Himachal Pradesh High Court
Judicial Custody In Model Central vs State Of Goa on 27 June, 2022
Bench: Sabina, Satyen Vaidya
Reportable/Non-reportable
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE DAY OF 27th JUNE, 2022
.
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL APPEAL Nos. 324 of 2020
Between:-
PAWAN KUMAR @ LUCKY SHARMA,
SON OF SHRI MAHINDER PAL,
RESIDEN OF RAM NAGAR BATALA,
TEHSIL & DISTRICT GURDASUR,
PUNJAB, PRESENTLY CONFINED IN
JUDICIAL CUSTODY IN MODEL CENTRAL
JAIL NAHAN, DISTRICT SIRMOUR, H.P.
AGE 40 YEARS.
....APPELLANT
(BY SH. BIMAL GUPTA, SR. ADVOCATE WITH MS.
SALOCHNA KAUNDAL, ADVOCATE)
AND
NARCOTICS CONTROL BUREAU,
SUB ZONE MANDI, H. NO. 307/12
RAM NAGAR MANDI, H.P. THROUGH
ITS INTELLIGENCE OFFICER
KARAMVIR SINGH.
.... RESPONDENT
(SH. ASHWANI PATHAK, SR. ADVOCATE WITH SH.
DEV RAJ ADVOCATE)
---------------------------------------------------------------------------------------
This appeal coming on for hearing this day, Hon'ble
Mr. Justice Satyen Vaidya, delivered the following:
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-2-
JUDGMENT
By way of instant appeal, judgment dated .
26.11.2014 passed by learned Special Judge-II, Mandi, District Mandi, H.P. in Sessions Trial No. 9 of 2013 along with sentence order dated 16.12.2014 have been assailed by the appellant, whereby he has been convicted for offence under Sections 20 of the NDPS Act and has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lakh and in default to undergo simple imprisonment for a period of one year.
2. The brief facts of the case are that Narcotics Control Bureau, Sub Zone Mandi (for short NCB) registered Crime No. 35 of 2012 dated 19.12.2012. As per NCB case, on 19.12.2012, PW-5 Karamvir Singh, Intelligence Officer received secret information regarding commission of offence under the NDPS Act. A raiding party was constituted. PW-2 R. L. Negi, Intelligence Officer besides other officials of NCB and independent witnesses Narain Singh and Jia Lal were associated. A Naka was laid at Katindi Road Mandi at about 6.45 a.m. Two persons including the appellant were found coming from Katindi side at about 7.20 a.m. 1 kg 300 grams of charas was recovered from the bag carried by the appellant.
Recovered contraband was seized vide recovery-cum-seizure ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -3- memo Ext. PW-2/A. Panchnama Ext. PW2/B was also prepared. Appellant along with his co-accused named Raj .
Kumar were arrested. Two samples weighing 25 grams each were drawn and were sent for chemical analysis to Central Revenue Control Laboratory, Delhi. One of the sample was tested as positive for charas vide report Ext. PW1/A.
3. On completion of investigation, challan was prepared. Appellant along with his co-accused were tried in Sessions Trial No. 9 of 2013 and were convicted. Appellant was sentenced as noticed above. Co-accused Raj Kumar is stated to have died.
4. We have heard learned counsel for the parties and have also gone through the record carefully.
5. Prosecution examined PW-2 R.L. Negi, Intelligence Officer and PW-5 Karamvir Singh, Intelligence Officer as spot witnesses. In addition, Jia Lal the alleged independent witness was also examined as PW-3.
6. PW-1 Sh. V. K. Sharma, Chemical Examiner proved report Ext. PW1/A. Sh. S. K. Singh, Deputy Superintendent of CBI was examined as PW-6, who deposed to have received information under Section 42 of the NDPS Act.
7. Sh. Bimal Gupta, learned senior counsel representing the appellant at the very outset contended that the ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -4- samples sent for chemical analysis were not the representative samples. In absence of sample being representative, the entire .
quantity allegedly recovered by NCB could not be said to be charas.
8. Recovery-cum-seizure memo Ext. PW2/A reveals that the recovered 1 kg 300 grams charas was found in "indigenous finger shape".
9. PW-2 stated on oath that during search, one polythene bag was recovered, which was containing finger shape dark brown substance. The substance was weighed and found 1 kg 300 grams. Two samples of 25 grams each were separated from the recovered charas. In cross-examination, this witness stated that the sample was taken randomly.
10. PW-5 also deposed almost in same terms.
According to him, during search one polythene bag was recovered which contained finger shaped brown substance, packed in a transparent polythene cover. The recovered substance was weighed. Two samples of 25 grams each were separated from the recovered charas and were separately sealed. In cross-examination, PW-5 stated that he had not counted the sticks of contraband.
11. PW-3, the alleged independent witness did not support the case of prosecution and was declared hostile.
::: Downloaded on - 27/06/2022 20:03:26 :::CIS -5-According to this witness, no proceedings were held in his presence and he was called to the NCB Office where his .
signatures were obtained on papers. Nothing material could be elicited from his cross-examination.
12. The material on record thus suggested that the substance recovered from the appellant was in the shape of fingers/small sticks. Neither PW-3 nor PW-5, have clarified as to what was the number of sticks having finger shape. The answer given by PW-5 in cross-examination that he had not counted the sticks of contraband definitely goes to suggest that the sticks were more than one in number. No explanation has been rendered either by PW-2 or PW-5 regarding non supply of the details of the number of plural masses in which contraband was found. Even document Ext. PW2/A mentions the substance as indigenous finger shaped. It is not the prosecution case that the entire substance was a single mass.
Reference can be made to contents of Panchnama Ext. PW2/B, in which it was mentioned that the sample was drawn from the different parts of the substance.
13. Interestingly, neither PW-2 nor PW-5 have detailed as to how the samples were drawn. None of these witnesses have stated that the entire bulk was made homogeneous and thereafter the samples were drawn as representative samples.
::: Downloaded on - 27/06/2022 20:03:26 :::CIS -6-PW-2 and PW-5 have not even endorsed the mode and manner stated in Panchnama Ext. PW2/B for drawl of samples.
.
Nothing has been found in the evidence led by the prosecution that the substance was not a single mass. On the contrary, the material on record suggested the substance to be having plurality of masses.
14. In the instant case, the entire bulk has been branded as charas on the basis of report Ext. PW1/A, issued by Central Revenue Control Laboratory, Delhi. The scrutiny of such report further reveals that the laboratory examined only one sample of 25 gram. To hold the sample to be representative of entire bulk, it had to be proved by prosecution that the sample examined, in fact, was the true representative sample of entire bulk. This evidence, in our considered view, is clearly missing in the case in hand.
15. NDPS Act was amended in the year 1989 and Section 52A was incorporated, which read as under:
"52A. Disposal of seized narcotic drugs and psychotropic substances.
(1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -7- narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after .
their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified.
(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 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 ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -8-
(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.
(3) Where an application is made under sub-
section (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."
16. Evidently, the aforesaid provision was incorporated for safe custody and disposal of narcotic and psychotropic substances, so as to avoid their misuse. In the case in hand, the Investigating Officer had not chosen to comply with Section 52A of the Act, rather he had chosen to draw the samples on spot. The aforesaid provision was amended in 2014, nevertheless the contemporaneous provision contained in ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -9- Section 52A on 8.5.2008 i.e. at the time of commission of offence, substantially carried the same mandate as amended .
17. The Central Government in exercise of powers vested under sub-section (i) of Section 52 (A) of the Act, has issued standing order No.1 of 1989, prescribing the procedure to be followed while conducting seizure of the contraband. This standing order succeeds the provision of standing order No. 1 of 1988. Section 2 of the standing order No.1 of 1989 provides for general procedure of sampling and storage etc. as under: -
STANDING ORDER No. 1/89 SECTION II -
GENERAL PROCEDURE FOR SAMPLING,
STORAGE, ETC.
2.1. All drugs shall be properly classified, carefully weighed and sampled on the spot of seizure.
2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot.
2.3. The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -10- packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn.
.
2.4. In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container.
2.5. However, when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (i n duplicate) may be drawn.
2.6. Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain and, in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.
2.7. If such remainder is 5 or more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such remainder package/container.
2.8. While drawing one sample (in duplicate ) from a particular lot , it must be ensured that representative samples in equal quantity are taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.
2.9. The sample in duplicate should be kept in heat- sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -11- envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the No. of the package(s)/container(s) from which the sample has .
been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked "Secret - Drug sample/Test memo", to be sent to the chemical laboratory concerned.
3. The seizing officers of the Central Government Departments, viz., Customs, Central Excise, Central Bureau of Narcotics, Narcotic s Control Bureau, Directorate of Revenue Intelligence, etc. should despatch samples of the seized drugs to one of the laboratories of the Central Revenues Control Laboratory nearest to their offices depending upon the availability of test facilities . The other central agencies like BSF, CBI and other central police organizations may send such samples to the Director, Central Forensic Laboratory, New Delhi. All State enforcement agencies may send samples of seized drugs to the Director/Deputy Director/ Assistant Director of their respective State Forensic Science Laboratory.
3.1. After sampling, a detailed inventory of such packages/containers shall be prepared for enclosure with the Panchama. Original wrappers shall also be preserved for evidentiary purposes.
18. The sanctity of the Standing Order 1/89 came for consideration before the Supreme Court in Noor Aga v. State of Punjab (2008) 16 SCC 417, wherein it was held as under:-
"89. Guidelines issued should not only be substantially complied, but also in a case involving penal proceedings, vis-a-vis a departmental proceeding, rigours of such guidelines may be ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -12- insisted upon. Another important factor which must be borne in mind is as to whether such directions have been issued in terms of the provisions of the .
statute or not. When directions are issued by an authority having the legal sanction granted therefor, it becomes obligatory on the part of the subordinate authorities to comply therewith.
90. Recently, this Court in State of Kerala & Ors.
v. Kurian Abraham (P) Ltd. & Anr. [(2008) 3 SCC 582], following the earlier decision of this Court in Union of India v. Azadi Bachao Andolan [(2004) 10 SCC 1] held that statutory instructions are mandatory in nature.
"91. Logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance of these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution."
19. If one goes through the Standing Order 1/89 and Section 52A (2) (c) of the NDPS Act, an apparent conflict arises as the former provides for sampling at the spot of seizure and sending the same to laboratory within 72 hours whereas the ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -13- latter provides for sampling before a Magistrate. The said conflict has been dealt with by the Hon'ble Supreme Court .
elaborately in Union of India (UOI) v. Mohanlal and Ors.
(2016) 3 SCC 379. The relevant paragraphs of the said Judgment of the Hon'ble Apex Court are reproduced hereunder:
"Seizure and sampling
12. Section 52-A(1) of the NDPS Act, 1985 empowers the Central Government to prescribe by a notification the procedure to be followed for seizure, storage and disposal of drugs and psychotropic substances. The Central Government has in exercise of that power issued Standing Order No. 1 of 1989 which prescribes the procedure to be followed while conducting seizure of the contraband. Two subsequent standing orders one dated 10-5-2007 and the other dated 16-1-2015 deal with disposal and destruction of seized contraband and do not alter or add to the earlier standing order that prescribes the procedure for conducting seizures. Para 2.2 of Standing Order No. 1 of 1989 states that samples must be taken from the seized contraband on the spot at the time of recovery itself. It reads:
"2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -14- (panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the .
spot."
13. Most of the States, however, claim that no samples are drawn at the time of seizure. Directorate of Revenue Intelligence is by far the only agency which claims that samples are drawn at the time of seizure, while Narcotics Control Bureau asserts that it does not do so. There is thus no uniform practice or procedure being followed by the states or the central agencies in the matter of drawing sample. This is, therefore, an area that needs to be suitably addressed in the light of statutory provisions which ought to be strictly observed given the seriousness of the offences under the Act and the punishment prescribed by law in case the same are proved. We propose to deal with the issue no matter briefly in an attempt to remove the confusion that prevails regards drawing of sample.
14. Section 52-A as amended by Act 16 of 2014, deals with disposal of seized drugs and psychotropic substances. It reads:
"52-A.Disposal of seized narcotic drugs and psychotropic substances.--(1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -15- relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or .
class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drug or psychotropic substance 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 narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances 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 narcotic drugs or psychotropic substances 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 ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -16-
(b) taking, in the presence of such Magistrate, photographs of such drugs or substances 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.
(3) When an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."
15. It is manifest from Section 52-A(2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of
(a) certifying the correctness of the inventory, ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -17-
(b) certifying photographs of such drugs or substances taken before the Magistrate as true, and .
(c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.
18. Be that as it may, a conflict between the statutory provision governing taking of samples and the Standing Order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government, therefore, will do ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -18- well to re-examine the matter and take suitable steps in above direction."
.
20. There is nothing in the prosecution evidence that any of these procedures were followed while drawing samples.
There is not even any semblance of any procedure having been adopted for drawing a representative sample. This creates a serious doubt on the very legitimacy of the case of prosecution.
To have credence, the sample had to be representative sample, of entire 1 Kg 300 Grams of substance, failing which it can be a case of recovery of only 25 gms. of charas or at the most 50 grams by including weight of second sample, having entirely different legal consequences.
21. 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 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 ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -19- 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 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 ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -20- 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 under a regular panchnama and as per the provisions of law.
22. We consider it appropriate to reproduce hereunder the observations and conclusions rendered by different Division ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -21- Benches of this Court while dealing with identical or akin proposition from time to time.
.
23. 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 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 ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -22- 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.
24. 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 (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 ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -23- 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.
25. 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:
"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 ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -24- 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."
26. 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 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 ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -25- 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."
27. Thus, from the entirety of evidence available on record, we are not convinced that the sample of 25 grams examined at Central Revenue Control Laboratory, Delhi was representative of entire bulk of substance and hence the appellant cannot be held to have been found in conscious possession of 1 kg 300 grams. The appellant can be held to in possession of 25 grams or at the most 50 grams of Charas by including the weight of other sample, which as per NDPS Act is small quantity.
28. Prior to amendment Act 16 of 2014, the punishment involving small quantity of charas under Section 20(b)(ii) (A) was rigorous imprisonment for terms extending up to six months or extending up to Rs. 10,000/- or with both.
29. Appellant is held guilty of offence under Section 20(b)(ii)(A) for having been found in conscious possession of only small quantity of charas and is sentenced to undergo rigorous imprisonment for six months. The judgment and ::: Downloaded on - 27/06/2022 20:03:26 :::CIS -26- sentence order passed by learned trial court is accordingly modified.
.
30. Appellant was arrested on 19.12.2012. He remained undertrial and since his conviction has been undergoing the sentence imposed against him. 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)
27th June, 2022 Judge
(kck)
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