IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.203 of 2007 Date of Decision : 6.5.2008 Devi Ram …Appellant. Versus: State of H.P. …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant: Mr. Sunil Chaudhary, Advocate. For the respondent : Mr. Vivek Thakur, Addl. A. G. with Ms. Shubh Mahajan, Dy. A. G. Sanjay Karol, J. (Oral). The present appeal arises out of the judgment dated 15.3.2007 passed by the Special Judge, Mandi, H. P., in Sessions Trial No. 34 of 2004, titled as State of H.P. v. Devi Ram, convicting the accused of the charged offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act and sentencing him to undergo rigorous imprisonment for 8 years and a fine of Rs.80,000/- and in default thereof to further undergo imprisonment for one year. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 On 2.2.2004 ASI Madan Lal (PW-8), HC Gandhi Ram, Constable Munshi Ram, Vijay Kumar and Sant Ram (PW-3) were on traffic checking duty at Khoti Nalah when at about 2.15 P.M. a private bus bearing No. HP-39-6565 which was on its way from Kullu was stopped by the police party by giving signal. Shri Parveen Singh (PW-1) and Shri Karam Singh (PW-6) were the driver and conductor of the bus at the relevant time. The bus was stopped by them and PW-8 along with other police officials started checking the documents of the bus. They along with PW- 1 & PW-6 entered the bus and started checking the passengers and their luggage. When the police party reached seat Nos. 35, 36 & 37, they found that the accused who was occupying the seat alone had kept a bag on his legs. The bag was checked and it was so found that the accused was carrying Charas in the form of sticks. Shri Sant Ram (PW-3) was deputed by ASI Madan Lal to arrange the balance along with scale which was procured from the shop of Tej Ram (PW-2). The contraband was weighed and the weight was found to be one kg. Two samples of 25 gms. each were prepared and sealed separately and seal ‘T’ was affixed thereupon by PW-8 at 6 places. Remaining contraband of 950 gms. (Ext.P-7) was sealed and kept separately in a polythene bag Ext.P-6 and again put and kept in the bag Ext.P- 5. The same was also sealed. The sealed sample along with the specimen of seal, was obtained on the piece of cloth and handed over to Shri Karam Singh. The contraband was recovered vide 3 recovery memo Ext.PA which was witnessed by PW-1 & PW-6. NCB form Ext.PK was filled up at the spot. Form of search and seizure was also prepared and signed by the witnesses and the accused. Rukka Ext.PG prepared by PW-8 was sent through PW- 3 to police station for registration of the case which was handed over to MHC Raj Kumar (PW-7) and FIR No.16/2004 (Ext.PH) dated 2.2.2004 was registered with Police Station Aut, Distt. Mandi, H.P. under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. PW-3 handed over the file to PW-8 and further proceedings were carried out at the spot. Special report Ext.PC was also sent on 3.2.2004. Case property was handed over in safe custody to SHO Dabe Ram (PW-5). One sealed sample was sent for chemical analyses to CTL, Kandaghat along with the FIR, NCB and other documents. After the receipt of the report, the challan was presented in the Court for trial. The accused was charged for an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, to which he did not plead guilty and claimed trial. In order to prove its case, the prosecution examined 8 witnesses and the statement of the accused under Section 313 Cr.PC was also recorded. The accused took the defence of false implication. Appreciating the material on record, the Court below convicted the accused for the charged offence and sentenced him to undergo rigorous imprisonment for a period of 8 years 4 along with fine of Rs.80,000/- and in default thereof to further undergo imprisonment for one year. Learned counsel for the appellant has made the following submissions:- i) The independent witnesses PW-1 & PW-2 have not supported the prosecution case and the testimony of ASI Madan Lal (PW-8) and Sant Ram (PW-3),the police officials cannot be relied upon to convict the accused; ii) No other independent witness was associated by the police party. iii) The accused must be given the benefit of the ratio of law laid down in Dharam Pal vs. State of H.P. (2007(2) SLC 19). Per contra, the learned counsel for the State has supported the judgment for the reasons stated therein. I have heard the learned counsel for the parties and perused the record. From the testimonies of Shri Tej Ram (PW-2), Shri Ajit Singh (PW-4), Shri Dabe Ram (PW-5) and Shri Raj Kumar (PW-7), it is evident that the FIR was registered on the basis of rukka/information sent by ASI Madan Lal (PW-8). The sealed samples were received by the SHO in the police station and they were sent for chemical analyses and report Ext.PK/1 was obtained. The Chemical Examiner, CTL, Kandaghat has opined that the sealed sample contained the contents of charas (resin 32.07%). 5 Shri Parveen Singh (PW-1) and Shri Karam Singh (PW-6), driver and conductor of the bus in question no doubt were declared hostile and cross-examined by the Public Prosecutor but, however, they have admitted the seizure of the contraband and also their signatures on recovery memo Ext.PA. They have also admitted their signatures on sealed parcel Ext.P- 1 to Ext.P-4. They have admitted that they were on duty and were in the bus at the relevant time and place of the occurrence of the incident. They have also admitted that the police party, including PW-3 & PW-8 who were on traffic duty had stopped their bus checked the documents and the bus. Thus, recovery duly stands proved by them. The sequence of events as per the prosecution case duly stands corroborated and proved by them to a large extent. ASI Madan Lal (PW-8) and Sant Ram (PW-3) official witnesses who were also present at the spot at the relevant time have unambiguously proved the fact that the accused who was sitting alone on seat Nos. 35, 36 & 37 was carrying a bag Ext.P- 5 on which words ‘Lovers House’ were written on the outer portion. Upon checking in the presence of PW-1 & PW-6 , they found the bag contained charas. They have also proved the recovery of the contraband from the said bag carried by the accused. Weighing of the contraband and the preparation of the NCB form Ext.PK; taking of the sample and sealing thereof has also been proved by them. The witnesses have clearly deposed 6 the complicity of the accused in the commission of the crime beyond reasonable doubt. According to them, PW-1 & PW-6 were present at the spot at the time when the contraband was seized. The seizure memos were prepared in the presence of these witnesses and signatures of the witnesses were obtained as such. I have gone through the sworn testimonies of PW-3 & PW-8 carefully and there is nothing which would impeach their credibility or render their version to be doubtful or in any manner show the innocence of the accused. Their testimonies are clear, consistent and cogent. The guilt of the accused stands proved clearly. Simply because they are police officials that by itself would not render the prosecution story to be doubtful. It is not the case where no independent witness was associated and examined. PW-1 & PW-6 were independent witnesses and were examined as such. The absence of any other independent witness would not render the prosecution version to be doubtful or suspicious. While recording their depositions, the demeanor of the witnesses have been noticed and recorded by the Court below. The trial Court has held that the independent witnesses have not come out with true version. Therefore, I see no reason to interfere and the submission made by the learned counsel for the appellant is rejected. The accused, however, has to be given benefit of the ratio laid down in Dharam Pal (supra). As per Ext.PK/PK/1, the 7 Chemical Examiner opined that the sealed sample contained the contents of charas (resin 32.07%). Therefore, the accused cannot be said to have carried one kg. of charas and the total weight of the charas would be 32.07 gms. This position is not disputed by the learned counsel for the State. Therefore, the appeal is partly accepted on the quantum of sentence. The sentence awarded by the trial Court was on the assumption that the quantity possessed was commercial. The sentence is, therefore, substituted by a sentence of 5 years rigorous imprisonment and a fine of Rs.20,000/- and in default thereof to further undergo imprisonment for 6 months. The appellant shall undergo this sentence. The appeal stands partly allowed and disposed of accordingly. ( Sanjay Karol ), Judge. May 6, 2008 (rana)