IN THE HIGH COURT OF HIMACHAL RADESH SHIMLA Cr. Appeal No. 35/2005 Date of decision: 23.12.2011 Chamaru Ram son of Gheelo, resident of Bhalkund Pargna Jung, Tehsil Churah, Police Station Kihar, District Chamba, (HP). …..Appellant Versus State of Himachal Pradesh. ……..Respondent Criminal Appeal under Section 374 Cr.P.C against the Judgment of conviction & Sentence dated 3/4-1-2005 passed by Ld. Addl. Sessions Judge (FTC) Chamba in Sessions Trial No.22/2003/02. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1. Yes For the Appellant: Mr. N.K Thakur, Advocate. For the Respondent: Mr. A.K Bansal,Addl. Advocate General. Surinder Singh, Judge (Oral): The appellant hereinafter referred to “the accused” was convicted by the learned trial court, in Sessions trial No. 22/2003/2002 dated 3.1.2005/4.1.2005, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ‘the Act’ for allegedly keeping in possession “250 grams ” of charas as such, was sentenced to undergo imprisonment for a period of three years and to pay a fine of `20,000 with default clause. Hence challenged it in the present appeal. 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - 2. In short, the prosecution story, as emerges from the evidence on record, can be stated thus. On 24.12.2001 PW-10 ASI Jagdish Chand alongwith Constables Daya Singh and Karam Singh were present at village Pantah while on patrolling duty. Around 10.00 A.M. P.W-1 Meer Chand met them who was on his way to his house Bhiali. He was associated by the police party when they were present at Bali Nalla. (ii) The police spotted the appellant (hereinafter referred to as the accused) coming from the opposite side but on seeing the police, he tried to escape. His identity was asked by the police entertaining the doubt on his abnormal behaviour that he might be having contraband in his possession, as such, an option orally as well as writing EX.PA was given to him to his personal search by the police party or before the Magistrate or Gazetted Officer as it was his right. The option was obtained, whereby he alleged to have been given his consent to be searched by the Police party. He conducted the search of the accused in the presence of all the witnesses and recovered from the right pocket of his pent worn by him. Charas was in the shape of small balls and on weighment, it was found 250 grams. - 3 - (iii) Two samples of 25 grams each were separated from the recovered quantity and were sealed with seal impression ‘K’. The remaining Charas was sealed in the same packet with the same seal. The specimen of the seal ‘K’ was taken separately on a piece of cloth EX.PB and after use, was handed over to PW-1 Meer Chand and the case property was taken into possession vide seizure memo Ex.PC in the presence of Meer Chand and Karam Singh witnesses. (iv) Copy of seizure memo EX.PC was handed over to accused free of cost. 3. Thereafter, ruka EX.PF was prepared and sent through Constable Tara Chand for the registration of the case. Its copy was also sent to S.P. Chamba. 4. The Police prepared the site plan EX.PW10/B of the place of alleged recovery. The statements of the witnesses present on the spot were recorded. The accused was arrested and grounds of arrest EX.PD were informed to him. The NCB form stated to have been filled- in on the spot. 5. The special report EX.PW4/B was prepared and sent to S.P. Chamba through Constable Tara Chand. 6. The case property was thereafter produced before PW-7 Partap Singh alongwith the accused. The case property was re-sealed by putting seal impression ‘T’ - 4 - and he also prepared this re-seal memo EX.’PH’. He also took the specimen of seal on the piece of cloth EX.PW7/A. Thereafter, he deposited the case property with PW-5 MHC Desh Raj. 7. MHC aforesaid entered the case property in the Malkhana register and kept in the Malkhana alongwith the sample of seal and out of the two sealed samples one sealed sample was sent for its analysis on 25.12.2001 through Constable Bodh Raj vide RC No. 62/2001 alongwith specimen of seal and police docket. 8. On its examination in the laboratory vide its report EX.PW5/A, it was found that Couaeliterine test was positive and result of ovalitante test was found 20.97% in which resin was also present and on the general observation of the Chemical Examiner came to the opinion that the exhibit contains the contents of charas. After preparing the investigation, the challan was presented against the accused for his trial under the aforesaid offence. 9. Accused was accordingly charge sheeted, tried, convicted and sentenced as aforesaid. 10. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record. - 5 - 11. The recovery in the instant case of the alleged contraband is from the personal search of the accused. Therefore, it is incumbent upon the prosecution to prove the compliance of section 50 of the Act, which is mandatory . In the instant case, the statement of PW-10 Investigating Officer Jagadish Chand is important. Though, he stated that he gave option vide memo EX.PA in conformity with section 50 of the Act, but, he did not make any reference that any written consent of the accused was obtained. Later with the same breath he stated that after he drew the memo EX.PA, he subjected himself to be searched by the accused in the presence of witnesses, but no incriminating substance was found, thus a memo EX.PW10/A, was prepared. Thereafter, he conducted the personal search of the accused and recovered the aforesaid quantity from the right pocket of his pant, whereas, PW-1 Meer Chand did not state that what type of option was given by the Investigating Officer to the accused. After perusing EX.PA, though he has stated that document prepared by the Investigating Officer at that time with respect to giving the consent by the accused was prepared, but he also did not say that the accused was apprised by the said Police Officer that he had a right to be searched before the Magistrate or Gazetted Officer. - 6 - 12. Though, there is no particular form of consent to take option of the accused, it could be orally as well as in writing, but, whatever method is adopted by the Police before the consent is obtained it should be clearly and ambiguously informed to the accused that it was his legal right to be searched before the Gazetted Officer or Magistrate, failing which the case of the prosecution is bound to fail for non-compliance of Section 50 of the Act. 13. Further, the independent witness Meer Chand is proved to be inimically disposed of towards the accused, who tried to support the prosecution case. He admitted that the accused took away his sister from the parental house and kept her as his second wife. Though, he denied that on account of this, his relations are strained but stated that the accused had litigation only with his mother-in-law and not with him. Though, he admitted that the accused filed a case against him including nine other co-villagers, but according to him, this case was filed in the year 2001. To prove the prejudice of this witness, the accused tendered in evidence FIR lodged by the mother-in-law of the accused in which PW-1 was also cited as a witness against the accused and his statement was recorded by the police, but, this case on its presentation before the Court was compounded with the mother only. Thereafter, the - 7 - accused had also filed a complaint against him and some other persons regarding beating, threatening etc. on 16.11.2001, i.e, before the present case. These facts brought on record clearly indicate that the said witness was nurturing enmity against the accused and has a motive to depose against the accused. Though he is resident of village Bhiali but according to him, he had come to Pantah village in connection with the receipt of payment and on his return, he met the police by chance at Bali Nalla around 10:00 A.M., whereas PW-10, Investigating Officer stated that at that time this witness was associated by him but the reason for his association is not known because at that time accused was not spotted by the police party. His presence at the said place itself raises a doubt, more specifically when he was having a history of any animosity against the accused. Therefore, his statement with respect to the recovery can not be believed and admitted as a gospel truth. 14. The other witness PW-2 Kamal Kumar from whom the weight and scale have been obtained by the accused did not support the prosecution case, as such, he was declared hostile. Even, he did not specifically state about providing the weight and scale to the police. He denied that he was suppressing the truth. - 8 - 15. Thus, the statement of PW-1 Meer Chand is contrary to the statement of PW-10 ASI Jagdish Chand on material particulars and it gives an essence to frame the accused at his behest by the police. 16. Further, I also find that the NCB form which was allegedly prepared on the spot did not contain facsimile of the seal used by the Investigating Officer on the spot and also at the time of resealing by the Inspector/ SHO. 17. Further, the alleged recovery was made on 24.12.2001 at Bali Nalla on the same day it was resealed and deposited in the Malkhana. But against column No.5 of NCB form EX.PW5/A, it is stated to have been drawn on the same day i.e on 24.12.2001 thereafter, shown to have been dispatched on the next day i.e on 25.12.2001. It is not spelt out in the statement of any of the official witnesses including MHC as to why the sample parcel was drawn on 24.12.2001 and if it was drawn where it was kept till its dispatch on 25.12.2001 through Constable Bodh Raj which also made the prosecution case doubtful. 18. Also, in the report of the chemical examiner, he did not indicate that the resin was of the cannabis plant. 19. Section 2(iii) (a) defines Charas as under: “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;” - 9 - 20. Since, allegation against the accused was that he was in possession of charas, therefore, it should confirm to the definition of charas as given under the Act. Since, the report of Chemical examiner is silent about the source of resin and also did not mention that it was a concentrated preparation known as hashish oil and liquid hashish. The Chemical Examiner appears to have given a different definition of charas contrary to the statute, therefore, on the report also the conviction of the accused is liable to be set aside. 21. For the aforesaid reasons, in my opinion the conviction and sentence passed by the learned trial Court is not sustainable and is accordingly set-aside. The appeal of the accused is allowed. Consequently, the accused is acquitted by giving him the benefit of doubt. 22. The respondent is discharged of his bail bonds entered upon by him, at any time during the proceedings of this case. December 23, 2011 (Surinder Singh), (veena) Judge - 10 -