Himachal Pradesh High Court
Chamba vs State Of Goa on 5 July, 2022
Bench: Sabina, Satyen Vaidya
Reportable/Non-reportable
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE DAY OF 5th JULY, 2022
.
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL APPEAL No. 289 of 2021
Between:-
TAJ DEEN, S/O SH. NOOR MOHAMMAD,
AGED ABOUT 35 YEARS, R/O VILLAGE
KARMUND, P.O. TIKRIGARH, TEHSIL
CHURAH, DISTRICT CHAMBA, H.P.
PRESENTLY LODGED IN DIST. JAIL
CHAMBA, H.P.
....APPELLANT
(BY SH. N. K. THAKUR, SR. ADVOCATE WITH MR.
DIVYA RAJ SINGH, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH.
.... RESPONDENT
(SH. KAMAL KANT, DEPUTY ADVOCATE GENERAL)
---------------------------------------------------------------------------------------
This appeal coming on for hearing this day, Hon'ble
Mr. Justice Satyen Vaidya, delivered the following:
JUDGMENT
By way of instant appeal, appellant has assailed judgment dated 7.8.2021 and sentence order dated 31.8.2021, passed by the learned Special Judge, Chamba Division ::: Downloaded on - 06/07/2022 20:02:45 :::CIS -2- Chamba, H.P. in Sessions Trial No. 62 of 2018, whereby appellant has been convicted under Section 20 of Narcotic .
Drugs and Psychotropic Substances Act, 1985 (for short the Act) and has been sentenced to undergo rigorous imprisonment for a period of twelve years and to pay fine of Rs. 1,50,000/-.
In default of payment of fine, to further undergo rigorous imprisonment for a term of one year.
2. The prosecution case in brief is that on 7.7.2018 a police party belonging to State Narcotic Crime Control and Field Unit Kangra, while on routine patrolling duty had apprehended the appellant at place Zero Point Jassourgarh on Tikarigarh to Chamba Road at about 7.00 a.m. He was carrying a bag in his right hand. On search of the bag, 2.032 kg charas was recovered. The recovered contraband was seized and kept in the same bag, which was sealed with six seals of seal 'N'. The seizure memo Ext. PW7/D was prepared. NCB form Ext.
PW18/A in triplicate was filled. Facsimile of sample seal was preserved as Ext. PW7/C.
3. PW-18 SI Nirmal Singh prepared "Rukka" Ext.
PW7/E and sent the same to Police Station Tissa, through PW-
7, MHC Manohar Lal, for registration of FIR. The investigation was handed over to PW-17, ASI Surjeet Singh, who had reached ::: Downloaded on - 06/07/2022 20:02:45 :::CIS -3- on spot along with other police officials on receiving information about recovery of contraband. PW-17, ASI, Surjeet Singh was .
incharge of Police Post Nakrad, falling within the jurisdiction of Police Station, Tissa, District Kangra, H.P. ASI, Surjeet Singh reached the spot. Appellant was formally arrested. The case property along with appellant were taken to Police Station, Tissa and handed over to PW-14, SHO/ Inspector Surinder Kumar. The case property was re-sealed with six seals of TD and was deposited with PW-2, HC Pawan Kumar, who was posted as MHC, Police Station, Tissa. The requisite entry Ext.
PW2/A was made in Malkhana Register.
4. On 8.7.2018, PW-17, ASI Surjeet Singh produced the case property before JMFC, Chamba for conducting proceedings under Section 52A of the Act. Application Ext.
PW17/D with Annexure Ext. PW17/E was presented to the learned JMFC, Chamba, who passed order Ext. PW17/F and issued certificates Ext. PW17/G and Ext. PW17/H. Two samples of 26 grams each were drawn. The samples and remaining bulk were separately sealed with seal impression JM Chamba. Photographs of Court proceedings Ext. PW13/A to Ext. PW13/D were taken.
::: Downloaded on - 06/07/2022 20:02:45 :::CIS -4-5. One sample was sent to SFSL, Junga for chemical examination on 9.7.2018 through PW-6 and after the chemical .
analysis was received back in Police Station on 20.7.2018 through PW-12. The sample was found to be charas by SFSL, Junga vide report Ext. PX.
6. The bulk weighing 1.980 k.g. was destroyed in accordance with law on 28.9.2018 and certificate in this behalf was issued as Ext. PW14/C.
7. On completion of investigation, challan was prepared and presented before the Court. Appellant was tried in Sessions Trial No. 62 of 2018 and was convicted and sentenced, as noticed above.
8. We have heard learned counsel for the parties and have also gone through the record carefully.
9. Prosecution examined total 18 witnesses. PW-18, SI Nirmal Singh, PW-7, HHC Manohar Lal, PW-8 HHC Mohammad Aslam and PW-15, Constable Rockey Kumar were examined as spot witnesses. PW-17 ASI Surjeet Singh was the Investigating Officer. PW-2 HC Pawan Kumar deposed about the safe keeping of contraband in the Malkhana, its transit and receipt, entry in Malkhana Register Ext. PW2/A. PW-6 HHC Dharminder Kumar and PW-12 Constable Suresh Kumar ::: Downloaded on - 06/07/2022 20:02:45 :::CIS -5- proved the transit and safe custody of the sample from Police Station Tissa to SFSL Junga and back.
.
10. Sh. N. K. Thakur, learned Senior Advocate, representing the appellant raised the issue as to the mode and manner in which the sample was drawn during investigation of the case. He contended with vehemence that the sample sent to SFSL Junga was not the representative sample and hence the entire bulk allegedly recovered from the appellant cannot be stated to be the charas. As per him, at the most, the appellant can be said to have been found in possession of 26 grams of charas or at the most 52 grams of charas by taking weight of both the samples.
11. Recovery and seizure memo Ext. PW7/D reveals that the substance recovered from the bag found in possession of the appellant was in shape of sticks and bundle, which was solid and black in colour. All the spot witnesses i.e. PW-18, SI Nirmal Singh, PW-7, HHC Manohar Lal, PW-8, HHC Mohammand Aslam and PW-15, Constable Rockey Kumar have described the substance recovered from the appellant as black coloured hard substance in sticks and bundle shape, during their respective depositions before the learned trial Court.
::: Downloaded on - 06/07/2022 20:02:45 :::CIS -6-12. The substance recovered from the appellant was seized on spot on 7.7.2018 vide memo Ext. PW7/D and was .
produced before learned JMFC, Chamba on the next day i.e. 8.7.2018 by PW-17, ASI Surjeet Singh for proceedings under Section 52A of the Act. Thus, in addition to the above noted spot witnesses, JMFC, Chamba had the occasion to observe the substance produced before him. The order Ext. PW17/F recorded by learned JMFC, Chamba also described as under:
"Inside the bag there was hard black coloured substance, in the shape of sticks, which was rolled up together in the balls, which was stated to be cannabis".
13. Thus, it is quite evident from statements of spot witnesses, recovery and seizure memo Ext. PW7/D and order passed by the learned JMFC, Chamba Ext. PW17/F that the substance found from the possession of appellant was not a single mass. It was in the shape of sticks and bundle. The nature of the substance found was hard. The evidence on record goes to show that police had seized plurality of mass from possession of the appellant.
14. The prosecution has also relied upon spot photographs Ext. PW15/C and Ext. PW15/D. In both the photographs, the bag from which the substance was seized is ::: Downloaded on - 06/07/2022 20:02:45 :::CIS -7- visible in open form and the substance contained therein again does not appear to be a single mass. The remainder of the bulk .
substance left after drawing of sample was destroyed vide certificate Ext. PW14/C on 28.9.2018. The photographs evidencing destruction procedure have been placed on record as Ext. PW16/A to Ext. PW16/D. Perusal of these photographs also clearly reveals that the substance was having the plurality of mass.
15. Section 52A, sub-Section (2) of the Act reads as under:
"(2) Where any 4 [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-
charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such 4 [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the 4 [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the 4 [narcotic ::: Downloaded on - 06/07/2022 20:02:45 :::CIS -8- drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any .
Magistrate for the purpose of--
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such magistrate, photographs of 5 [such drugs, substances or conveyances] and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn".
16. As per requirement of above noted provision of the Act, the Officer incharge of Police station is required to prepare an inventory of the Narcotic Drugs Psychotropic Substance seized, containing details relating to description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars, as may be considered relevant, by the officer concerned and is further required to make an application to the Magistrate for the purposes specified in sub-section (2) of Section 52A of the Act, including permission to draw representative samples of such drugs or substances in the ::: Downloaded on - 06/07/2022 20:02:45 :::CIS -9- presence of such Magistrate and certifying the correctness of any list of samples so drawn.
.
17. The case of prosecution is that on 8.7.2018, PW17 ASI Surjeet Singh presented application Ext. PW17/D to learned JMFC, Chamba for the purposes of drawing proceedings under Section 52A (2) of the Act. The statement of PW-17 reveals that two samples of 26 grams each were separated by learned JMFC, Chamba. This witness does not state the mode and manner in which the samples were drawn.
Learned JMFC, Chamba has not been examined as witness. No other witness has stated on record that what was the mode and manner for drawl of samples. As per Section 52A (2) of the Act, the officer incharge is required to seek permission of Magistrate to draw representative samples. The order passed by the learned JMFC, Chamba Ext. PW17/F does not reveal that the proceedings have been conducted in accordance with law. Ext.
PW17/F simply states that out of the bulk cannabis, two samples of 26 grams each were taken out and were placed in two separate pieces of white paper, which further were sealed in cloth parcels. From the order Ext. PW17/F, it appears that the samples were drawn by learned JMFC, Chamba himself.
::: Downloaded on - 06/07/2022 20:02:45 :::CIS -10-18. There is no material on record to show or even suggest that the samples drawn were representative samples.
.
When the substance included plurality of mass, it was incumbent upon the prosecution to prove that the samples were representative of entire seized substance. The representative samples could be said to be available only when the seized substance was made homogeneous.
19. There is nothing in the prosecution evidence that any specific procedure was adopted for drawing a representative sample. This creates doubt about the very legitimacy of the case of the prosecution. To have credence, the sample had to be the representative samples of entire 2.032 k.g. of substance, failing which, it can be a case of recovery of only 26 grams of charas or at the most 52 grams of charas by including weight of second sample having entirely different legal consequences.
20. In AIR 1993 SC 1456, titled Gaunter Edwin Kircher vs. State of Goa, Secretariat Panji, Goa, it has been held as under:-
"5. The next and most important submission of Shri Lalit Chari, the leaned senior counsel appearing for the appellant is that both the courts below have erred in holding that the accused was found in ::: Downloaded on - 06/07/2022 20:02:45 :::CIS -11- possession of 12 gins. 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 Section 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 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 Section 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 ::: Downloaded on - 06/07/2022 20:02:45 :::CIS -12- 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 psychotropic 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 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 ::: Downloaded on - 06/07/2022 20:02:45 :::CIS -13- under a regular panchnama and as per the provisions of law.
.
21. We consider it appropriate to reproduce hereunder the observations and conclusions rendered by different Division Benches of this Court while dealing with identical or akin proposition from time to time.
22. In Khek Ram Vs NVB Criminal Appeal No. 450 of 2016 decided on 29.12.2017, paras 78 to 80 read as under:
"78. Additionally and more importantly, we notice that the entire bulk of the alleged contraband was not sent for analysis and only four samples of 25 grams each were, in fact, sent for analysis. Thus, taking the prosecution case at best what is proved on record is the recovery of only 100 grams of charas from the possession of the accused.
Admittedly, the alleged contraband was in different shapes and sizes in the form of biscuits and flat pieces.
79. Therefore, in this background, the question arise as to whether the entire bulk of 19.780 Kgs as was recovered, in absence of there being chemical examination of whole quantity, can be held to be charas.
80. This question need not detain us any longer in view of the authoritative pronouncement by the Hon'ble Supreme Court in Gaunter Edwin Kircher ::: Downloaded on - 06/07/2022 20:02:45 :::CIS -14- vs. State of Goa (1993) 3 SCC 145, wherein the Court was dealing with the alleged recovery of two cylindrical pieces of Charas weighing 7 grams and 5 .
grams each. However, only one piece weighing 5 grams was sent for chemical analysis and was established to be that of Charas. The learned trial Court convicted the accused by taking the total quantity to be 12 grams and such finding was affirmed by Hon'ble Supreme Court, however, reversing such findings.
23. In State Vs Naresh Kumar Criminal Appeal No. 782 of 2008 decided on 28.6.2019, paras 23 to 25 read as under:
"23. As quantum of recovery is concerned, as per prosecution case, 1 Kg. 500 grams charas was recovered from the respondent and after taking out two samples of 25 grams each, the remaining contraband was sealed in parcel and samples were also sealed in two different parcels. Bulk of charas claimed to be recovered from the respondent is Ext.P2 but during investigation and thereafter also, only one sample of 25 grams of charas was sent to CFSL Chandigarh for chemical analysis and as per chemical analyst report Ext. PX the sample was found to be of charas.
24. As per ratio laid down by the Apex Court in Gaunter Edwin Kircher vs. State of Goa, reported in ::: Downloaded on - 06/07/2022 20:02:45 :::CIS -15- (1993)3 SCC 145 the amount of contraband, recovered from the respondent, cannot be held more than that which was sent to the Chemical Analyst .
and was affirmed by the Forensic Science Laboratory as a contraband. The failure to send the entire mass for chemical analysis would result to draw inference that said contraband has not been analyzed and identified by CFSL as the charas.
25. Learned Single Judge of this Court in Dhan Bahadur vs. State of H.P. reported in 2009(2) Shim.L.C. 203, after relying upon the judgment in Gaunter Edwin Kircher's case supra, has held that only analyzed quantity of contraband can be said to have been recovered from the respondent. Applying the ratio of law laid down by the Apex Court and followed by learned Single Judge of this Court, we find that in the present case quantity of recovered contraband is to be taken as 25 grams only and therefore, respondent can be convicted for recovery of 25 grams charas from his conscious possession for which punishment has been provided under Section 20(b)(ii)(A) for a term which may extend the six months or with fine which may extend to Rs.10,000/- or/with both.
24. In State of HP Vs Sultan Singh and Others Criminal Appeal No. 324 of 2008, decided on 22.4.2016 para 16 reads as under:
::: Downloaded on - 06/07/2022 20:02:45 :::CIS -16-"16. Charas was recovered from three different packets. PW-8 Constable Bhupinder Singh has categorically admitted in his cross-examination that .
IO did not mix up contents of the packets Ext. P2 to P4. PW-10 ASI Ghanshayam himself has admitted in his cross-examination that he did not mix up the contents of three polythene packets. IO should not have continued with the preparing of documents till the police official, who was sent to get independent witnesses, came back. IO should have made entire contraband homogenous for the purpose of chemical examination."
25. In State of Himachal Pradesh Vs Sohan Singh Criminal Appeal No. 259 of 2009 decided, on 23.12.2015 para 16 reads as under:
"16. We have not understood why IO has sent PW-2 Hitender Kumar to an area which was not thickly populated instead of sending towards an area which was thickly populated to call independent witnesses. Case of the prosecution is that accused was given option to be searched before a gazetted officer or a Magistrate. He opted to be searched by the police. Consent memo is Ext. PW-1/A. According to the prosecution case, PW-2 Hitender Kumar was present on the spot and he was the person who has taken Rukka to Police Station. However, in his cross-examination he has denied that Ext. PW-1/A was prepared in his presence. He has also admitted ::: Downloaded on - 06/07/2022 20:02:45 :::CIS -17- that Ext. PW1/E was also not prepared in his presence. Thus, the presence of PW-2 Hitender Kumar at the spot is doubtful. Rukka was prepared .
at 11.30 pm by IO PW-12 Kishan Chand but was sent at 12.30 pm. According to HHC Padam Singh, samples were not taken homogenously. Few sticks were taken. According to PW12 Kishan Chand from all the four packets, samples were drawn. There is variance in the statements of PW-1 Padam Singh, PW-2 Hitender Kumar and PW-12 Kishan Chand whether sample was prepared homogenously or not entire contraband was required to be mixed homogenously for preparing samples to be sent for chemical examination to SFL."
26. Thus, from the entirety of evidence available on record, we are convinced that the sample of 26 grams examined by SFSL, Junga was not representative of entire bulk of substance and hence, the appellant cannot be held to have been found in conscious possession of 2.032 k.g. of charas.
The appellant can only be held to be in possession of 26 grams or at the most 52 grams of charas by including the weight of other sample, which as per Act is small quantity.
27. Accordingly, appellant is held guilty of offence under Section 20 of the Act for having been found in conscious possession of only small quantity of charas and is sentenced to ::: Downloaded on - 06/07/2022 20:02:45 :::CIS -18- undergo rigorous imprisonment for one year. The impugned judgment and sentence order passed by the learned trial Court .
is accordingly modified.
28. The appellant was arrested on 7.7.2018. He was ordered to be released on bail by Single Bench of this Court vide order dated 6.3.2019 and in compliance thereof, finally released on 8.5.2019. In this manner, the appellant had remained in custody from 8.7.2018 till 8.5.2019 i.e. for a period of ten months. Appellant is further undergoing the sentence, after passing of impugned judgment and sentence order.
Since the appellant has already undergone much more sentence than could be inflicted upon him, the appellant is ordered to be released immediately, if not required in any other case. The Registry is directed to prepare the release warrant forthwith. Records be sent back. The appeal is accordingly disposed of. Pending applications, if any, also stand disposed of.
(Sabina)
Judge
(Satyen Vaidya)
5th July, 2022 Judge
(kck)
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