Himachal Pradesh High Court
Krishan Gopal vs State Of H.P on 10 December, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 372 of 2007
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Judgment Reserved on 3rd December, 2019
Date of Decision 10th December 2019
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Krishan Gopal ....Appellant
Versus
State of H.P. ....Respondent
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Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, J.
Whether approved for reporting?1 Yes ______________________________________________________________ For the Appellant: Mr.Ajay Sharma, Senior Advocate with Mr.Amit Jamwal, Advocate.
For the Respondent: Mr. Kamal Kant, Deputy Advocate General _____________________________________________________________ Vivek Singh Thakur, J.
This appeal has been preferred against judgment dated 28.9.2007/29.9.2007 passed by learned Special Judge, Una in Sessions Trial No. 10 of 2005 in case titled State of H.P. vs. Krishan Gopal arising out of FIR No. 735 of 2003 dated 19.11.2003 registered at P.S. Una under Section 20 of NDPS Act, whereby he has been convicted for conscious possession of 130 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 13/12/2019 20:29:51 :::HCHP 2 grams charas and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.10,000/-.
2 Prosecution case, in brief, is that PW1 Rajinder Singh .
was deputed by ASI Harbans Lal from CIA Staff Una for detecting and gathering information about offences related to excise etc. in Mehatpur area after entering report No. 4 dated 19.11.2003 Ext.PW12/G in daily diary. When PW1 was present at Mehatpur chowk, he received a secret information that appellant had been indulging in sale of charas at his shop situated at Mehatpur, whereupon he proceeded to Una to inform his superior about this and on the way, PW12 HC Nardev Singh along with other police officials, posted in CIA Staff, met him near Gurudwara at Delhan and he informed about information received by him to PW12 HC Nardev Singh, who, in turn, recorded statement Ext.PW1/A of PW1 under Section 154 Cr.P.C. and sent ruka Ext.PW1/A through PW5 C.Som Nath to the Police Station and he also reduced the information into writing under Section 42(1)(2) of NDPA Act Ext.PW2/A and sent it through PW2 C. Jaswinder Singh to Superintendent of Police, Una.
3 Finding the information to be definite and reliable, Investigating Officer proceeded towards the shop of appellant and there he associated independent witnesses PW3 Umesh Bali and PW4 Narinder Kumar in raiding party and informed the ::: Downloaded on - 13/12/2019 20:29:51 :::HCHP 3 appellant about information received by him and his intention to search the person of appellant as well as his shop. In compliance of Section 50 of NDPS Act, appellant was informed about his right .
to give his search before the Magistrate or Gazetted Officer vide memo Ext.PW1/B, however, appellant gave his consent, for his and his shop, to be searched by police. The said memo was witnessed by independent witnesses as well as PW1 Rajinder Singh. Consent Ext.PW1/C was also reduced into writing on the memo itself and witnessed by aforesaid witnesses.
4 Before searching the person and shop of appellant, police officials along with witnesses had given their personal search to appellant vide memo Ext.PW1/D which was also witnessed by aforesaid witnesses and thereafter, during personal search of appellant, black sticks were recovered from his right pocket of pant, wrapped in polythene, which, on smelling, were found to be charas. On weighing, it was found 130 grams. Two samples of five grams each were extracted therefrom and thereafter 120 grams charas was seized in same polythene and two samples were seized in two different pieces of cloths and all these parcels were sealed with seal 'A' and sample seal was also taken on separate piece of cloth Ext.PW12/B and NCB form and parcels were taken in possession vide memo Ext.PW1/E, which was also witnessed by aforesaid witnesses.
::: Downloaded on - 13/12/2019 20:29:51 :::HCHP 45 It is further case of prosecution that for recovery of charas from appellant, he was arrested and memo of arrest Ext.PW1/G was prepared and information of his arrest was given .
to his wife Sudha and in this regard endorsement Ext.PW1/H was made on Ext.PW1/G and it was also witnessed by witnesses, referred supra. At the time of arrest, personal search (Jamatalashi) of appellant was also conducted and memo Ext.PW1/F was prepared.
6 NCB Form in triplicate was filled-in on spot by PW12 HC Nardev Singh and site map Ext.PW12/C was also prepared.
Statements of witnesses were also recorded. On the basis of ruka sent to Police Station, FIR Ext.PW8/A was registered by PW8 SI Sher Singh and after making endorsement Ext.PW8/B on ruka, case file was sent back on spot through PW5 C.Som Nath.
7 PW2 C. Jaswinder had handed over information under Section 41(1)(2) of NDPS Act to SP Una, who after perusal, handed over it to his Reader PW6 Inspector Pritam Chand on the same day, who has proved it after comparing with Ext.PW2/A carbon copy of same.
8 During investigation, a special report under Section 57 of NDPS Act was also prepared by PW12 and was sent to Additional SP, Una, which has been proved by PW7 Bachitter Singh, who at the relevant point of time was Reader to Additional ::: Downloaded on - 13/12/2019 20:29:51 :::HCHP 5 SP Una. The special report, after perusal, was handed over by Additional SP Una to PW7 Bachitter Singh who has proved the original report after comparing it with carbon copy of same.
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9 On arriving at the Police Station, case property was handed over to PW8 SI Sher Singh by PW12 Nardev Singh, who, in turn, resealed the parcels with seal 'B' and filled up the relevant columns of NCB form in triplicate and took the sample seal on separate piece of cloth Ext.PW8/D. 10 After resealing, the case property along with documents was handed over by PW8 Sher Singh to PW9 Ved Parkash, who was MHC of Police Station at that time, who had sent one sample parcel for chemical analysis to CTL Kandaghat through PW10 C. Rajinder Kumar vide RC No. 243 of 2003.
11 After handing over the sample in CTL Kandaghat, PW10 Rajinder Kumar had handed over the RC to PW9 MHC Ved Parkash. PW11 HC Jagtar Singh, on transfer of HC Nardev Singh, had further investigated the case and recorded statements of police officials and thereafter handed over the case file to SHO Una, who, after receiving the report of Chemical Examiner Ext.PW12/F, had prepared the challan and presented it in Court.
12 On conclusion of trial, appellant has been convicted by the trial Court, as detailed supra.
::: Downloaded on - 13/12/2019 20:29:51 :::HCHP 613 Prosecution, to prove its case, has examined 12 witnesses, whereas after recording statement under Section 313 Cr.P.C. the appellant has not chosen to lead any evidence in .
defence.
14 PW3 Umesh Bali and PW4 Narender Kumar are independent witnesses, who for resiling their earlier statements recorded under Section 161 Cr.PC., were declared hostile.
Testimony of a hostile witness is not be brushed aside in toto but reliable part thereof, finding corroboration with other admissible and convincing evidence on record, can be taken into consideration for benefit of either party. Similarly, there is no presumption that version of official witness is always to be doubted or suspected to be interested version. Unless there is sufficient material available on record, testimony of official witnesses cannot be discarded only for the reason that the witnesses are official witnesses.
15 PW12 HC Nardev Singh (IO), PW1 HHC Rajinder Singh (complainant), PW3 Umesh Bali and PW4 Narender Kumar are those spot witnesses who remained on spot throughout the proceedings. PW1 HC Rajinder Singh in his deposition has narrated the entire prosecution story since his presence at Mehatpur when he received the secret information till production of accused and contraband before SHO PW8 SI Sher Singh. In ::: Downloaded on - 13/12/2019 20:29:51 :::HCHP 7 cross examination, nothing has been elucidated so as to impeach his veracity. Like PW1 HC Rajinder Singh, PW12 HC Nardev Singh has also corroborated the prosecution story and withstood in his .
cross examination maintaining the sanctity of prosecution story.
16 Independent witnesses, PW3 Umesh Bali and PW4 Narender Kumar, though, have been declared hostile, however, in their cross examination by learned Public Prosecutor, they have admitted not only their presence on spot, but also presence of accused and police party on spot headed by PW12 HC Nardev Singh. Though they have stated that nothing was recovered in their presence, but they have admitted their signatures on memos prepared by police with respect to search and seizure process and also packets Ext.P1 and Ext.P2 which are parcels containing the contraband and sample thereof. They have also stated that police had not pressurized them to sign the papers and they had signed the same voluntarily.
17 PW3 Umesh Bali has admitted that he knew the accused personally being his neighbour and they have good relations with each other and he also knew PW4 Narender Singh who is also a shopkeeper at Mehatpur. He has admitted that on 19.11.2003 police had come to shop of accused and had searched the shop as well as person of accused. He has categorically stated that police had not pressurized him to sign ::: Downloaded on - 13/12/2019 20:29:51 :::HCHP 8 but he had put his signatures voluntarily. He has also stated that the papers whereupon he put his signatures were already written.
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18 PW4 has stated that he was knowing the police personal present on the spot and he had put signatures on 4-5 papers and piece of cloth and he has also identified his signatures on these papers i.e. memo and also piece of cloth whereupon sample of seal was taken. Firstly, he has stated that papers were blank, but in the next line, he has stated that papers were half written when he had signed the same. Firstly he has stated that police had pressurized him to put signatures on the papers, but he had not made any complaint to superior officer regarding this pressure but in the next line, he has again stated that he had reached at the shop of PW3 Umesh Bali incidentally and police did not pressurize him and he had put his signatures voluntarily. He has also admitted that he knew the accused personally, who was neither his friend nor foe.
19 From evaluation of statements of two independent witnesses, it can be inferred that both of them were present on spot. They have testified the presence of police party on spot and search of accused as well as person of accused undertaken by said police party and preparation of memos on spot, seizure of contraband and taking of sample seals on piece of cloth.
::: Downloaded on - 13/12/2019 20:29:51 :::HCHP 920 PW1 Rajinder Singh and PW12 HC Nardev Singh have corroborated the prosecution story and their testimonies have not been impeached in cross examination, rather case of .
prosecution has been fortified with corroboration thereof in statements of independent witnesses PW3 Umesh Bali and PW4 Narender Kumar. Therefore, prosecution has been able to prove beyond reasonable doubt that on 19.11.2003 appellant was found in possession of black sticks in his pocket wherefrom two samples of 5 grams each were taken and contraband and samples were taken in possession in three sealed parcels which were sealed with seal impression 'A' and memos on this regard were prepared on spot.
21 PW2 C.Jaswinder Singh and PW5 C.Som Nath have proved the preparation and delivery of secret information Ext.PW2/A and ruka Ext.PW1/A to S.P. Una and SHO, P.S. Una respectively and their return on spot after doing so. In their cross examination also, there is noting to doubt their depositions.
22 PW6 Inspector Pritam Singh certified receipt of information under Section 41(1) (2) of NDPS Act by SP Una on 19.11.2003 and PW7 Bachitter Singh has proved receipt of special report under Section 51 of NDPS Act on 20.11.2003 by Additional SP, Una. Despite granting opportunity, these witnesses have not been cross examined.
::: Downloaded on - 13/12/2019 20:29:51 :::HCHP 1023 PW8 SI Sher Singh has proved registration of FIR, re-
sealing of contraband, taking of sample of re-seal, filling of relevant columns of NCB Form and deposit of case property with .
MHC PW9 Ved Parkash. There is no question in his cross examination with respect to his examination-in-chief except that sample seal was not handed over to him by I.O.
24 PW9 Ved Parkash has proved depositing of case property with him by PW8 Sher Singh and sending of sample of recovered contraband to CTL Kandaghat through PW10 Rajinder Kumar vide RC No. 243 of 2003. In his cross examination, only suggestion given to him is that case property was not deposited with him. Sending of sample to CTL Kandaghat through C.Rajinder Kumar vide RC No. 243 of 2003 has not been questioned. PW10 HHC Rajinder Kumar has reiterated the version of PW9 Ved Parkash and even in his cross examination, this fact has not been disputed and only question put to him is that no sample seal was sent along with sample parcel which has been denied by him.
25 PW11 HC Jagtar Singh has partially investigated the case and after transfer of PW12 Nardev, he has recorded statement of HC Bachitter Singh, MHC Ved Parkash, SI Pritam Singh and C.Rajinder Skingh. His part of investigation has not ::: Downloaded on - 13/12/2019 20:29:51 :::HCHP 11 been questioned in his cross examination as despite granting opportunity, no question has been put to him.
26 Though, it has been suggested to PW8 SI Sher Singh .
that I.O. had not handed over sample seal to him, which has been admitted by him, but the said fact has no impact on prosecution story for the reason that neither seals put on parcels, their samples of seal and sending of sealed parcels to CTL Kandaghat has been questioned nor tampering of seals has been alleged anywhere in cross examination or in statement under Section 313 Cr.P.C.
27It is pointed out by learned counsel for the appellant that RC vide which sample parcels were sent for chemical examination has not been produced in Court. Sending of sample vide RC No. 243 of 2003 stated in examination-in-chief of PW9 Ved Parkash has not been disputed in cross examination or in cross examination of PW10 HHC Rajinder Kumar, who had taken the sample to Laboratory and therefore, assertion of prosecution on this count stands admitted impliedly and thus non-production of Road Certificate cannot be treated a missing link.
28 Learned counsel for the appellant has also canvassed that in present case entire bulk of contraband was not sent for chemical examination and only sample of 5 grams was examined in Laboratory and weight of contraband received in Laboratory as ::: Downloaded on - 13/12/2019 20:29:51 :::HCHP 12 mentioned by Chemical Examiner in his report Ext.PW12/F was 4.4462 grams. According to him, at the best, prosecution has succeeded to prove recovery of 4.4462 grams charas from the .
appellant and therefore, the appellant can only be held liable for carrying that much quantity of charas in his conscious possession.
29 To substantiate his plea, learned counsel for appellant has relied upon pronouncement of the Apex Court in Gaunter Edwin Kircher vs. State of Goa reported in AIR 1993 SC 1456 and also judgments of this High Court in cases Samantha Black vs. State of HP reported in 2010(1) Shim.L.C.416 and Khekh Ram, Nilmani vs. Narcotics Central Bureau and another reported in 2018(1) Shim.L.C.219.
30 Referring judgment of the Apex Court in State of Rajasthan vs. Sahi Ram, Cr. Appeal No. 1497 of 2019 decided on 27.9.2019, learned Deputy Advocate General has countered the aforesaid plea of learned counsel for the appellant and has urged that appellant is liable for sentence for having conscious possession of 130 grams of charas, the entire mass recovered from him.
31 In Gaunter Edwin Kircher's case (supra) there were two pieces of charas recovered from accused which were ::: Downloaded on - 13/12/2019 20:29:51 :::HCHP 13 weighing 7 grams and 5 grams respectively and only one piece weighing 5 grams was sent for chemical analysis, which was found less than 5 grams and therefore, the Apex Court had .
observed that from the report of Chemical Analysis, it cannot be presumed and inferred that other piece of charas weighing 7 grams which was not sent for analysis also contained charas and for failure to send the other piece for chemical analysis, it was held that prosecution was able to prove only that 4.570 grams charas was recovered from accused and it was observed by the Apex Court that entire quantity of seized contraband should be sent for chemical analysis so as to avoid any dispute regarding the quantity seized and in case, if it is not practicable in a given case to send the entire quantity then sufficient quantity by way of samples from each of packets or pieces recovered should be sent for chemical examination in regular panchnama in accordance with law.
32 Relying upon the aforesaid verdict of Apex Court, in Samantha Black's case and Khekh Ram Nilmani's case supra, this High Court had considered that prosecution was able to prove beyond reasonable doubt that accused was found in possession that much of charas which was sent for chemical analysis.
::: Downloaded on - 13/12/2019 20:29:51 :::HCHP 1433 The recent pronouncement of Apex Court in Sahi Ram's case relied upon by learned Deputy Advocate General, is not applicable in presence case as in that case there is evidence .
on record that 223 Kgm poppyhusk was recovered from accused in seven bags and sample weighing about 500 grams were taken out from each bag and those samples were mixed with each other and out of these 3500 grams, thus, two samples of 500 grams were independently taken out and sealed while rest 2500 grams were also sealed in separate pouch. Therefore, in that case, there is an unambiguous evidence proving on record categorically that samples were drawn by taking husk from each bag in equal quantity and thereafter from that mixture two samples of 500 grams were independently sealed which makes the sample sent for chemical analysis as representative samples of entire bulk but no such exercise has neither been taken in present case nor claimed to have been undertaken.
34 In present case, memo of seizure wherein extraction of two samples of 5 grams each has been stated is completely silent about the manner in which those samples were taken.
Similarly neither PW1 Rajinder nor PW12 HC Nardev Singh have thrown light regarding the manner in which those samples were drawn. The evidence is also lacking with respect to number of sticks found in pocket of appellant and further as to whether ::: Downloaded on - 13/12/2019 20:29:51 :::HCHP 15 samples were drawn from one stick or two different sticks or samples of 5 grams each were taken from all sticks. In absence of any positive evidence, keeping in view the nature of contents .
of seizure memo and depositions of witnesses, it appears that samples were not drawn from all sticks recovered from appellant and these samples were taken from one stick. Applying the principle propounded by the Apex Court in Gaunter's case followed by this High Court in Samantha and Khekh Ram's cases, in present case also, prosecution can be stated to have proved beyond reasonable doubt that appellant was found in conscious possession of 4.4464 grams of charas.
35 The Apex Court in Gaunter Edwin's case, as referred supra, has approved practice of sending representative sample and therefore, principle applied in Sahi Ram's case is not contrary to principle propounded by the Apex Court in its earlier judgment in Gaunter Edwin's case, but in present case, for want of positive action as well as assertion on the part of prosecution in evidence, prosecution has failed to prove that entire material recovered from appellant was that of charas.
36 Section 20 of NDPS Act provides punishment for contravention in relation to cannabis plant and cannabis. Section 20(b)(ii)(A) provides punishment, for offences wherein small quantity of contraband is involved, extendable upto one year ::: Downloaded on - 13/12/2019 20:29:51 :::HCHP 16 or/with fine which may be extended to Rs.10,000/- and Section 20 (b)(ii)(B) provides sentence, for recovery of contraband of quantity lesser than commercial but greater than small quantity, .
of rigorous imprisonment for a term which may be extended to ten years and with fine which may extend to one lac rupees, whereas Section 20(b)(ii)(C) provides punishment, for recovery of contraband of commercial quantity, of sentence not less than ten years but extendable upto 20 years and with fine not less than Rs.1 lac extendable upto Rs. 2 Lac.
37 As discussed above, prosecution has been able to prove that appellant was found in conscious possession of less than 5 grams of charas, which is a small quantity. Therefore, he is liable to be convicted under Section 20(b)(ii)(A). Small quantity of charas is upto 100 grams for which maximum imprisonment of one year and/or fine extendable upto Rs.10,000/- has been provided. For 100 grams, maximum sentence is one year i.e. 365 days and proportionate sentence for carrying 5 grams charas would be about 18-19 days. But period of proportionate sentence, in such cases cannot be determined purely applying mathematical formula but impact of the offence committed i.e. supplying drugs is also to be taken into consideration.
38 Petitioner was arrested on 19th November, 2003 and was enlarged on bail on 8th December, 2003. Accordingly, he ::: Downloaded on - 13/12/2019 20:29:51 :::HCHP 17 remained in custody for 19-20 days. He has also been sentenced to pay fine of Rs.10,000/-. The contraband was recovered from appellant in the year 2003 and thereafter 16 years have passed.
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At that time, he was 41 years old and now he is 57 years old.
Fine amount imposed upon him has also been deposited by him and he has suffered trauma of conviction for more than 12 years.
Considering entire facts and circumstances and balancing the individual and societal interest, it would be appropriate to modify his sentence of imprisonment from two years to two months with fine of Rs.10,000/- as already imposed by trial Court. He shall be entitled for benefit of Section 428 of Cr.P.C. The case property shall be dealt with in accordance with directions already passed by trial Court. He is also directed to surrender before trial Court to serve the sentence on or before 31st January, 2020. Record be sent back along with copy of judgment to trail Court for compliance.
39 Appeal on merit is dismissed in aforesaid terms.
December 10,2019 (Vivek SinghThakur),
ms Judge
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