IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.42 of 2006 Decided on : August 17, 2009 Pardeep Kumar …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 No. For the Appellant : M/s N.K. Thakur & T.S. Chauhan, Advocates. For the Respondent : Mr. J.S. Rana, Assistant Advocate General. Surjit Singh, J (Oral) Appellant Pardeep Kumar has appealed against the judgment, dated 13th January, 2006, of Presiding Officer (Additional Sessions Judge), Fast Track Court, Mandi, whereby he has been convicted of an offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default of payment of fine to undergo imprisonment for a further period of one year. 2. Case of the prosecution, which led to the trial and conviction of the appellant, as aforesaid, may be noticed. On the night intervening 4th & 5th December, 2004, Head Constable Inder Dev (PW-10), accompanied by Constable Surjeet Kumar (PW-2), Constable Vimal Kant (PW-5), HHC Whether reporters of the local papers may be allowed to see the judgment? …2… Mani Ram and HC Dheeraj Singh, was on patrol duty. He organized a Naka near Pandoh Dam Control Room. Around 1.30 a.m., a Car bearing registration No.HP-24A-2664 appeared from Kullu side. It was got stopped and checked. Appellant Pardeep Kumar was driving the Car. A maroon coloured bag was found lying on the front seat, by the side of driver’s seat. The bag was searched. It contained four packets, in which Charas-like stuff was found. The stuff smelt like Charas. PW-10 HC Inder Dev arranged for scale and weights. All the four packets were weighed together. They weighed 3 kg 250 grams. Four samples, each weighing 25 grams, were separated, one from each packet. Samples were made into separate parcels and sealed with a seal that produced the impression of English letter ‘M’. All the four sample parcels were marked. They were assigned Mark A-1, A-2, A-3 and A-4. Rest of the Charas was sealed in a separate parcel. Case property was produced before the Station House Officer, who resealed the same with his own seal, which produced the impression of English letter ‘E’. Of the four samples, taken from four recovered packets, only two were sent to the Chemical Examiner. They were Mark A- 1 and A-3. Other two samples Mark A-2 and A-4, drawn from two other packets, were not sent to the Chemical Examiner. Chemical Examiner opined, vide report Ex. PW- 8/E, that sample A-1 contained 33.11 per cent and sample A-3 contained 30.78 per cent resin. …3… 3. On receipt of the report of the Chemical Examiner, appellant was challaned. Trial Court charged him with an offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, and on his pleading not guilty tried him. At the end of the trial, appellant was convicted and sentenced, as aforesaid. 4. We have heard the learned counsel for the appellant, as also the learned Assistant Advocate General (Mr. J.S. Rana) and perused the record. 5. Two submissions have been made on behalf of the appellant. The first one is that prosecution evidence proves that only two of the four recovered packets contained Charas, because samples drawn only from two of the allegedly recovered packets had been sent to the Chemical Examiner and that in the absence of any evidence as to the quantity of each packet separately, there cannot be any escape from the presumption that all the four packets contained equal quantity. According to him, if the quantity of two packets, samples from which were sent to the Chemical Examiner, is worked out that comes to half of the quantity of the total stuff, i.e. 1 kg 625 grams. He submits that as per report, Ex. PW-8/E, resin content in one sample was 33.11 per cent and in the other it was 30.78 per cent and thus the total quantity of resin in the two packets, samples of which were sent, comes to 519 grams. …4… 6. We find a great deal of force in the submission made on behalf of the appellant. A Division Bench of this Court in Dharam Pal versus State of H.P. and another (Latest HLJ 2007 (HP) 827), has held that it is the resin of cannabis plant in the stuff, which falls within the definition of Charas, as given in Section 2(iii)(a) of the Narcotic Drugs and Psychotropic Substances Act. 7. Looking to the facts and the circumstances of the case as also the aforesaid position of law, we hold that the total quantity of Charas in the stuff recovered from the appellant is proved to be only 535 grams. 8. Second submission made on behalf of the appellant is that as per testimony of PW-9 HHC Bhim Singh as also PW-7 Constable Mani Ram, the samples were delivered to PW-7 Mani Ram on 7th December, 2004, for being carried to the Chemical Laboratory, but the same were delivered at such Laboratory on 10th December, 2004, and the possibility that during this period of 2-3 days, PW-7 Mani Ram tampered with the samples, cannot be ruled out. The submission is rejected for the simple reason that PW-9 Bhim Singh stated that samples were brought back by PW-7 Mani Ram, because these were not accompanying the NCB forms and such forms were handed over to him on 9th December, 2004 and thereafter he delivered the samples alongwith the NCB forms at the Laboratory, on 10th December, 2004. We see no reason to disbelieve the testimony of PW-9 Bhim …5… Singh to this effect, especially when there is unchallenged testimony of the Investigating Officer of the case, i.e. PW-10 Inder Dev, that he had filled in the NCB forms, on the spot, on 5th December, 2004, itself. His statement is corroborated by report Ex. PW-5/A, which he sent from the spot for formal registration of the case. 9. As a result of the above discussion, we allow the appeal partly. Conviction of the appellant for offence, under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, is converted into conviction for offence, under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act and the sentence awarded to the appellant, by the trial Court, is reduced to four years rigorous imprisonment and fine of Rs.20,000/-, in default of payment of fine to imprisonment for a further period of six months. Appellant has already been in jail for about four years and nine months. So, he is ordered to be set at liberty forthwith, in case his detention is not required in connection with any other case. ( Surjit Singh ), J August 17, 2009(sd) ( Surinder Singh ), J