Himachal Pradesh High Court
State Of Himachal Pradesh vs Mehar Chand on 18 July, 2016
Bench: Rajiv Sharma, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 197/2011
Reserved on: July 5, 2016
Decided on: July 7, 2016
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State of Himachal Pradesh ...... Appellant
Versus
Mehar Chand ........Respondent
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Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge
Hon'ble Mr. Justice Ajay Mohan Goel, Judge
of
Whether approved for reporting? 1 yes.
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For the appellant : Mr. V.S. Chauhan, Additional
Advocate General with Mr. Vikram
rt Thakur, Deputy Advocate General.
For the respondent :
Mr. T.S. Chauhan and Mr. Arjun
Lall, Advocates.
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Per Rajiv Sharma, Judge:
The State has come in appeal against Judgment dated 18.2.2011 rendered by the learned Special Judge, Fast Track, Kullu, Himachal Pradesh in Sessions Trial No. 44 of 2009, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Sections 20(b)(ii)(B) and 20(I)(a) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), has been acquitted by the learned trial Court.
2. Prosecution case, in a nutshell, is that on 21.12.2008, ASI Lal Chand alongwith other police officials was present at village Dhungri at about 5.30 PM in connection with 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:50:14 :::HCHP 2patrolling duty. He received a secret information that Jai Wanti had contracted marriage with one Mehar Chand, resident of village Kais. Mehar Chand was indulging in the business of .
selling brown sugar and Charas to general public from the house of Jai Wanti. As the information was reliable and police party had not time to obtain search warrant from the Court, so, Rukka /information was sent to Dy.SP Manali by the Incharge of the of patrolling party as per the provisions of Section 42 of the Act through Constable Sumer Bahadur. Thereafter, police party proceeded towards the house of accused. ASI Lal Chand called rt Pradhan of Gram Panchayat, Nasogi Shri Kehar Singh by contacting him on mobile and also Hukam, on his mobile. ASI asked both the persons to reach near the house of Jai Wanti. On the way to the house of Jai Wanti, Kehar Singh and Hukam Singh met the police party at about 5.50 PM. They were associated in the raiding party and police party reached the house of Jai Wanti at about 6.05 PM. Police party saw one person standing in the verandah of the house who disclosed his name as Mehar Chand. ASI told Mehar Chand that police wanted to search his house. House was searched in the presence of independent witnesses. Before entering the house, ASI gave his personal search to Mehar Chand in the presence of Kehar Singh and Hukam Chand. During the search of the house, police party found rucksack bag on a cot in the southern room in between the clothes. Bag was checked, in which one polythene envelope was ::: Downloaded on - 15/04/2017 20:50:14 :::HCHP 3 found. Polythene envelope was opened and police found Bhang/Charas in form of pancake and marbles in it. Police also recovered two small paper packets containing narcotic substance .
like heroin. It was found to be brown sugar. Police also recovered small hand balance and weights of 50 gram, 20 gram, 10 gram, 5 gram, 2 gram and 1 gram. Charas weighed 900 grams and brown sugar weighed 2 grams. IO has drawn two samples of Charas of weighing 25 grams each for the purpose of analysis and also drawn two samples of 1 gram each from brown sugar. Samples were wrapped in polythene envelopes and thereafter they were rt wrapped inside cloth. The Pullindas were sealed with seal impression 'O'. Rest of the Charas was also put in the same polythene envelope and thereafter wrapped in a piece of cloth.
Pullinda containing 850 grams of Charas was sealed with six seal impressions of seal 'O'. Specimens of seals were obtained on the pieces of cloth. IO also filled in NCB-I form in triplicate. Seal after use and after taking samples of seal was entrusted to Pradhan Kehar Singh. Rukka was sent to the Police Station. FIR was registered. Site map was prepared. Police party went to the Police Station at about 11.30 pm, where SI Om Prakash resealed the case property with seal impressions of 'R'. Incharge Police Station filled up relevant columns of NCB form and handed over case property to MHC Mohinder Singh at about 11.45 PM. IO also sent special report to Dy.SP Manali on 22.12.2008. Samples were sent to FSL for chemical analysis. Bulk Charas was also ::: Downloaded on - 15/04/2017 20:50:14 :::HCHP 4 sent for analysis during the course of trial. Investigation was completed. Challan was put in the Court after completing all the codal formalities.
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3. Prosecution has examined as many as eleven witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence.
Accused was acquitted as noticed above. Hence, this appeal by of the State.
4. Mr. V.S. Chauhan, Additional Advocate General with Mr. Vikram Thakur, Deputy Advocate General have vehemently rt argued that the prosecution has proved its case against the accused.
5. Mr. T.S. Chauhan and Mr. Arjun Lall, Advocates, have supported Judgment dated 18.2.2011.
6. We have heard the learned counsel for the parties and also gone through the Judgment and record carefully.
7. Kehar Singh (PW-1) is the independent witness. He testified that he was Pradhan, Gram Panchayat, Nasogi since 2005. ASI Lal Chand called him to village Nasogi on 21.12.2008 at about 5.30 PM. There was another person who was a resident of village Dhungri. He did not recall his name. Police was present in the house of Chuni Lal. Police had recovered Bhang. It was weighed in his presence. Charas weighed 900 grams and smack weighed 2 grams. Police sealed it and prepared documents. His signatures were obtained on the documents. He admitted his ::: Downloaded on - 15/04/2017 20:50:14 :::HCHP 5 signatures on Exts. PW-1/A, PW-1/B, PW-1/C and PW-1/D. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination by the learned Public .
Prosecutor, he has admitted that ASI Lal Chand made a telephonic call to him on 21.12.2008 that the police was to conduct search of house of Jai Wanti and he should reach the spot. He admitted that when Police party and Hukam Singh went of to the spot, accused was standing in the verandah. He also admitted that he disclosed that he had married Jai Wanti and was residing with her in the her house. He admitted that the rt police gave personal search to the accused prior to the search of the house of. Ext. PW-1/A was prepared to this effect. He admitted that when they went inside the house, a bag was lying on the Charpai. He did not recall this fact. He denied the suggestion that bag was opened in his presence and it was found containing Charas. He also denied that the bag was having a small polythene containing brown sugar. He admitted that one small scale and weights of 50 grams, 20 grams, 10 grams, 5 grams, 2 grams and 1 gram were found. He admitted that two samples each weighing 25 grams were separated from cannabis and remaining was put in the parcel and was also sealed. He admitted that three impressions of seal 'O' were put on each parcel. He also admitted that two samples each containing 1 gram heroin were prepared which were sealed with three seal impressions of 'O'. He admitted that police seized cannabis, ::: Downloaded on - 15/04/2017 20:50:14 :::HCHP 6 brown sugar, scale, roll of polythene vide seizure memo Ext. PW-
1/B. His signatures were also obtained on it. He also put his signatures on arrest memo Ext. PW-1/C. He admitted that his .
signatures were obtained on bulk parcel Ext. P1 and samples parcels Ext. P2 and Ext. P3. He admitted that the police recorded his statement vide mark A. He admitted that the accused was alone in the house on that day. In his cross-
of examination by the learned defence Counsel, he deposed that his signatures were obtained in the morning of 22.12.2008 by the police in the Police Station. He also admitted that Chuni Lal was rt not present in the house. He stated that Mehar Chand had not married Jai Wanti. He had seen the accused in the house of Jai Wanti only on that day.
8. HC Upender Singh (PW-2) deposed that the Dy.SP Ashish Sharma handed over an information under Section 42 on 21.12.2008 at about 6 PM vide Ext. PW-2/A. He made entry in the register at Sr. No. 15 vide Ext. PW-2/B.
9. SI Om Prakash (PW-3) deposed that ASI Lal Chand handed over two sample parcels of Charas and two sample parcels of brown sugar and one bulk parcel. Each sample parcel was sealed with three seal impressions of 'O' and the bulk parcel was sealed with six impressions of seal 'O'. He also handed over sample seal 'O', NCB-I form in triplicate at 11.30 AM on 21.12.2008. He resealed each sample parcel with three impressions of seal 'R' and bulk parcel was sealed with six ::: Downloaded on - 15/04/2017 20:50:14 :::HCHP 7 impressions of 'R'. Sample seal was taken separately on a piece of cloth and one such sample is Ext. PW-3/A. Column Nos. 9 to 11 of NCB form were filled in by him. He handed over all the parcels, .
sample seals, NCB-I form to MHC Mohinder Singh for depositing in Malkhana.
10. Constable Om Prakash (PW-4) has carried the contraband and relevant documents to FSL vide RC No. 209/08.
of He deposited the same with FSL on 26.12.2008.
11. Constable Sumer Bahadur (PW-5) deposed that Lal Chand received a secret information that accused was residing in rt the house of Jai Wanti and was selling Charas. Information was reduced into writing vide Ext. PW-2/A. It was handed over to him to carry to the Dy.SP Manali at 5.35 PM. He handed over the same to Dy.SP Manali at 6 PM.
12. Mohinder Singh (PW-6) testified that SI Om Prakash handed over five parcels, NCB-I form in triplicate, copy of FIR, copy of seizure memo, sample seals 'O' and 'R' to him on 21.12.2008. One parcel was sealed with six impressions of seal 'A' and six impressions of seal 'R', two samples, each sealed with three impressions of seals 'O' and 'R' each, two other samples sealed with seals 'O' and 'R'. He made entry at Sr. No. 585 in the Malkhana Register vide Ext. PW-6/A. He filled in column No. 12 of the NCB form, Ext. PW-3/B. Road certificate was issued. He handed over case property to constable Om Prakash to be carried to FSL Junga vide RC No. 209/08. Case property remained intact ::: Downloaded on - 15/04/2017 20:50:14 :::HCHP 8 till it remained in his custody. In his cross-examination, he has admitted that there was only one entry of sending sample to FSL and there was no entry of taking out case property from the .
Malkhana.
13. Inspector Sanjay Sharma (PW-9) deposed that ASI Lal Chand handed over the case file to him on the completion of investigation and on the receipt of the report of analysis Ext. PW-
of 9/A. He prepared the Challan and presented the same in the Court. Bulk parcel was sent during the course of trial to FSL. FSL report is Ext. PW-9/A. rt
14. HC Bhupinder (PW-10) testified the manner in which secret information was recorded and sent to Dy.SP Manali through constable Sumer Bahadur by ASI Lal Chand. Raiding party was constituted. Pradhan, Gram Panchayat Kehar Singh and another person met them on the way. They were associated by them. They reached the house of Jai Wanti at 6.05 PM.
Accused was present in the verandah. He revealed his name as Mehar Chand. ASI Lal Chand gave his personal search to the accused in his presence. Accused was told that police wanted to search the house. Memo Ext. PW-1/A was prepared. Search of house was conducted. Bag was found. It was opened and it was found containing polythene bag. Charas was found inside the polythene bag in the shape of pancakes and balls. Small packets made of lined papers were found. They contained brown sugar.
One roll of wrapping paper was found inside the bag. Another ::: Downloaded on - 15/04/2017 20:50:14 :::HCHP 9 polythene bag containing balance and weights of 50, 20, 10, 5, 2 and 1 grams were found. Charas weighed 900 grams. Brown sugar weighed 2 grams. Two samples each weighing 25 grams .
were separated for the purpose of analysis. Samples each containing 1 gram brown sugar were also prepared. These samples were packed in different pieces of cloth. Sample was sealed with three impressions of seal 'O'. Bulk Charas was put of back in same envelope from which it was recovered. All the articles were seized vide memo Ext. PW-1/B which was signed by him, Pradhan Kehar Singh and other person who was present rt with them. Rukka mark B was prepared and handed over to him with the direction to carry it to Police Station Manali. He handed over the Rukka to ASI Brij Lal, who recorded the FIR and handed over the case file to him. In his cross-examination he denied that signatures of Hukam Singh were forged. He denied the suggestion that Hukam Singh and Kehar Singh were not called telephonically. He denied that Kehar Singh Pradhan was only called at Police Station. He further denied the suggestion that no cannabis was recovered from the possession of accused from the house of Jai Wanti. He denied the suggestion that the accused did not reside in the house of Jai Wanti.
15. ASI Lal Chand (PW-11) testified that he received a secret information. Copy of information is Ext. PW-2/A. It was sent to the Dy.SP Manali through Constable Sumer Bahadur.
Thereafter police proceeded to the house of Jai Wanti. They ::: Downloaded on - 15/04/2017 20:50:14 :::HCHP 10 reached there at 6.05 PM alongwith Kehar Singh and Hukam Singh, independent witnesses. Accused was found standing in the verandah. Accused was apprised that they wanted to search .
the house. Search of house was conducted. Contraband was recovered. All the codal formalities were completed at the spot.
Case property was taken into possession. He prepared Rukka and sent the same to Police Station. Case property was produced of before SI Om Prakash. He resealed the same. He also prepared special report. In his cross-examination, he denied the suggestion that no secret information was received by him or that rt he had not sent the same through Sumer Bahadur to Dy.SP Manali. He denied the suggestion that Hukam Singh was not with them or that he has not signed the documents. He denied the suggestion that the documents were prepared in the Police Station. He also denied the suggestion that since accused had declined to become witness, therefore false case was made against him.
16. A Secret information was received by PW-11 Lal Chand. He reduced the same into writing. It was sent to Dy.SP Manali. He associated two witnesses PW-1 Kehar Singh and Hukam Singh. Accused had married Jai Wanti. When they reached the house of Jai Wanti, accused was in the verandah.
He disclosed his identity. He was told by the police that they wanted to search the house. House was searched. Charas and brown sugar were recovered. Codal formalities were completed at ::: Downloaded on - 15/04/2017 20:50:14 :::HCHP 11 the spot. Contraband was produced before SI Om Prakash (PW-
3). Samples were sent to FSL through PW-4 Constable Om Prakash. Bulk Charas was also sent to FSL Junga through .
Constable Sumer Bahadur on 18.12.2009. Contraband was found to be Charas as well as brown sugar as per reports, Ext.
PW-9/A and Ext. PW-9/B. Learned trial Court acquitted the accused on the ground that the police has not proved ownership of of the house. However, fact of the matter is that PW-1 Kehar Singh though declared hostile, but has categorically deposed that the accused disclosed that he was married to Jai Wanti and was rt residing with her in her house. PW-10 Bhupinder has also deposed that secret information was received by ASI Lal Chand that accused had married Jai Wanti and was residing with her in her house and was selling narcotics. PW-11 ASI Lal Chand has also deposed that information was received that Mehar Chand had married Jai Wanti and was residing with her at Gharat Aage near Nasogi and was dealing in brown sugar and Charas. Police was not required to prove ownership of the house. Police had prior information that accused was residing in the house of Jai Wanti. Accused was found standing in verandah of the house owned by Jai Wanti. PW-1 Kehar Singh Pradhan Gram Panchayat Nasogi, though was declared hostile but admitted his signatures on Exts. PW-1/A, PW-1/B, PW-1/C and PW-1/D. He has deposed that the contraband was not recovered in his presence. But he has admitted that they had gone inside the ::: Downloaded on - 15/04/2017 20:50:14 :::HCHP 12 house. He has admitted that one scale and weights of 50, 20, 10, 5, 2 and 1 gram were recovered. He admitted that two samples each weighing 25 grams were separated from cannabis and .
remaining was put in the parcel and was also sealed. He admitted that three impressions of seal 'O' were put on each parcel. He also admitted that two samples each containing 1 gram heroin were prepared which were sealed with three seal of impressions of 'O'. He admitted that the contraband was taken into possession vide Ext. PW-1/B. He has admitted that his statement was recorded by the police vide mark B. He admitted rt his signatures on bulk parcel Ext. P1 and sample parcels Ext. P2 and Ext. P3. PW-10 Bhupinder has also deposed the manner in which secret information was received. Police party went to the house of Jai Wanti where accused was found standing in the verandah and contraband was recovered and all the codal formalities were completed. He was handed over Rukka. He took it to the Police Station, on the basis of which FIR was recorded.
Statement of PW-10 Bhupinder has duly been corroborate by PW-
11 Lal Chand. Case property and NCB form were produced by him before S.I. Om Prakash. He resealed the same with seal impression of 'R'. Case property was resealed by Om Prakash. It was deposited with MHC Police Station Manali by SI Om Prakash. He deposited the same in Malkhana. He filled in column No. 12 of NCB form Ext.PW-12/B. Case property was sent by him to FSL Junga through Constable Om Prakash on 25.12.2008. He ::: Downloaded on - 15/04/2017 20:50:14 :::HCHP 13 deposited the same with FSL on 26.12.2008. Bulk property was sent to FSL Junga as noticed herein above through Sumer Bahadur. Case property has reached FSL Juna intact and all the .
seals were found intact. It was also accompanied by NCB form.
Report is Ext. PW-9/B. Samples were also sent through Om Prakash on 26.12.2008 and bulk was sent to FSL through Sumer Bahadur on 18.12.2008. According to the reports, the of contraband was found to be Charas.
17. Accused has not challenged the reports Ext. PW-9/A and Ext. PW-9/B. These reports were per se admissible. It was rt not necessary for the police to examine Constable Sumer Bahadur, who has taken bulk Charas to FSL on 18.12.2009. In fact, bulk was also deposited in Malkhana as per Ext. PW-6/A. Prosecution has conclusively proved that house was searched in the presence of PW-1 Kehar Singh and official witnesses. It was not necessary for the prosecution to prove that a particular room was occupied by accused. It was sufficient that accused was found in the house since he was living with his wife Jai Wanti, in her house. According to learned trial Court, accused was not alone in the house on that day. Prosecution has proved to the hilt that accused was living in the house of Jaiwanti and he was in conscious and exclusive possession of the contraband recovered from him. PW-1 Kehar Singh has also deposed, as noticed hereinabove, that the accused at the time of the search was all alone. Loss of weight of 50 grams is minimal. It could be ::: Downloaded on - 15/04/2017 20:50:14 :::HCHP 14 due to weather conditions prevailing in the area where the sample/bulk was kept.
18. Judgment relied upon by the learned trial Court in .
Sunil vs. State has been overruled by this Court in the case of State of H.P. vrs. Mehboon Khan and analogous matters, reported in Latest HLJ 2014 (HP) (FB) 900. The Full Bench of this Court has categorically held that there is no legal of requirement of the presence of particular percentage of resin to be there in the sample and the presence of the resin in purified or crude form is sufficient to hold that the sample was that of rt Charas. It has been held as follows:
"..............The separated resin is cannabis resin not only when it is in 'purified' form, but also when in 'crude' form or still mixed with other parts of the plant. Therefore, the resin mixed with other parts of the plant i.e. in 'crude' form is also charas within the meaning of the Convention and the Legislature in its wisdom has never intended to exclude the weight of the mixture i.e. other parts of the plant in the resin unless or until such mixture proves to be some other neutral substance and not that of other parts of the cannabis plant. Once the expert expressed the opinion that after conducting the required tests, he found the resin present in the stuff and as charas is a resinous mass and after conducting tests if in the opinion of the expert, the entire mass is a sample of charas, no fault can be found with the opinion so expressed by the expert nor would it be appropriate to embark upon the admissibility of the report on any ground, including non-mentioning of the percentage of tetrahydrocannabinol or resin contents in the sample..............
f. We are also not in agreement with the findings recorded by the Division Bench in Sunil's case that " mere presence of tetrahydrocannabinol and cystolithic hair without there being any mention of the percentage of tetrahydrocannabinol in a sample of charas is not an indicator of the entire stuff analyzed to be charas" for the reason that the statute does not insist for the presence of percentage in the stuff of charas and mere presence of tetrahydrocannabinol along with cystolithic hair in a sample stuff is an indicator of the same being the resin of cannabis plant because the cystolithic hair are present only in the cannabis plant. When after observing the presence of tetrahydrocannabinol and cystolithic hair, the expert arrives at a conclusion that the sample contains the resin contents, it is more than sufficient to hold that the sample is of charas and the view so expressed by the expert normally should be honoured and not called into question. Of course, neutral ::: Downloaded on - 15/04/2017 20:50:14 :::HCHP 15 material which is not obtained from cannabis plant cannot be treated as resin of the cannabis plants. The resin rather must have been obtained from the cannabis plants may be in 'crude' form or 'purified' form. In common parlance charas is a hand made drug made from extract of cannabis plant. Therefore, any mixture with or without any neutral material of any of the .
forms of cannabis is to be considered as a contraband article.
No concentration and percentage of resin is prescribed for 'charas' under the Act"
19. Prosecution was required to prove only that accused was residing in the house of Jai Wanti. Prosecution has proved of beyond reasonable doubt that the contraband was recovered from the conscious and exclusive possession of the accused
20. Accordingly, the appeal is allowed. Judgment dated rt 18.2.2011 rendered by the learned Special Judge, Fast Track, Kullu, Himachal Pradesh in Sessions Trial No. 44 of 2009 is set aside. The accused is convicted for the commission of offence punishable under Sections 20 (b)(ii)(B) and 20(I)(a) of the Narcotic Drugs & Psychotropic Substances Act, 1985. Accused be produced to be heard on quantum of sentence on 18.7.2016. Bail bonds of the accused are cancelled.
21. Registry is directed to prepare and send the production warrant to the quarter concerned.
(Rajiv Sharma) Judge (Ajay Mohan Goel) Judge July 7, 2016 (vikrant) ::: Downloaded on - 15/04/2017 20:50:14 :::HCHP