IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 309 of 2006 Reserved on.: 21.4.2009 Date of decision: 27.4.2009. Tek Singh Appellant. Versus State of Himachal Pradesh Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting?1 Yes. For the appellant: Mr. Anoop Chitkara, Advocate. For the respondent. Mr. R.M.Bisht and Mr. Rajesh Mandhotra, Deputy Advocate Generals. Per Deepak Gupta, J. This appeal is directed against the judgement of the learned Presiding Officer, Fast Track Court, Mandi, District Mandi, in Sessions trial No. 12/2004/76/2005 decided on 30.5.2005 whereby the accused has been found guilty of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and has been sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- . In case of default of payment of fine the respondent-accused has been directed to undergo imprisonment for one year. Briefly stated the prosecution story is that on 19.1.2004 PW-10, Inspector Mast Ram who was at that time Additional SHO, PS, Sadar, Mandi, alongwith ASI Prem Raj, PW-2 H.C Rajiv Kumar, HHC Mohan Lal and PW-4 constable Param Dev were on traffic checking duty at Bindravani Check Post at about 2.00 p.m. 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 At about 3.20 p.m, a bus bearing registration No. HP-33-3381 belong to Anjali Bus Service came from Kullu side. This bus was stopped for checking. PW-10 Mast Ram alongwith PW-4 Param Dev entered the bus from the front door whereas ASI Prem Raj and PW-2 HC Rajiv Kumar entered the bus from the rear door. There were about 25/30 passengers in the bus. The bus was searched. The accused was sitting on seat No.19 having a bag in his possession. On checking of the bag a polythene packet was found which contained charas wrapped in a paper. PW-2 was deputed to bring the weight and scales from a nearby shop. On weightment the charas was found to weigh 3 Kg. 650 grams. Three samples each weighing 25 grams were taken from the charas and were put in three separate parcels, sealed with seal impression ‘B’ at six places. The remaining bulk charas was also put in the same bag and was sealed with seal impression ‘P’ at nine places. The clothes etc, which were recovered from the bag of the accused was also seized. The parcels containing the residue and sample charas were seized vide seizure memo Ext.PW-2/A. The driver of the bus PW-9 Chet Ram and Ravi Kumar, conductor of the bus, were associated with the search. They signed the memos. Sample seal Ext.PW-2/C was taken separately and the same was affixed at Mark-A over Ext.PW-2/A. Other documentation was done and investigation completed. Thereafter, the case property alongwith NCB form, sample seal, recovery memo, etc. were produced before Shri K.D.Sharma, PW-7, SHO Police Station, Mandi, and the statement of the witnesses were recorded. PW-7 recorded the F.I.R. Ext. PW-7/A on the basis of the Ruqua Ext.PW-7/B brought to him by PW-4 constable Param Dev. PW-10 Inspector Mast Ram produced before PW-4 the case property i.e. one parcel containing charas weighing 3 Kg and 570 grams and three parcels containing 25 grams of charas each. All these parcels were sealed with seal impression ‘B’. The said 3 witness resealed the above case property with seal impression ‘P’. He also made an endorsement on the NCB form and affixed the seal impression ‘P’ on the same. Thereafter the case property was handed over to the in-charge Malkhana for keeping in safe custody. The in-charge of the Malkhana PW-5 then sent one sample to the CTL Kandaghat through PW-6. On examination, the sample was found to be of charas and the resin content was found to be 32.01%. After receipt of this opinion, the challan was filed. The accused pleaded not guilty and claimed trial. After trail he has been convicted and hence the present appeal. We have heard Shri Anoop Chitkara, learned counsel for the accused and Shri Ram Murti Bisht, learned Deputy Advocate General for the State. Shri Anoop Chitkara has raised the following contentions:- 1. That the prosecution has failed to show that the bag belong to the accused and there is a doubt that the bag may not have belonged to the accused and he has been implicated only on the basis of suspicion. It has been argued that no person had seen the accused handling the bag and there is nothing to show that this bag belong to the accused. 2. His second contention is that the prosecution case is not correct since there is discrepancy with regard to the time at which the search was conducted. 3. His third contention is that the prosecution has failed to produce the link evidence to show to connect the sample analysed with the samples which were seized. He urges that there is no mention of the deposit of the impression of seal in the Malkhana and therefore, the sample and the report cannot be linked. He, therefore, claims that the samples could have been tempered with, especially when the seal has not been produced. As regards the first point, it would be necessary to refer to the statement of certain witnesses. PW-2 H.C. Rajiv Kumar states that when the search was carried out, the accused was sitting on seat No.19 and was having a bag in his lap. According to him, they presumed that the bag belong to the accused since 4 it was on his lap. PW-4 constable Param Dev has also stated that upon checking of the bus at seat No. 19 accused Tek Singh was sitting on the said seat having a bag on his lap. It is urged that these witnesses are not telling the truth and improved upon their version contended in their statements Mark-X and Y recorded under Section 161 Cr.P.C. wherein there is no mention of the bag being carried in the lap. Shri Chitkara submits that as far as I.O. Mast Ram is concerned, he has only stated that the accused was sitting on seat No. 19 having a bag in his possession. PW-9 Chet Ram, driver of the bus, in his examination- in-chief has stated that the bag was kept on the seat adjoining to the accused and from this bag Charas weighing about 3 Kg. was recovered. In cross- examination this witness states that the bag was under the seat on which that person was seated. All the witnesses have categorically stated that only the accused was sitting on the bench of which seat No.19 formed a part. At the outset, we may note that though PW-2 and PW-4 have been asked in cross-examination whether they had stated to the police that the accused had kept the bag on his lap, they stated that they had made such a statement. They were confronted with their statements Marked ‘X’ and ‘Y’ respectively recorded under Section 161 Cr.P.C in which this fact was not mentioned. The Investigating Officer, PW-10, while appearing in the witness box stated that he had recorded the statements of the witnesses as per their version. However, for reasons best known to the defence, the statements Marked ‘X’ and ‘Y’ were not got proved from this witness. These statements have not been proved and therefore, cannot be looked into. However, assuming that these witnesses have made an improvement, this would not mean that their entire evidence has to be discarded. The evidence of all the witnesses clearly indicates that Seat No.19 was one of the three seats 5 comprised in one bench. It is not disputed that there was no other passenger on the seats adjoining to seat No.19. Even in cross-examination to the witnesses the only suggestion put is that there were some passengers sitting in the seats in front of and behind this bench containing seat No.19. Even if the statement of the Investigating Officer and the driver made in the examination-in-chief are taken into consideration the bag was lying beside the accused. It was not below the seat. One cannot loose sight of the fact that keeping in view various terrorist threats, etc., which have existed for the last many years, no person would keep silent if an unclaimed bag is lying beside him on a seat. It would be reasonable to presume that it is the owner of the bag who is sitting beside the bag. The learned trial Court after discussing the entire evidence has rightly come to the conclusion that the bag was in the conscious possession of the accused. This finding calls for no interference. The reliance placed by Shri Anoop Chitkara, Advocate, on the judgement of the Madhya Pradesh High Court rendered in Shiv Singh vs. State of M.P. 1993(2) Crimes 435, is totally misconceived. In that case the accused was stated to have carried the bag on his lap. He was made to alight from the bus alongwith two of the witnesses. The two witnesses did not support the prosecution case at all and on the basis of this evidence read with other evidence the Court came to the conclusion that there was doubt whether the bag containing the opium was at all on the lap of the accused. The other decision relied upon by Shri Anoop Chitkara, Advocate, has been rendered by the Division Bench of this Court in Daulat Ram vs. State of H.P., 2008(1) Crimes 489 (H.P) . The facts of the case were totally different. In that case the conductor, who was the independent witnesses, had stated that the Investigating Officer after bringing down the accused and the bag from the 6 bus made inquiries from other passengers traveling in the bus as to whom the bag belonged. The Court, therefore, held that this itself cast a doubt on the prosecution version because if the bag had been found on the lap of the accused there was no need for making any inquiry from the other passengers about the ownership of the bag. In the present case, two of the witnesses have clearly stated that the bag was on the lap. Even if, this portion of their statements is to be discarded, then also there is sufficient evidence to show that the bag was lying on the side of the accused. It is important to note that in the cross-examination to the prosecution witnesses no suggestion was given to them that some other person was sitting on the three seater bench of which seat No. 19 was a part. The only suggestion which has been given is that there were passengers sitting in the seats ahead and behind. It is, therefore, apparent that other than the appellant no other person was sitting on the bench. In the statement of the accused recorded under Section 313 Cr.P.C. when confronted with the evidence of the bag being in his possession the appellant has simply denied the suggestion. He has not stated that the bag was found but belonged to somebody else. For the reasons given here-in-above, we are of the considered view that the prosecution has proved beyond doubt that the bag belonged to the accused and the charas was recovered from the exclusive and conscious possession of the accused. Shri Chitkara, has then argued that in the daily diary report Ext.DA, it has been mentioned that the police party left the police station at 2.00 p.m. Admittedly, it takes about 15-20 minutes to reach the check post. All the witnesses have stated that they remained for one and half hours at the spot before the bus came. He, therefore, submits that the version of the police that the search was conducted at 3.20 p.m does not appear to be true. It is true that 7 PW-3 Mahinder Singh, from whom this scale had been brought has stated that at about 2 to 2.30 p.m the police came to his shop. Similarly, PW-9 Chet Ram, driver of the bus, has also stated that the bus reached the check post at 2.30 p.m. According to the police, the bus was checked at 3.20 p.m. There is only a minor variation in the time. It is not such a serious variation as to cast a doubt on the prosecution version. When the statements of the witnesses are recorded after a long period of time there are bound to be some minor discrepancies. The discrepancy is very minor in nature and is not fatal to the prosecution case. It was next contended by Shri Chitkara that there is no evidence to show that the seal impressions had been sent with the samples to the CTL, Kandaghat. He has relied upon the statement of PW-5 in which there is no mention of the receipt of the seal impressions or the deposit thereof in the Malkhana. He has also placed reliance on the abstract of the Malkhana Register in which there is no mention of the deposit of the impressions of the seal. No doubt, that in these documents there is no mention of the specimen seal. However, the fact remains that all the witnesses including PW-5 and PW-6 have clearly stated that the sample seal impressions was sent alongwith samples and deposited at CTL, Kandaghat. The CTL has affixed a stamp wherein it is mentioned that the sample was found intact and unbroken and the seals on the samples tallied with the specimen impressions of the seal. Mere non mentioning of the sending of the sample seal in the Road Certificate would not belie the oral statement of the witnesses duly corroborated by the report of the public analyst. Reliance placed by Shri Chitkara on a judgement of a Division Bench of this Court in Mahant Bal Giri and another vs. State of H.P. 2008(1) Shimla 455, is totally misplaced. The facts of the case were totally different. In that case none of the witnesses had stated that the sample seal impressions were carried to the CTL 8 Kandaghat. In that case, the column No.6 of the NCB form did not carry impression of the seal against column No.9. In the present case, the NCB form contains the impressions of both the seals used by the I.O. as well as the SHO. In that case while taking the view that there was doubt with regard to the link evidence another factor which had weighed with the Court was that whereas according to the prosecution the sample contained three seal of seal ‘H’ it was found that it had five seal as described in NCB form. In the present case, PW-10 has clearly stated that case property alongwith NCB form, sample seal and recovery memo were produced before Shri K.D.Sharam, SHO. Shri K.D.Sharma, PW-7 states that he re-sealed the case property with seal impression ‘P’ and then he endorsed as seal impression ‘P’ on the NCB form. PW-5 has stated that he had handed over one sample Marked A-1, alongwith NCB form, sample seals of seal impressions ‘P’ and ‘B’ and copy of F.I.R. to HHC Dharam Chand. Dharam Chand states that PW-5 had handed over one sample of charas alongwith NCB form, copy of F.I.R and sample of seals and he had deposited these with CTL, Kandaghat. There is no reason to disbelieve the statement of these witnesses. The mere non-mentioning of the sample seals in the Road Certificate of the Malkhana Register will not shatter the prosecution case especially when all the witnesses have clearly stated this in their statements and their statements have withstood the test of cross-examination. It was lastly urged by Shri Anup Chitkara, Advocate, that the sentence imposed is unduly/harsh. He urges that the accused is a poor man and the fine may be reduced. Keeping in view the large quantity of charas found in the possession of the accused there can be no sympathy with him. This prayer is accordingly rejected. 9 In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. (Deepak Gupta), J. April 27, 2009 ( V.K.Ahuja ), J. ™