Whether reporters of the local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No.242 of 2005. Judgment reserved on 17.3.2008. Date of decision: March 20th,2008. Nathu Ram ….Appellant. Versus State of H.P. … Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the appellant : Mr. Rajiv Jiwan, Advocate. For the respondent : Mr. P.K. Sharma, Addl. Advocate General. Surinder Singh, Judge. The challenge has been made by the appellant, feeling aggrieved by the judgment of the conviction and sentence passed by the learned trial court under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985; in short ‘The Act’, whereby he has been sentenced to undergo imprisonment for a period of 10 years and to pay a fine of Rs.1, 00,000/-; for allegedly having in his possession 5.500 Kgs. of charas. Precisely, the case of the prosecution has been that on 4th July, 2003, a police party headed by Head Constable Narain Singh was present at Bajora check post, in district Kullu, in connection with the traffic checking. Around 6.45 p.m., HRTC bus bearing registration No.HP-34-A- 1297 came from Manali. It was bound for Delhi. It was stopped. Prem Singh (PW4) was the driver and another Prem Singh (PW3) was its conductor. The police started the checking of the passengers of the bus - 2 - from the front seat. In the process of such checking, Head Constable Narain Singh noticed the convict-appellant sitting on seat No.14 with a bag on his lap. He checked his bag and found a yellow coloured envelope wrapped in a towel containing eight packets of charas. The charas was in the shape of chocolates and GOLINUMA (balls). The Head Constable demanded the bus tickets. The convict-appellant pointed-out towards his co-passenger, Dot Ram sitting besides him on seat No.13, who produced two tickets valuing Rs.600/-. Both of them were alighted from the bus and were taken to a tent nearby along with the witnesses i.e. the driver Prem Singh (PW4) and conductor Prem Singh (PW3). The charas was found 5.500 Kgs. on its weighment. Out of the recovered quantity, two samples of 25 grams each were separated and separately sealed with seal impression ‘T’. The remaining bulk was also sealed with the same seal. The towel and bus- tickets were sealed in a separate packet. The sample of seal was taken separately on a piece of cloth. The NCB form Ex.PW6/D was also filled in. The charas was taken into possession vide memo Ex.PW1/B and the towel as well as the bus- tickets were taken into possession vide memo Ex.PW1/C in the presence of the driver and conductor above-named. The police prepared the site plan Ex.PW1/G. A ruqqa Ex.PW1/F was sent through constable Ramesh Chand (PW2) for the registration of the case in Police Station Kullu, on the basis of which FIR Ex.PW8/A was formally registered. The appellant as well as his co- accused, both were arrested. They were informed about the grounds of their arrest. The accused and the case property were produced before the SHO (PW8), Police Station, Kullu. He resealed the case property with seal impression `H’. Thereafter, it was deposited with MHC Dharam Chand (PW6). Its entry was made in the Malkhana register, on 6.7.2003. One sample of charas was sent vide RC Ex.PW6/B alongwith the police- docket to CTL Kandaghat, for examination through Constable Partap - 3 - Singh (PW7). As per the report Ex.PA, the said sample was found to be that of charas. After recording statements of the witnesses, the case was presented in the court for the trial of the appellant under Section 20 and against Dot Ram, co-accused, under Section 29 of the Act. At the end of the trial, Dot Ram, co-accused was acquitted of the charge framed against him and the appellant Nathu Ram was convicted and sentenced as aforesaid, which has been assailed in the instant appeal. We have heard the learned counsel for the parties. Shri Rajiv Jiwan, learned counsel for the appellant has submitted that the driver and conductor of the bus in question have not supported the case of the prosecution and there are material contradictions in the statements of the official witnesses which render the prosecution case highly doubtful against the appellant. It is also argued that there were eight packets of the alleged offensive matter. Each packet was not separately weighed nor is it made clear as to what was the weight of the packet from which the samples were drawn. Further it is also not clear whether the samples were drawn from the chocolate or balls type of substance. Therefore, in these circumstances it can not be said that the entire recovered stuff was charas. Contra, Shri P.K. Sharma, learned Additional Advocate General while supporting the impugned judgment of conviction and sentence has argued that the Investigating Officer had taken the sample from the recovered bulk in accordance with law and the quantity recovered from the possession of the appellant is a “commercial quantity”. The conscious possession of the appellant stands proved, therefore, no fault can be found in the impugned judgment. - 4 - We have given our thoughtful consideration to the rival contentions of the learned counsel for the parties and have carefully gone through the evidence on record. As per the case of the prosecution, charas was found in eight separate packets, kept in a polythene bag, which was further wrapped in a towel Ex.P7 and kept in a ruck-sack. To establish this fact that all the eight packets contained Charas; it was incumbent upon the Investigating Officer to draw separate samples from each of the packets and send it for analysis. The record must establish this fact and the Investigation Officer should also depose it in the court because in case of conviction, it is helpful to the court to pass an adequate sentence, as the act provides a different sentence for the possession of different quantity of the contraband. In absence of it when the samples were drawn from only one packet, the court can not presume that all the packets contained the offensive matter. In the instant case this question would only arise when the prosecution is held successful in proving the recovery of the alleged contraband from the possession of the appellant. Therefore, we proceed to examine whether the prosecution has been able to prove the recovery of the substance from the appellant, in accordance with law. Prem Singh (PW3), the conductor and another Prem Singh (PW4) the driver of the bus, both have not supported the case of the prosecution. However, they admit the checking of the bus by the police at Bajora check post. As per the driver of the bus (PW3) there was a noise in the bus that the charas was recovered and according to the conductor, (PW3), the bag was recovered from the shelf of the bus, over seat Nos.25 and 26; where two Gurkhas were sitting and there was no claimant of the bag. The driver of the bus (PW4) in his cross-examination has stated that the bus was full of passengers and only five passengers were alighted from the bus and detained by the police, remaining were allowed to sit in the bus. - 5 - It is significant to note the cross-examination of Constable Ramesh Chand (PW2). He has stated that the appellant alongwith his accomplice was taken to the tent nearby which could accommodate only 2-3 persons. Head Constable Narain Singh was sitting in the tent and he did not remember who other persons were sitting therein. He has categorically stated that he and the appellant, both were outside the tent and the entire proceedings were going on, in the tent which included weighing of the charas and documentation. He expressed his ignorance about the presence of the alleged independent witnesses. He further stated that he did not remember that he alongwith others were enquiring as to whom the said unclaimed bag belonged. He also did not remember if five passengers were detained by the police for enquiry and others were allowed to sit in the bus. Even he expressed his ignorance if the signatures of the driver and conductor aforesaid were taken on blank papers on the pretext that the owner of the bag was not traceable. Whereas, the above defence when put the investigation officer in his cross-examination, was denied by him. As seen above, the statement of one of the official witness i.e. Constable Ramesh Chand (PW2) regarding the recovery of the bag containing the charas as alleged appears to be doubtful. Further, if he (PW2) had witnessed the recovery of Charas as alleged, he could have denied the above suggestions straight away, instead of feigning ignorance. We cannot place our explicit reliance on the documents prepared in the absence of the appellant in side the tent. In the given circumstances, implicit reliance cannot also be placed on the contradictory statements of the official witnesses, as they have contradicted on the material particulars. In view of the above, in our considered opinion, the judgment of conviction and sentence passed by the learned trial court is - 6 - unsustainable, therefore, it is set-aside; consequently the appeal is allowed. The appellant be set at liberty forthwith if not required in any other case. The fine if paid be refunded. (Surjit Singh) Judge (Surinder Singh) Judge March 20th, 2008. *Pds*