IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.62 of 2011. Judgment reserved on: 15.6.2011. Decided on: June 29, 2011. ____________________________________________________________ Chottu Ram. ……..Appellant. Versus State of H.P. ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. H.R. Bhardwaj, Advocate. For the respondent : Mr. A.K.Bansal, Addl. Advocate General. _________________________________________________________ SURINDER SINGH,J : Appellant has challenged his conviction and sentence passed by the learned trial Court in case RBT No.23-AR/3 of 2009/2010, on 19.3.2011, whereby he has been convicted for the offence punishable under Section 20 (b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act, in short ‘the Act’, and sentenced him to undergo rigorous imprisonment for a period of 5 years and to pay a fine of `50,000/- with default clause and also to pay a fine under Section 192 of the Motor Vehicles Act, for not having in his possession the Registration Certificate, Insurance and Whether reporters of the Local papers are allowed to see the judgment? - 2 - Driving Licence. The vehicle of the appellant was also ordered to be confiscated to the State or as dealt with as per the law. 2. Precisely, the prosecution case as emerges from the prosecution evidence can be stated thus. On 20.2.2009, a police party headed by PW8 S.I. Gurbachan Singh was on patrolling duty in their official vehicle No.HP-34A-8833, being driven by HHC Babu Ram. At about 9 p.m., they were present at Tuman Mor and noticed a Pick-up bearing registration No.CH-23- 5653 driven by the appellant, hereinafter referred to as ‘the accused’, coming from the side of village Swad. It was stopped. Police demanded the documents of the vehicle, the accused got nervous and they entertained suspicion that the accused might be having some contraband in his possession. Since it was an isolated place and dark, it was not possible to obtain the warrants and to associate independent witnesses during the odd hours, as such, the immediate superior officer was informed about the same on telephone. The accused was given an option in terms of Section 50 of the Act apprising his right to be searched in the presence of a Magistrate or Gazetted Officer, but in - 3 - turn, the accused opted to be searched by the police present there and made an endorsement on memo Ext.PW1/A. Thereafter all the members of the patrolling party gave their personal search to the accused, but nothing incriminating was found from any of them. To this effect, memo Ext.PW1/B was executed. (ii) Thereafter police conducted the search of the vehicle of accused. During search, PW7 HC Pune Ram, recovered a plastic bag containing 2.800 kilograms Charas. Two samples each weighing 25 grams were separated and sealed separately with seal producing the impression of English letter “H” and the remaining bulk was also sealed with the same seal. (iii) NCB forms in triplicate were prepared, one of which is Ext.PW7/A. The case property was taken into possession vide seizure memo Ext.PW1/D alongwith the vehicle in question. (iv) A Ruqa was sent through PW1 Constable Mukesh Kumar, for the registration of the case, which culminated into FIR Ext.PW6/B. - 4 - (v) Accused was arrested. He was informed about the grounds of arrest in writing Ext.PW1/E. (vi) Case property was produced before PW8 SI Gurbachan Singh, which was resealed by him with seal impression “A” and then deposited in the Malkhana with PW6 HC Anoop Kumar and its entry made in the Malkhana register. (vii) Special report was sent to the officer superior within the statutory period. (viii) On 23.2.2009, PW4 MHC Pushap Dev sent bulk Charas and sample parcel through PW2 Constable Hari Singh vide R.C. No.115/09-10 Ext.PW6/E alongwith specimen seal and NCB forms and other connected documents for analysis. (ix) As per report Ext.PW4/B, the sample as well as bulk tested positive for Charas. It contained 25.34% weight-in-weight resin of the Cannabis plant. Later one sample parcel, which was with police was also sent for analysis that was also tested positive. - 5 - 3. After completing the investigation, challan was presented against the accused for his trial. He was accordingly charge-sheeted, to which he pleaded not guilty and claimed trial. 4. To prove its case, prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances which were found attendant upon him. He took up the stand that the prosecution witnesses made false deposition against him and he is innocent. When called upon to enter into his defence, he did not lead any evidence in defence. 5. The learned trial Court on the scrutiny of evidence held that the accused was found in exclusive and conscious possession of the alleged offending article at the relevant time while transporting it in his vehicle, which was without any documents. Since resin of the Cannabis plant was found 25.34% weight-in- weight in the recovered stuff, thus, the total quantity of the contraband recovered from the possession of the accused was held to be 700 grams, which was less than “commercial quantity” and more than the “small - 6 - quantity”, as such, he was convicted and sentenced as aforesaid. 6. Shri H.R. Bhardwaj, learned counsel for the accused vehemently argued that from the facts, it is evident that the police had the prior information, therefore, in absence of sub-Section (2) of Section 42 of the Act, which is mandatory, the conviction and sentence of the accused on this score alone deserves to be set-aside. It is next argued that the police failed to associate any independent witnesses and the testimony of the official witnesses in view of the material contradictions with respect to the situs of recovery becomes doubtful. It is further argued that the scale and weights with which the case property was measured was not produced. The prosecution witnesses were inimically disposed of towards him and the driver of the official vehicle was not examined. Seal and specimen seals were not produced during the trial. It is further ventilated that the vehicle in question was not in a good shape and road worthy, the police did not take its photographs intentionally and the sample was taken without mixing the entire quantity, therefore, the accused deserves to be acquitted. To - 7 - substantiate his points, learned counsel cited State Vs. Nazir Ahmad [ 2010 (3) Him.L.R.(DB) 1228], State Vs. Raju @ Mohammad and others [ Latest HLJ 2010 (HP) 913 (DB),] Nirmal Bahadur V. State Latest [Latest HLJ 2011 (HP) 154] and State of H.P. v. Gajinder and another [2011 (2) HIM.L.R. (DB) 601]. 7. On the other hand, Shri A.K.Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence. He further argued that the provisions of Section 42 of the Act are not applicable in the instant case, and that PW7 HC Pune Ram otherwise already informed the official superior telephonically, thus, there was a proper compliance, if any required under the law. It is also ventilated that since it was an isolated place, dark and no independent witnesses was available and also that there is no requirement of law or the rules of evidence that the independent witnesses should be included in a case of chance recovery. He further argued that the evidence on record shows that the testimonies of the official witnesses are worth inspiring confidence and was rightly acted upon by the learned trial Court. He also ventilated that in this case the case law cited by - 8 - the learned counsel for the accused is not at all applicable in the present fact situation. It is also ventilated that the learned counsel did not point out as to which of the prosecution witness was inimically disposed of towards the accused, therefore, no interference in the judgment impugned is called for. 8. I have given my thoughtful consideration to the rival contentions of the parties and have carefully examined each and every point discussed before me. 9. Section 42 of the Act applies to a case where an officer concerned on information received or having reason to believe from personal knowledge that any offence has been committed in relation to any drug or psychotropic substance etc. and which is kept or concealed in any building or in conveyance or enclosed place, may, between sun rise and after sun set enters into and search any such building, conveyance or place. The police officers are authorized to search, seizure and to arrest the person whom they have reasons to believe to have committed an offence punishable under the Act. 10. The facts of this case disclose that the arrest and seizure took place at a public place while the - 9 - accused was transporting it in his vehicle. The police had no prior information about it. Thus, the case in the above circumstances is fully covered by Section 43 of the Act which does not require information of any person to be taken down in writing and reasons recorded there-far. There is no requirement of law that the concerned Officer must send a copy thereof to his immediate officer superior as ventilated, especially when the telephonic message to this fact was already passed, therefore, this argument of the learned counsel for the accused is rejected. 11. Further, it is argued that there has been non- compliance of Section 50 of the Act. Since the recovery is from a bag, which was kept beneath the driving seat and not from a personal search, therefore, Section 50 of the Act is not attracted. In this behalf, reference can be made to the judgment of the Supreme Court rendered in Ajmer Singh v. State of Haryana [ (2010) 3 SCC 746]. 12. Further, the place from where the recovery of the contraband is made shows the culpable animus of the accused. The statement of PW7 Pune Ram is duly - 10 - corroborated by PW1 Constable Mukesh Kumar in material particulars. 13. The learned counsel pointed out that in cross- examination, PW7 HC Pune Ram stated that they reached the spot around 8.25 p.m. and remained there upto 9.30 p.m., whereas in the cross-examination PW1 Constable Mukesh Kumar stated that they reached back in the Police Station at 9.45 p.m. Thus, there are material contradictions in their statements as the police party could not have been in the Police Station at 9.45 p.m., more specifically when the accused was apprehended at 9 p.m. 14. To appreciate the point taken by the learned counsel, it shall be relevant to refer to column No.5 of the FIR, which shows that the place of occurrence was only 7 k.m. from the Police Station and they were having the vehicle with them. Accused was apprehended at 9 p.m., they completed the necessary formalities within half an hour. At the same time, it was an isolated and dark place. PW7 HC Pune Ram testified that the case property and the vehicle in question were produced before PW8 SI/SHO Gurbachan Singh for the purpose of resealing immediately without delay, - 11 - which fact has been admitted by the said witness when examined in the Court as PW8 and this fact stands confirmed by PW6 HC Anoop Kumar (MHC), which was not assailed in his cross-examination that at 10.15 p.m. that during the intervening night of 20th & 21st February, 2009, the case property was deposited by PW8 SI Gurbachan Singh which bore the seal impression “H” and “A” alongwith NCB forms alongwith the vehicle in question, which was entered in the Malkhana register, the extract whereof is Ext.PW6/D and the report was made to this effect in the daily diary, the copy of which is Ext.PW6/J. Further PW6 HC Anoop Kumar retained one sample parcel of 25 grams in the Malkhana and rest of the recovered stuff as well as one sample was sent for its analysis vide RC No.115/09 Ext.PW6/E to the Laboratory through PW1 Constable Mukesh Kumar, which tested positive for Charas. The report of analysis is Ext.PW7/C and even on 23.2.2009, another sample parcel and the remaining bulk, which was retained in the Malkhana was also sent by PW6 aforesaid through PW2 Constable Hari Singh for its analysis vide RC Ext.PW4/A dated 1.3.2010, which also tested positive for Charas as per report Ext.PW4/B. - 12 - Therefore, in these circumstances, I do not find any material contradictions in the statements of the prosecution witnesses which can even raise a doubt on its probity as the statements of the official witnesses are consistent, reliable and without any embellishment. Therefore, the argument raised on behalf of the accused that there are material contradictions and the prosecution story is doubtful, is worth rejecting. 15. Further the case of the prosecution cannot also be thrown out on the ground of non-inclusion of the independent witness nor it is the mandate of law to include independent witness(s) in the above situation, as it is a case of a chance recovery. It was dark and isolated place, thus no independent witness was available. This explanation given by the Investigating Officer has not been challenged in his cross- examination. Further non-examination of the driver of the official vehicle is also not at all fatal to the case of the prosecution. For the reason that he was also from police department and it is not necessary that each and every witness present on the spot should be examined. It is for the learned Public Prosecutor to examine any of the witness, who is necessary to unfold - 13 - the case of the prosecution. Therefore, the argument of the learned counsel falls flat. 16. The learned counsel for the accused also ventilated that the facsimile of the seal used on the spot was not placed and proved on record during the trial of the case is also incorrect as the sample of seal “H” which was used on the spot, as per witnesses was taken on a piece of cloth, which has been proved and exhibited as Ext.PW1/C. Not only this, the facsimile of the seal is also appended on the NCB forms aforesaid. The report of the sample parcel Ext.PW7/C testifies that it contained three seals of “H” and reseal “A” and these seals were found intact and tallied with facsimile of seal on the NCB Form-I, therefore, the plea taken by the learned counsel for the accused has no substance, hence rejected. 17. The next point taken is that the recovered stuff was not mixed up before taking the sample. I have gone through the statement of witnesses. This fact has not been disputed in their cross-examination, therefore, the point cannot be taken for the first time in appeal. Further I do find that the entire stuff was got analyzed in the laboratory as stated above and it was found to - 14 - have contained resin of the Cannabis plant to the extent mentioned in the reports. Therefore, the above argument has no significance in the matter. 18. The next argument of the learned counsel for the accused was that the vehicle of the accused was not in good shape and road worthy condition and no photographs were taken by the police. This fact has not been suggested to any of the witness aforesaid nor explained by the accused in his statement under Section 313 of the Code of Criminal Procedure, therefore, the plea remained unsubstantiated on record and no benefit can be derived by this argument. 19. On the critical examination of the entire evidence on record, the recovery of the contraband from the possession of the accused cannot be doubted. He failed to count for that this legal presumption has to be drawn against him under Section 35 and 54 of the Act. 20. The case law cited and relied upon by the learned counsel for the accused is not relevant to the fact situation, thus not discussed to unnecessary burden this judgment. - 15 - 21. For the reasons aforesaid, in my considered opinion the conviction by the learned trial Court against the accused is legal and proper and the accused cannot be shown any leniency in sentence. The learned trial Court took note of his antecedents, being previous convict in three cases and also involved in other criminal cases. Even a case of a similar nature is stated to be pending at Chandigarh in terms of FIR No.57/08 as per the details given at page 11 of the Challan file. Hence, the appeal sans merit and is accordingly dismissed. 22. The matter stands disposed of. Send down the record. June 29, 2011. (Surinder Singh), (Pds) Judge.