the appellant and to this effect memo Ex.PW5/B was prepared and thereafter conducted search of the gunny bag (Ex.P-4) to which the appellant was carrying and found two card-board boxes and two polythene packets each wrapped with tape, kept beneath the blue-black polythene cover. All the four packets were opened in the presence of aforesaid witnesses, which contained charas in the form of balls and chocolates. The contents of all the aforesaid four packets were mixed up and weighed, which came out to be 4 k.g. Out of which, two samples of 25 grams each were separated and sealed in two different packets with the seal impression of English letter “T”. The remaining bulk charas alongwith polythene covers, two polythene envelops, two card board boxes and gunny bag were packed in separate parcel and sealed with the same seal. PW7 the Investigating Officer S.I. Ram Saran filled up N.C.B. Forms in triplicate, one of which is Ex.PW4/B. Sample of seal Ex.PW5/C was taken separately on a piece of cloth and the seal after its use was handed over to HCC Om Parkash (PW5). The case property was taken into possession vide Ex.PW5/D and ruqua Ex.PW7/A was sent for the registration of the case to police station, Kullu, through Constable Gurdial Singh (PW6), on the basis of which a formal FIR (Ex.PW9/A) was recorded. S.I. Ram Saran prepared the site plan 3 Ex.PW-7/B and recorded statement of the witnesses. The appellant was arrested and informed about the grounds of his arrest. After recovery of the contraband, as aforesaid, the case property along with N.C.B. Forms were produced before the Inspector/ S.H.O. Police Station, Kullu, who re-sealed the case property with his seal impression of English alphabet “H” and deposited it with M.H.C. Jia Lal (PW4). PW4 Jia Lal recorded its entry Ex.PW4/A in the relevant register. Thereafter, he sent one of the sample to C. T. L. Kandaghat for the purpose of analysis along with N.C.B. form through constable Bhadur Singh (PW2) vide R.C. Ex.PW4/B. Special report was also sent within the stipulated time to the Deputy Superintendent of Police, Headquarters. As per the report of the Chemical Examiner Ex.PA, the sample sent for analysis was found to be that of charas. The challan was presented in the court for trial of the appellant. Finding a prima-facie case, appellant, was charge-sheeted under section 20 of the Act. To prove its case, the prosecution examined nine witnesses in all. The appellant was also examined under section 313 of the Code of Criminal Procedure. His case was of denial simpliciter. The appellant did not lead any defence when called upon to do so. At the end of the trial, he was convicted and sentenced as aforesaid. The impugned judgment of conviction and sentence has been challenged on the ground that the learned trial court did not appreciate the evidence on record in its right perspective. There were material contradictions on record, which renders the prosecution case highly doubtful. Heard. Ms. Kaninika Bhanot, learned counsel appearing for the appellant took us through the evidence on record and tried to point out 4 the contradictions appearing in the statements of the prosecution witnesses and forcefully argued that the prosecution case does not inspire confidence. The manner in which the recovery of alleged contraband was effected in absence of independent witnesses renders the entire prosecution case suspicious. Alternatively it is argued that keeping in view the contents of charas in the recovered quantity, the sentence is too harsh and may be reduced to its minimum. Contra, Mr. Sharma, learned Additional Advocate General while supporting the impugned judgment has argued that minor contradictions are bound to occur owing to time. According to him, the recovery stands proved and there is no error in the judgment, the sentence is adequate passed, therefore, the appeal deserves to be dismissed. We have given our thoughtful consideration to the rival contentions of the parties and have revaluated the evidence on record. First of all we would like to refer to the statement of S.I. Ram Saran (PW7) the Investigating Officer. While supporting the prosecution version, he has stated that they had put a nakka at a place known as Kukri-Kelo, which was an isolated place. At about 5.30 a.m. he had noticed the appellant coming from the side of Barshaini village carrying a gunny bag on his back. On seeing the police present there, he got perplexed. He inquired about the identity of the appellant. Thereafter, the appellant gave his name and address. Since associating of local witnesses was not feasible due to time and place, he associated HHC Om Parkash and Hem Raj as witnesses and gave an option in writing Ex.PW5/A to satisfy the provisions of Section 50 of the Act, apprising his legal right to be searched before the Magistrate or Gazetted Officer. The appellant did not exercise his option and consented himself to be searched 5 by the police party. On searching the gunny bag, which the appellant was carrying, two card boards and two polythene packets, each wrapped with tape, were found kept in a black and blue polythene cover, it contained charas in the shape of balls and chocolates. The recovered charas was weighed and out of that two samples of 25 grams each were separated and sealed in two different parcels by putting seal impression “T”. Remaining bulk of charas Ex.P-3 along with polythene cover Ex.P-7, two polythene envelops Ex.P-5, two cardboard boxes and gunny bag were packed and sealed in different parcel by putting seal impression “T”. NCB form in triplicate were filled in by him. The seal after its use was handed over to PW5 and the case property was taken into possession vide recovery memo Ex.PW5/B, copy of which was provided to the appellant. He was arrested and grounds of arrest were informed to him and a ruqua for registration of the case was sent. The case property was produced before the Inspector/ S.H.O. of Police Station, Kullu, which was again resealed with seal impression “H” and deposited with the HHC Jia Lal. In the cross-examination, he has stated that the alleged place of recovery was at a distance of nine k.m. from Manikaran towards Barshaini. Further he stated that they went on foot up to Sangra and thereafter they took a lift in a private jeep and reached “Kukri Kalo” at about 3.40 a.m. The accused-appellant was spotted at about 5.30 a.m. It is denied by him that the gunny bag, containing charas, was found abandoned in the bus, which left Manikaran at about 4.40 a.m. and that real culprit was not traced and a false case was foisted upon the appellant. HHC Om Parkash (PW5) has corroborated his version. He has stated that the gunny bag besides containing two card boxes, it also contained polythene envelopes of blue and white colour containing charas. 6 He also identified his signatures on the recovery memo Ex.PW-5/E and also identified signatures of Hem Raj, the another witness. In his cross-examination he has stated that initially the police party patrolled Manikaran Bazar for about one hour and thereafter left for Barshaini side by taking lift in a jeep and reached Kukari Kelo at 2.30 a.m. and the appellant was apprehended at 5.30 a.m. Dinesh Kumar, Deputy Superintendent of Police (PW9) has stated that a ruqa was received through constable Gurdial Singh in the police station, on the basis of which FIR No.156 (Ex.PW9/A) was formally recorded. On the same day at about 11.45 a.m. SI Ram Saran (PW7) produced three sealed parcels, sealed with four impression of seal “T” allegedly containing charas along with the NCB forms in triplicate with sample seal. He resealed the said parcels with seal impression “H” and filled in coloum No. 9 to 11 of the NCB form, which bears his signatures as well as facsimile of seal “H”. According to him, he handed over the case property along with the NCB forms to MHC Police Station, Kulu, at 12.05 p.m. According to PW4 M.H.C. Jia Lal, on 16th March, 2004 the Investigating Officer had deposited with him three parcels, sealed with four seals each of “T” and “H” on each parcel along with sample seals NCB form in triplicate and other documents at 12.05 p.m. which was entered in the Malkhana register, copy of which is Ex. Ex.PW4/A. He has further stated that on 17th March, 2004 he sent one sample of parcel with four seals along with NCB form in triplicate and other relevant documents vide RC No.83/04 to C.T.L. Kandaghat for its chemical analysis through constable Bahadur Singh No.167. and on his return he produced the receipt Ex.PW2/A. The witness has further stated that so long the case property remained with him, the same was not tampered with by any one. 7 He identified the parcels Ex.P-1 and Ex.P-2. In the cross-examination, the witness has stated that the sample and documents including NCB forms were handed over to Constable Bahadur Singh (PW2) in loose envelopes. Bhadur Singh has corroborated his version. The Chemical Examiner vide its report Ex. PA opined that the sample contained resin 32.89% which is a content of charas. In the facts and circumstances of the case, there is a consistency in the statements of the prosecution witnesses. They have spoken in voice regarding the recovery of the contraband from the possession of the appellant. The appellant could not probablise his defence. Further the contention of the learned counsel for the appellant that non-association of independent witnesses during the search renders the recovery redundant is worth rejecting, for the reason that the police had conducted the search of the appellant at an open place, therefore, the provisions of section 100(4) Cr.P.C. are not attracted, otherwise also the Investigating Officer has offered the cogent explanation that it was a secluded place and there was no habitation in and around the place of recovery, therefore, no independent witness could be associated. Secondly, there is a minor contradiction about the colour of the polythene bags appearing in the statement of Investigating Officer (PW7) and HHC Om Parkash (PW5). Former says that it was of black and blue colour and the later say that it was of blue and white colour. The aforesaid witnesses had identified these envelops in the court to be the same during the trial and there is no cross-examination disputing their statements, therefore, the aforesaid contradiction would not make the prosecution case doubtful. Thirdly, PW6 Gurdial Singh has stated that the appellant was seen from a distance of 5-6 yards whereas PW5 HHC Om Parkash stated 8 that he saw the appellant from a distance of 4-5 feet. In fact the individual perception and calculation differ from man to man. These are only based on wild speculations. Each individual applies his own method to calculate the distance. Therefore, it is not a major contradiction, on which the prosecution case can be thrown out. Fourthly, although Om Parkash (PW5) has stated that after patrolling in Manikaran Bazar, they went straight to “Kukri Kelo” in a jeep and reached there at 2.30 a.m. whereas the Investigating Officer has stated that up to Sangra they went on foot and thereafter they took lift in a private jeep and reached “Kukri-Kalo” at about 3.40 a.m but both the witnesses are consistent, so far as spotting of the appellant at 5.30 a.m. and seen him carrying a gunny bag on his back is concerned. These minor contradictions do not go to the root of the case, so as to make the prosecution case a suspect. Thus, in our considered opinion, the appellant could not cause any dent in the prosecution case, therefore, we do not find any material to upset the findings of conviction passed by the learned trial court. Thus we uphold the conviction of the appellant, legally and factually correct. As far as sentence passed against the appellant is concerned, though he was found carrying four kilograms of the alleged contraband but as per report of the chemical examiner Ex.PA sample contained 32.89% of resin and there is no report about the rest of the contents. A Division Bench of this Court in Dharam Pal versus State of Himachal Pradesh: Latest HLJ 2007 (HP) 827, has held that only the resin content of the stuff is charas. In the absence of the report of Chemical Examiner about the rest of the contents of the stuff, the quantity of the charas based on the percentage of the resin found therein by the 9 Chemical Examiner, is required to be worked out and the appellant- accused is to be held responsible for possessing charas only to the extent, the stuff contains the resin content in it. Applying the ratio of this judgment, in our considered opinion, the appellant was having in his possession the aforesaid contraband to the extent of 1 killo 283 grams which is of course a “commercial quantity” and falls within the mischief of section 20(C) of the act. Therefore, in the circumstances, the ends of justice will be met if minimum sentence under the law is passed against the appellant. Accordingly, we reduce the sentence to 10 years rigour imprisonment and to pay a fine of Rs.1,00,000/- and in default of payment of fine, the appellant shall further undergo imprisonment for a period of one years as against 14 years and a fine of Rs.1,40,000/- passed by the trial court. Ordered accordingly. The appeal is partly accepted. The trial court is hereby directed to send the modified warrants in terms of the above orders to the jail concerned forthwith. (Surjit Singh),J. April 29, 2008 (Surinder Singh),J. (D)