Himachal Pradesh High Court
Nadaun vs Ncb on 7 September, 2022
Bench: Sabina, Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 7th DAY OF SEPTEMBER, 2022
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SUSHIL KUKREJA
CRIMINAL APPEAL No.456 of 2019 alongwith connected matter.
Between:-
Cr. Appeal No. 456 of 2019
RAJESH KUMAR SON OF SHRI
PRITAM CHAND, AGE 30 YEARS,
R/O VILLAGE KOTLU, P.O. UTTAP,
POLICE STATION BADSAR, TEHSIL
NADAUN, DISTRICT HAMIRPUR,
H.P.
.... APPELLANT
(BY MR. ASHOK KUMAR,
ADVOCATE.)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MR. VIKRANT CHANDEL,
DEPUTY ADVOCATE GENERAL)
Cr. Appeal No. 430 of 2019
ASHOK KUMAR SON OF SHRI
DHYAN CHAND, RESIDENT OF
VILLAGE DASWIN, POST OFFICE
GALOD, POLICE STATION BADSAR,
TEHSIL NADAUN, DISTRICT
HAMIRPUR AGED ABOUT 30 YEARS.
.... APPELLANT
::: Downloaded on - 07/09/2022 20:09:47 :::CIS
2
(BY MR. ASHWANI KAUNDAL,
ADVOCATE)
AND
.
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MR. VIKRANT CHANDEL,
DEPUTY ADVOCATE GENERAL)
Cr. Appeal No. 506 of 2019
SIKANDAR KUMAR S/O SH.
LASHKARI RAM R/O VILLAGE
BHADOLI BAGHOR, P.O JALAHAN,
POLICE STATION & TEHSIL
NADAUN, DISTT. HAMIPUR
AGED 48 YEARS.
r .... APPELLANT
(BY MR. VINOD K. GUPTA,
ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MR. VIKRANT CHANDEL,
DEPUTY ADVOCATE GENERAL)
Reserved on : 5th September, 2022.
Decided on : 7th September, 2022.
This appeal coming on for pronouncement of judgment this
day, Hon'ble Ms. Justice Sabina, delivered the following:
::: Downloaded on - 07/09/2022 20:09:47 :::CIS
3
JUDGMENT
Vide this order above mentioned three appeals would be disposed of, as these have arisen out of common judgement/order .
dated 30.05.2019/10.06.2019 passed by the Special Judge, Chamba.
2. Prosecution story, in brief, is that on 10th April, 2018 police party was present at Chauda, near the tunnel in official vehicles No. HP48-4443 and HP-73-8754. Vipin Kumar, who was present at the spot, was also joined with the police party. At about 11.35 p.m. one swift car of white colour bearing No. HP55-B-6565 came towards Chauhra dam side from Taleru dam. The said car was signaled to stop. Three persons were travelling in the car. On enquiry, the driver disclosed his name as Sikander, whereas the person sitting on the front seat disclosed his name as Rajesh Kumar and the person sitting on the rear seat disclosed his name as Ashok Kumar. All the three occupants of the car got perplexed. The driver was asked to open the dickey and on checking it was found that one bag of cream colour was lying near the tyre inside the dickey. When the carry bag was checked, it was found that it contained one transparent poly packet containing hard substance in black colour in sticks and bundle form. The said hard substance was found to be of charas. On weighment, the contraband came to be 1.666 kgs. alongwith carry bag and poly packet. The recovered contraband was again kept in the poly packet ::: Downloaded on - 07/09/2022 20:09:47 :::CIS 4 and thereafter in the carry bag and the same was put in a cloth parcel and sealed with seal bearing impression "CF". The case property was taken in possession. Ruqa was sent to the Police Station for .
registration of F.I.R. Thereafter, SI/SHO Surjeet Singh arrived at the spot alongwith other police officials. The case property was produced before the Stationed House Officer.
3. SHO Surjeet Singh after verifying the facts resealed the case property with seal bearing impression "A". NCB form was prepared in triplicate and seal impression was also affixed on the form.
Statements of the witnesses were recorded. Accused were arrested and were got medically examined. The case property was deposited with MHC Police Station Khairi alongwith NCB form. The case property was taken out from Malkhana for conducting the proceedings under Section 52-A of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'the Act'). An application was moved to the Magistrate and inventory of the contraband was prepared. The Magistrate issued certificate Ex.PW-19/J and Ex.PW-
19/K and handed over two sample parcels weighing 26 gram each alongwith bulk contraband to SI Surjeet Singh. One sample was sent to Forensic Science Laboratory for examination and as per report Ex.PX sample was opined to be of 'Charas'.
::: Downloaded on - 07/09/2022 20:09:47 :::CIS 54. After completion of investigation and necessary formalities, challan was presented against the accused. Charge was framed against the accused under Sections 20(b)(ii)(C) and 29 of the Act.
.
5. Accused did not plead guilty to the charge framed against them and claimed trial.
6. In order to prove its case, prosecution examined 20 witnesses during trial. Accused when examined under Section 313 of the Code of Criminal Procedure, prayed that they were innocent and a false case has been registered against them. The appellants did not examine any witness in their defence.
7. Trial Court vide judgment/ order dated 30.05.2019/10.06.2019, convicted and sentenced the accused as under:-
Section 20 (b) (ii) (C) : Rigorous imprisonment for eleven years of Narcotic Drugs and each and to pay a fine of Rs. 1,10,000/-
Psychotropic (Rs. One lac and ten thousand only) each.
Substances Act, 1985 In default of payment of fine, they shall further undergo rigorous imprisonment for one year each.
Section 29 of Narcotic : Rigorous imprisonment for eleven years Drugs and each and to pay a fine of Rs. 1,10,000/- Psychotropic (Rs. One lac and ten thousand only) each. Substances Act, 1985 In default of payment of fine, they shall further undergo rigorous imprisonment for one year each.::: Downloaded on - 07/09/2022 20:09:47 :::CIS 6
All the sentences shall run concurrently. The period of detention undergone by the convicts shall be set off as per the .
provisions contained in Section 428 of the Code of Criminal Procedure.
8. Hence, the present appeals by the appellants.
9. Learned counsel for the appellants has submitted that the sample examined by the Forensic Science Laboratory weighed 25.633 grams and there was no evidence on record to prove that the sample, which was examined in the laboratory, was representative sample drawn out of the recovered contraband from the appellants.
10. Shri Vikrant Chandel, learned Deputy Advocate General, on the other hand, has opposed the appeals and has submitted that the prosecution had been successful in proving its case as the prosecution witnesses have duly supported the prosecution case.
11. As per the prosecution story, 1.666 Kgs of charas was recovered from the dickey of the car, in which all the appellants were travelling. As per PW-18 Head Constable Varinder Singh, recovered contraband was in the shape of sticks and bundle. The testimony of PW-18 HC Varinder Singh in this regard is corroborated by PW-14 HHC Manohar Lal, PW- 13 Constable Sanjay Kumar, PW-12 HHC Mohammad Aslam, PW-6 Constable Upinder Chona, PW-5 Sunil ::: Downloaded on - 07/09/2022 20:09:47 :::CIS 7 Kumar. PW-1 Vipin Kumar, independent witness, however, did not support the prosecution case during trial.
12. Ex.PW-19/G is the order passed by the Magistrate dated .
11th April, 2018. A perusal of the said order reveals that the case property bearing five seal impressions "CF" and five seal impressions "A" containing 1 Kg. 666 grams charas was produced before him.
When the parcel was opened, it contained charas in the form of sticks.
After satisfying himself about the correctness of the inventory prepared in the case, he had drawn two samples of the contraband weighing 26 gram each and made them into two separate sealed parcels. The remaining contraband was resealed in the cloth parcel with three seals of the Court. The case property was then handed over to SI/SHO Surjeet Singh.
13. Thus, as per the evidence on record, the seized contraband was in the shape of sticks and bundle. Two samples, weighing 26 grams each, were drawn by the Magistrate, Dalhousie.
PW-18 Head Constable Varinder Singh has not deposed anything about the mode and manner, in which the samples were drawn from the contraband. Magistrate, Anish Kumar, who had drawn the samples, has not been examined as a witness during trial. However, the order passed by the Magistrate Ex.PW-19/G has been carefully perused. A perusal of the said order also does not show that while ::: Downloaded on - 07/09/2022 20:09:47 :::CIS 8 drawing the samples the recovered contraband was made into a homogeneous mixture and thereafter representative samples were drawn. The recovered contraband were in the shape of sticks and .
bundle and in such a situation it was incumbent upon the prosecution to establish that the representative samples had been drawn out of the entire recovered contraband. There is nothing on record to establish that any specific procedure was adopted for drawing a representative sample. In this situation the prosecution story becomes doubtful.
14. Ex.PX is the report of the Forensic Science Laboratory. A perusal of the same reveals that one sealed cloth parcel was received and on opening the said parcel, it was found that the substance was in the form of two sticks bundles and the net weight of the substance was 25.633 grams. After examination, it was opined that the exhibit was extract of cannabis and sample of 'charas'. Thus, the contraband which reached the Forensic Science Laboratory for examination weighed 25.633 grams and was in the shape of two sticks bundles.
15. Since in the present case there is no evidence on record to establish that representative samples, out of the entire recovered contraband, had been drawn, hence, it can be said to be a case of recovery of only 25.633 grams of charas.
::: Downloaded on - 07/09/2022 20:09:47 :::CIS 916. In Khek Ram Vs NCB, Criminal Appeal No. 450 of 2016 decided on 29.12.2017, Division Bench of this High court held 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 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.
17. In State Vs Naresh Kumar, Criminal Appeal No. 782 of 2008 decided on 28.6.2019, Division Bench of this High court held as under:
::: Downloaded on - 07/09/2022 20:09:47 :::CIS 10"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 (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.::: Downloaded on - 07/09/2022 20:09:47 :::CIS 11
18. In State of HP Vs Sultan Singh and Others Criminal Appeal No. 324 of 2008, decided on 22.4.2016, Division Bench of this .
High court held as under:
"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."
19. In State of Himachal Pradesh Vs Sohan Singh, Criminal Appeal No. 259 of 2009 decided, on 23.12.2015, Division Bench of this High court held 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 that Ext. PW1/E was also not prepared in his presence. Thus, the ::: Downloaded on - 07/09/2022 20:09:47 :::CIS 12 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."
20. Thus, from the evidence available on record, we are of the opinion that the sample weighing 25.633 gram of charas examined by the Forensic Science Laboratory was not the representative sample of the entire bulk and therefore appellants cannot be held to have been found in illegal conscious possession of 1.666 Kgs. of charas and they can be held to be in possession of 25.633 gram of charas or at the most 52 gram of charas by including the weight of other sample, which, as per the Act, would fall within the definition of small quantity.
21. Accordingly, appellants are held guilty of offence under Section 20 of the Act for having been found in conscious possession of only small quantity of charas and are sentenced to undergo rigorous imprisonment for one year. Consequently, the sentence of the appellants under Section 29 of the Act is also reduced from 11 years rigorous imprisonment to rigorous imprisonment for one year. The sentence qua fine is set-aside under Section 20 and 29 of the Act. The ::: Downloaded on - 07/09/2022 20:09:47 :::CIS 13 impugned judgment of conviction and order of sentence passed by the learned trial Court is accordingly modified.
22. The appellants were arrested on 11.04.2018. They .
remained in judicial custody till the conclusion of trial and thereafter are undergoing the sentence. Since the appellants have already undergone much more sentence than could be inflicted upon them, the appellants are ordered to be released immediately, if not required in any other case. The Registry is directed to prepare the release warrant forthwith.
23. In view of the provisions of Section 437 of Code of Criminal Procedure, 1973, appellants are directed to furnish their personal bond in the sum of Rs. 25,000/- each with one surety in the like amount each before the learned Registrar (Judicial) of this Court, which shall be effective for a period of six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Supreme Court.
24. The appeals are accordingly disposed of. Records be sent back. Pending applications, if any, also stand disposed of.
(Sabina) Judge (Sushil Kukreja) th 7 September, 2022 ™ Judge ::: Downloaded on - 07/09/2022 20:09:47 :::CIS