HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Jail Appeal No.70 of 2003 1. Ram Singh S/o Sri Chatar Singh, R/o Village Bhukki, P.O. Gagnnani, Tehsil-Bhatwari, District-Uttarkashi. 2. Bhim Singh, S/o Dev Singh, R/o Village Radhi, P.O. Dharchul, Tehsil-Dharchula, District-Pithoragarh. ……Appellants Versus State. ……Respondent Mr. Vinod Sharma, Advocate for the appellants. Mr. Amit Bhatt, Addl. Government Advocate for the respondent-State. JUDGMENT Hon’ble J. C. S. Rawat, J. This is a criminal jail appeal filed by the appellant against the judgment and order dated 23.12.2002 passed by the then Special Judge, Chamoli in Special S.T. Nos.02/2002 & 03/2002 whereby the learned Special Judge has convicted the appellants and sentenced them to undergo RI for four years and also imposed fine of rupees twenty five thousand only under Section 8/20 of the N.D.P.S. Act. It was further directed that in default of payment of fine, the appellants would undergo imprisonment for another period of one year. 2. The case of the prosecution, in brief, is that on 23.10.2001 at about 2345 hours, the police patrolling party was on a patrolling duty heading towards Karnprayag. Suddenly, they saw a Jeep coming from the side of Karnprayag with some persons sitting therein. As it had become forty-five past eleven in the night, the police patrolling party felt some suspicion, as such, they stopped the said Jeep and started searching the persons sitting in the jeep one by one. From the search of Shiv Singh & Kamal Singh who were found sitting in the front seat of the jeep, nothing was recovered from them except a hundred rupee note from the pocket of Kamal Singh. Thereafter, the appellants Ram Singh and Bhim Singh who were found sitting in the back seat of the said Jeep, were also searched and they were found carrying ‘charas’ with them. From the person of Bhim Singh and Ram Singh, 850 grams ‘charas’ & 500 grams ‘charas’ respectively were recovered. These recovered articles were sealed at the spot and a recovery memo to that effect was also prepared at the spot. The accused appellants alongwith the recovered substances were then taken to the police station where F.I.R was lodged against them whereas the recovered substances were kept in the safe custody of the police. The recovered substances later on sent to the Forensic Science Laboratory, Agra for its chemical examination wherefrom it is reported that the aforesaid recovered articles were ‘charas’. Meanwhile, the matter was investigated by the police and after completing the investigation, the police submitted chargesheet against both the accused persons. Two separate sessions trials numbered as 02/2002 & 03/2002 were registered against the appellants Ram Singh & Bhim Singh respectively. Since both the aforesaid sessions trials pertains to the same incident and there was also common evidence in both the sessions trials, as such, both these sessions trials were clubbed together during the trial. 3. The trial court framed charge against the accused appellants under Section 8/20 of the N.D.P.S. Act. The accused appellants denied the charge levelled against them and claimed trial. 4. The prosecution in support of its case examined as many as five witnesses namely, M.L. Sah PW1-the Inspector Incharge, Police Station Karnprayag, Sub- Inspector G.L. Sah PW2, C.O. Dhirendra Singh Gujyal PW3, Bachendra Kumar PW4 & Shiv Singh PW5 is the witness of public in whose presence search & seizure of the appellants were conducted. 5. In the statement recorded u/s 313 Cr.P.C., the accused-appellants denied all the averments made in the prosecution evidence and stated that they have been falsely implicated in this case. 6. The learned trial court after appreciation of the evidence found the accused-appellant guilty under Section 8/20 N.D.P.S. Act and, convicted & sentenced them as mentioned above. 7. I have heard learned counsel for the parties. I have also gone through the evidence and material on record. 8. Now, it is to be seen as to whether the accused- appellants were found carrying ‘charas’ in their possession on the date of the incident or not. The prosecution in support of its case examined M.L. Sah PW1-the Inspector Incharge, Police Station Karnprayag who has stated in his evidence that on 23.10.2001, he alongwith other police officials was on a patrolling duty heading towards Karnprayag. At about 2300 hours when they reached near a tunnel, they saw a vehicle coming from the side of Karnprayag. On suspicion, they stopped the vehicle, which was found to be a Marshall Jeep and started searching the occupants of the said vehicle in person. Two of the four occupants namely, Shiv Singh & Kamal Singh who were found sitting in the front seat of the vehicle were searched but nothing was recovered from their possession but from the search of the appellants-Bhim Singh & Ram Singh who were found sitting in the back seat of the vehicle, 850 grams & 500 grams of ‘charas’ respectively were recovered and information to this effect was given to higher officers (vide Ex.Ka-1 on record). Thereafter, recovery memo was prepared at the spot and the accused appellants alongwith the recovered substances were taken to the police station where the recovered substances were kept in the ‘malkhana’. The prosecution also examined Sub- Inspector G.L. Sah PW2 who is also a witness of search, seizure and arrest. This witness has corroborated the evidence of M.L. Sah PW1 on all material points. 9. Dhirendra Singh PW3 is the Circle Officer and he has stated in his evidence that on 23.10.2001, he was on a patrolling duty of his area. At 2100 hours, he received information from Police Station Karnprayag on his R & T Set that they have apprehended some persons during the patrolling duty. He immediately rushed towards the spot and upon his arrival at the spot, search of the occupants of the said vehicle/jeep was conducted as stated above. Bachendra Kumar PW4 is the formal witness and Shiv Singh PW5 is the public witness who has stated in his evidence he used to work as helper in the said vehicle and on the date of the incident, Kamal Singh was the driver of the said vehicle from which the appellants Bhim Singh and Ram Singh were apprehended. This witness has further stated in his evidence that on 23.10.2001, he was sitting alongwith Kamal Singh in the Taxi Union Stand, Uttarkashi where the appellant Ram Singh who was his school fellow accompanied with other appellant- Bhim Singh came at about 0800 hours and hired a taxi for Almora from the Taxi Union. The appellant- Bhim Singh was also going to Almora to see his ailing mother. Thereafter, both the appellants boarded the said vehicle and proceeded towards Almora. When they reached two kilometers before Karnprayag, the said vehicle was stopped by the police patrolling party. After being apprehended, the appellants admitted before the police patrolling party that they were possessing ‘charas’ in their bags. Thereafter the appellants were informed of their legal rights with regard to their search which is to be conducted before a Magistrate or a Gazetted officer as provided under the Narcotics Act and was asked whether they would like to be searched before a Magistrate or a Gazetted officer, the appellants kept mum on this issue. The C.O-Dhirendra Singh PW3 also reached at the place of the incident on the information of M.L. Sah PW1 and thereafter search of the accused appellants was conducted in his presence. This witness is also a witness of the recovery. The accused appellants were searched separately and ‘charas’ was recovered from the bags of each of the appellants. Thereafter, the recovered ‘charas’ was weighed at the spot and it was found that the appellant Bhim Singh was carrying 850 grams of ‘charas’ whereas the other appellant Ram Singh was carrying 500 grams of ‘charas’. 10. The accused appellant Ram Singh has died during the pendency of the appeal and the appeal against him has been abated vide this Court’s order dated 23.5.2008. Further, during the pendency of the appeal it was informed that the other appellant Bhim Singh was not appearing in the appeal, hence, non-bailable warrants were issued against him. In compliance of the said order, the Chief Judicial Magistrate, Chamoli has informed vide its letter dated 19th July, 2008 that the appellant-Bhim Singh has been released from the District Jail, Haridwar on 24.01.06 after completing the sentence awarded to him. 11. It is apparent from perusal of the impugned judgment & order that the learned trial court has minutely scrutinized the evidence of all the witnesses and found them consistent and reliable. With the assistance of the learned counsel for the parties, I have also gone through the entire evidence adduced by the prosecution but nothing could be elicited from their evidence by which it could be concluded that their testimonies are not credible and cogent. An independent witness named Shiv Singh PW5 was also produced to corroborate the prosecution story. Thus, it is amply proved by the evidence of the prosecution that the accused-appellants were having ‘charas’ in their bags. It has also come in the prosecution evidence that information regarding the said recovery of ‘charas’ from appellants’ possession, was forwarded to the higher officers. 12. The learned counsel for the appellants did not dispute the propriety or the legality of the conviction recorded by the trial court. Indeed, the main thrust of his contention is on the point of sentence awarded to the appellants and urged that the sentence awarded by the learned trial court did not commensurate with the offence. It is apparent that the learned trial court has awarded only four years rigorous imprisonment to the accused appellants and also imposed a fine of rupees twenty five thousand upon each of them under Section 8/20 of the NDPS Act. It is pertinent to mention that the quantities recovered from the possession of each of the appellants were not the commercial quantity and moreover, under the provisions of N.D.P.S Act, one- kilogram of ‘charas’ is a commercial quantity and if the recovered quantity falls short of one kilogram, it would be lesser than the commercial quantity and if the said quantity exceeds the limit of small quantity then the accused apprehended for committing such an offence is liable to be punished for a term not less then ten years with fine of rupees one lac. In the case in hand, the learned trial court has only imposed a sentence of four years and fine of rupees twenty five thousand only to the accused appellants, as such, the punishment awarded by the trial court commensurate with the offence committed by the appellants and it need not require any interference. 13. In view of the foregoing discussion, I hold that the prosecution has established the guilt against the surviving appellant-Bhim Singh beyond any reasonable doubt. I find that the learned trial court has rightly convicted and sentenced the appellants. Therefore, I am completely in agreement with the findings recorded by the trial court and no further interference is required in this case. 14. The appellant-Ram Singh has died during the pendency of the appeal, hence, the appeal against him has already been abated vide this Court’s order dated 23.5.2008. 15. Hence, the appeal is dismissed and, the order of conviction & sentence passed by the trial court against the surviving appellant-Bhim Singh is confirmed. 16. Let the lower court record be sent back to the court concerned for compliance. Compliance report be submitted within three months. (J.C.S.Rawat, J.) Dated 03rd September, 2008 V.K.