IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 60 of 2010 Reserved on : 30.3.2011 Decided on : 30.06.2011 ________________________________________________ Amit Sharma ….. …Appellant. Versus State of Himachal Pradesh …Respondent. Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? 1 Yes. For the appellant : Mr. Vinod Thakur, Advocate. For the respondent : Mr. Anil Jaswal, Dy. Advocate General. ________________________________________________ V.K. Sharma, Judge. The appellant (convict) is in appeal against the judgment and order dated 02.01.2010, of the learned Special Judge, Chamba Division, Chamba (H.P.), in Sessions Trial No. 18 of 2009, State of H.P. vs. Amit Sharma, whereby he was tried for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘the NDPS Act’) and was ultimately convicted and sentenced to undergo rigorous 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 imprisonment for five years and to pay fine of ` 50,000/-, failing which to suffer further imprisonment for one year. 2. In brief, the case of the prosecution was that on 9.2.2009, a police party comprising of HC Anirudh (PW-8), HC Vijay Kumar, Constable Latif Mohd. and Constable Neeraj Kuamr, was present at Duga Morh in connection with routine and traffic checking. In the meantime, at about 1.30 PM HRTC bus bearing registration No. HP-42-0824 came there from Bhanjraru side. It was stopped by the aforesaid police party for checking. The accused was found sitting on seat No. 35. When PW-8, HC Anirudh came near him and asked his name and address, he became perplexed, which aroused suspicion and he was taken out of the bus. Thereafter, PW-8 HC Anirudh in the presence of the independent witnesses, namely, Narinder Singh (PW-1), conductor of the bus and one Sudesh Kumar, gave option to the convict vide memo Ex.PW-1/A and he was apprised that he had a legal right to give his search before a Magistrate, Gazetted Officer or the police, but the accused consented to be searched by the police. 3. After that PW-8, HC Anirudh gave his personal search to the accused vide memo Ex.PW-8/A. Thereafter, he carried out personal search of the convict 3 vide memo Ex.PW-1/B, pursuant to which charas was recovered from the jacket, which he was wearing . On weighing the recovered contraband was found to be 2 kgs. Two samples each weighing 26 gms. were taken from the same and were put in two separate parcels, which were sealed with seal bearing impression ‘A’. The bulk of the recovered contraband was also separately sealed along with the jacket with the same seal. Specimen of the seal Ex.P-4 was also taken separately. NCB form Ex.PW-7/C was prepared in triplicate and facsimile of the seal used was also taken on the same. After completion of other procedural formalities on the spot, the police party returned to the police station. There, case property comprising of the parcels containing the bulk of recovered charas and samples thereof along with sample seals and NCB form was produced by PW-8 HC Anirudh before ASI Kuldeep Singh (PW-7), who resealed each of the parcels containing the bulk and samples with seal bearing impression ‘H’ and also took specimen of the seal separately, which is Ex.PW-6/C and impression of the seal was also affixed on the NCB form, regarding which resealing memo Ex.PW-6/D was prepared separately. 4. The sample of the recovered contraband was sent for analysis to the State Forensic Science Laboratory, 4 Junga (H.P.) and report Ex.PW-8/F was obtained, which revealed as under:- “RESULTS OF THE EXMAINATION Various scientific tests such as physical, identification, chemical and chromatographic tests were carried out in the Laboratory with the exhibit under reference. The test performed above indicated cannabinols including the presence of tetrahydrocannabinol in the sample. The microscopic examination indicated the presence of Cystolythic hair in the sample. Charas is a resinous mass and resin is an active ingredient of Charas, which on testing was found present. And the quantity of resin as found in sample is 25.17% w/w. The result thus obtained is given below. The entire mass of the exhibit is extracts of cannabis and the sample of CHARAS.” 5. On completion of investigation, the accused was sent up to face trial. On being charged, he pleaded not guilty and claimed trial. The prosecution evidence followed. In all, 10 prosecution witnesses were examined. 6. On close of the prosecution evidence, the accused was examined under Section 313 Cr.P.C, wherein, his defence was that of total denial, innocence and false implication. In defence, no evidence was led. 5 7. On conclusion of the trial, the learned trial Court proceeded to convict and sentence the accused, as already noticed. 8. I have heard the learned counsel for the appellant-convict and the learned Dy. Advocate General for the respondent-State and gone through the record. 9. The charge against the convict was that he was found in actual and conscious possession of 2 Kgs. of charas and had thereby committed an offence punishable under Section 20 of the NDPS Act. However, ultimately by relying upon a Division Bench judgment of this court, reported as Dharam Pal vs. State of H.P., 2008 (1) Crimes 337 (H.P.), he was held guilty under Section 20 (b) (ii) (B) of the NDPS Act, in relation to quantity lesser than commercial quantity but greater than small quantity, as per reasoning adopted vide para 32 of the impugned judgment dated 02.01.2010, which is extracted below and was consequently sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs. 50,000/- and in default to suffer further imprisonment for one year:- “However, it is to be noted that though it is the case of the prosecution that the charas which was recovered from the possession of the accused on weighing was 6 found to be 2 Kgs. but on perusal of report of the Chemical Examiner Ex.PW.8/F, it is clear that the quantity of resin in the sample analysed was found to be 25.17% weight in weight. In “Dharam Pal vs. Station of HP”, 2008 (1) Crimes 337 (HP), it has been held that the quantity of resin found in the stuff can be said to be charas and not the whole quantity recovered from the possession of the accused. Thus, applying the ratio of the aforesaid case to the facts of the present case, the quantity of charas recovered from the possession of the accused can be safely held to be 503.40 gms. Which is though less than the commercial quantity but is greater than the small quantity.” 10. Since personal search of the convict was carried out in a public transport vehicle and it was a case of chance recovery, Section 42 of the NDPS Act was not applicable, albeit the fact that there is a recital in Memo. Ex.PW-1/A, served upon the convict under Section 50 of the NDPS Act that it was on the basis of reliable information that he was suspected of possessing some contraband goods. 11. There is satisfactory compliance of Section 50 of the NDPS Act in this case as deposed by PW-8 HC Anirudh, the Investigating Officer, coupled with the statement of independent witness, PW-1 Shri Narinder 7 Singh, conductor of the bus, in which the convict was traveling at the relevant time. Though, PW-1 Shri Narinder Singh after deposing about serving of Memo. Ex.PW-1/A upon the convict under Section 50 of the NDPS Act had deviated from his previous statement to the police under Section 161 Cr.P.C to some extent and was as such declared hostile and permitted to be cross- examined by the prosecution, yet in later part of his testimony during cross examination by the learned Public Prosecutor, he has fully supported the version stated by PW-8, HC Anirudh. Nothing incriminating could be extracted out of him in further cross examination on behalf of the convict. 12. PW-4 constable Prabhat Chand has deposed about taking of the special report under Section 57 of the NDPS Act to the Superintendent of Police, Chamba, which was received in that office by PW-5 , HC Tek Chand. 13. The case property was produced by PW-8, HC Anirudh, before PW-7, ASI Kuldeep Singh, who re- sealed the same. It was thereafter deposited with PW-9, HC Kailash Chand, the then MHC Police Station, Sadar Chamba, who had sent the sample for analysis to the Forensic Science Laboratory at Junga, through PW-10, 8 constable Madan Chand. Thus, the evidence with regard to sampling, sealing, re-sealing and safe custody of the case property throughout is also amply proved in this case. 14. In Gaunter Edwin Kircher v. State of Goa, 1993 Supreme Court 1456, the Hon’ble Apex Court has held as under vide the relevant part of para 5:- “The next and most important submission of Shri Lalit Chari, the learned senior counsel appearing for the appellant is that both the courts below have erred in holding that the accused was found in possession of 12 gms. of Charas. According to the learned counsel, only a small quantity i.e. less than 5 gms. has been sent for analysis and the evidence of P.W. 1, the Junior Scientific Officer would at the most establish that only that much of quantity which was less than 5 gms. of Charas is alleged to have been found with the accused. The remaining part of the substance which has not been sent for analysis cannot be held to be also Charas in the absence of any expert evidence and the same could be any other material like tobacco or other intoxicating type which are not covered by the Act. Therefore the submission of the learned counsel is that the quantity proved to have been in the possession of the accused would be small quantity as provided under S. 27 of the Act and the accused should have been given the benefit of that section. Shri Wad, learned senior counsel appearing for the State submitted that the other piece of 7 gms. also was recovered from the possession of the accused and there was no need to send the entire quantity 9 for chemical analysis and the fact that one of the pieces which was sent for analysis has been found to contain Charas the necessary inference would be that the other piece also contained Charas and that at any rate since the accused has totally denied, he cannot get the benefit of S. 27 as he has not discharged the necessary burden as required under the said Section. Before examining the scope of this provision, we shall first consider whether the prosecution has established beyond all reasonable doubt that the accused had in his possession two pieces of Charas weighing 7 gms. and 5 gms. respectively. As already mentioned only one piece was sent for chemical analysis and P.W. 1, the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms. From this report alone it cannot be presumed or inferred that the substance in the other piece weighing 7 gms. also contained Charas. It has to be borne in mind that the Act applies to certain narcotic drugs and psychol, tropic substances and not to all other kinds of intoxicating substances. In any event in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it is not safe to hold that 12 gms. of Charas was recovered from the accused. In view of the evidence of P.W. 1 it must be held that the prosecution has proved positively that Charas weighing about 4.570 gms. was recovered from the accused. The failure to send the other piece has given rise to this inference. We have to observe that to obviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity 10 seized. If it is not, practicable, in a given case, to send the entire quantity then sufficient quantity by way of samples from each of the packets or pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law.” 15. Based on the above judgment of the Hon’ble Apex Court in the case of Gaunter Edwin Kircher v. State of Goa are two judgments rendered by the learned Single Judges of this Court in Cr. Appeal No. 650 of 2008, Krishan Chand vs. State of H.P., decided on 27.04. 2009 and Cr. Appeal No. 42 of 2010, Hardev vs. State of Himachal Pradesh, decided on 13.4.2011. In these cases charas weighing 1 Kg. and 2 Kgs., respectively, was involved, but two samples each weighing 25 gms. were drawn in each case and sent to the laboratory for chemical analysis. 16. The law laid down by the Hon’ble Supreme Court in Gaunter Edwin Kircher, supra was also followed by the Hon’ble Bombay High Court in Javed A. Bhat v. Union of India, 2007 Cri.L.J. 3145. 17. In Union of India vs. Bal Mukund and others, (2009) 12 Supreme Court Cases 161, the Hon’ble Supreme Court has held as under vide para 36 of the report:- “There is another aspect of the matter which cannot also be lost sight of. Standing Instruction No. 1/88, which had been issued under the Act, 11 lays down the procedure for taking samples. The High Court has noticed that PW-7 had taken samples of 25 grams each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law.” 18. While relying upon the law laid down by the Hon’ble Apex Court in Gaunter Edwin Kircher v. State of Goa, supra, as followed in the judgments referred to here-in-above, as also taking into consideration the proposition of law enunciated by the Hon’ble Supreme Court in the case of Union of India vs. Bal Mukund and others, supra, it would be seen that the quantity of the contraband said to have been recovered from the convict was 2 Kgs. A sample weighing 26 gms. only was sent for analysis, in which the quantity of resin was found to be 25.17% W/W or say 6.53 gms only, which is a small quantity. Thus, the convict cannot be convicted and sentenced under Section 20 (b) (ii)(B) of the NDPS Act and instead is liable to be convicted under Section 20 (b) (ii) (A) of the NDPS Act, for which the maximum punishment is six months, or fine, which may extend to ` 10,000/-, or with both. 19. In view of the above, the sentence imposed upon the convict by the learned trial court under the 12 impugned judgment dated 2.1.2010, is reduced to the maximum provided for the offence under Section 20(b) (ii) (A) of the NDPS Act, that is, rigorous imprisonment for six months and fine of ` 10,000/- and in default in payment of fine to further undergo imprisonment for three months. 20. In case the convict has already undergone the substantive sentence of six months as above and has paid the amount of fine of ` 10,000/-, he shall be set free to his liberty forthwith unless required in any other process -of law. It is made clear that in case the convict has already deposited the amount of fine of ` 50,000/- imposed upon him by the learned trial court under the impugned judgment dated 1.2.2010, he shall be entitled for refund of the remainder of ` 40,000/-. 21. The appeal stands partly allowed in the above terms. (V.K. Sharma) Judge. 30th June, 2011. Lsp*