Himachal Pradesh High Court
And District Chamba vs Ncb on 23 September, 2022
Author: Sushil Kukreja
Bench: Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 23rd DAY OF SEPTEMBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE SUSHIL KUKREJA
CRIMINAL APPEAL No.17 of 2009
Between:-
SHRI BUDHIA RAM SON OF SHRI
HARI SINGH, RESIDENT OF
VILLAGE AND POST OFFICE
GANTH, PARGNA JASOURGARH,
TEHSIL CHURAH, POLICE STATION
AND DISTRICT CHAMBA, H.P.
.... APPELLANT
(BY MR. N.K. THAKUR, SENIOR
ADVOCATE WITH MR. DIVYA RAJ
SINGH, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MR. KUNAL THAKUR,
DEPUTY ADVOCATE GENERAL)
Reserved on : 15th September, 2022.
Decided on : 23rd September, 2022.
This appeal coming on for pronouncement of judgment
this day, Hon'ble Mr. Justice Sushil Kukreja, delivered the following:
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2
JUDGMENT
Instant criminal appeal filed under Section 374 of Cr.PC, .
lays challenge to judgment of conviction and order of sentence dated 19.01.2009/20.01.2009, passed by the Additional Sessions Judge, Fast Track Court, Chamba, whereby learned trial court while holding the appellant/accused (hereinafter referred to as 'accused') guilty of having committed offence punishable under Section 20(B) of the Narcotic Drugs and Psychotropic Substances, Act (for short 'Act'), sentenced him to undergo rigorous imprisonment for two and half years and to pay fine of Rs.30,000/- (rupees thirty thousand only) and in case of default of payment of fine, to further undergo rigorous imprisonment for six months.
2. Prosecution story, in brief, is that on 04.04.2008, at about 6.30. A.M., police party headed by Inspector/SHO Narinder Kumar was present at Majra Morh Folgat near Kiyani and had laid Naka and in the meantime, two persons came there on Motorcycle bearing registration No.CH03E-5177 and when they were stopped by police, they disclosed their names as Virender Kumar and Rajesh Kumar. At that time, one person was coming on foot from Keyani towards Chamba and on seeing the police party, he turned his back and tried to run away. On suspicion, the police party apprehended him in the presence of independent witnesses Virender and Rajesh. He was given option by ::: Downloaded on - 26/09/2022 20:02:22 :::CIS 3 Investigating Officer to be searched before a Magistrate or a gazetted officer, but he had given his consent to be searched by the police party.
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In this regard consent memo was prepared. After that, his personal search was conducted in the presence of aforesaid independent witnesses Rajesh Kumar and Virender Kumar. On his personal search, a polythene packet was recovered, which was concealed by him inside his sweater and word "Welcome" was written on the aforesaid polythene. On checking the same, three transparent packets containing charas in the shape of balls and sticks were found. On weighment, it was found to be 2KGs. Out of the recovered charas, two samples of 25 grams each were drawn, which were put in two empty four square cigarette packets and then were parceled and sealed with seal impression "A". The remaining charas was also sealed into three separate parcels and sealed with seal impression 'A' each. Sample seal 'A' was also separately taken and seal after use was handed over to HC Dev Raj. NCB form was filled in triplicate on the spot. Ruqua was prepared and sent to the Police station, on the basis of which, FIR No. 80/08, dated 4.4.2008, was registered against the accused at Police Station Sadar Chamba under Section 20 of Narcotic Drugs & Psychotropic Substances Act. After completion of investigation and necessary codal formalities, police presented the challan in the competent court of law, who after having found prima facie case under ::: Downloaded on - 26/09/2022 20:02:22 :::CIS 4 Section 20 of the NDPS Act, framed charge against the accused under aforesaid Section, to which, he pleaded not guilty and claimed trial.
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3. Prosecution with a view to prove its case, examined as many as eight witnesses, whereas, despite opportunity, accused failed to lead any defence evidence. However, in his statement recorded under Section 313 Cr.P.C, he denied the case of the prosecution in toto and claimed himself to be innocent.
4. Learned counsel for the appellant/accused contended that the findings recorded by learned trial court are not based upon the proper appreciation of evidence as out of recovered contraband, sample weighing only 28.943 grams was sent to Forensic Science Laboratory 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 appellant/accused.
5. On the other hand, Mr. Kunal Thakur, learned Deputy Advocate General while supporting the judgment passed by learned trial court, stated that the findings recorded by the trial court are based upon proper appreciation of evidence led on record by the respective parties and do not require any interference.
6. I have heard the learned counsel for the parties and also gone through the record minutely.
::: Downloaded on - 26/09/2022 20:02:22 :::CIS 57. To prove the recovery of the charas from the possession of .
the accused, the prosecution had examined PW-1 HC Dev Raj, PW-2 Des Raj and PW-7 Narinder Kumar, who stated with one voice that on 04.04.2008, at about 4 P.M. they proceeded to concerned area for patrolling duty and when they laid Naka at Majra Morh, at about 6.30 A.M., they saw two persons namely Virender and Rajesh came there on a Motorcycle bearing registration No.CH-03E-5177 from Chamba side and in the meantime, a person, i.e. present accused, came from Kiyani side and who on seeing the police, turned his back and tried to run away. On suspicion, the police party apprehended him in the presence of aforesaid independent witnesses Virender and Rajesh.
He was given option by Investigating Officer to be searched before a Magistrate or a gazetted officer, but he had given his consent to be searched by the police party. Thereafter his personal search was conducted and on his personal search, a polythene envelope was recovered from him, which was kept concealed under his sweater and the word 'welcome' was printed on the same. The said polythene was containing three more envelopes with hard substance and on smelling, it was found to be charas and on weighment, it was found to be 2 KGs.
Thereafter two samples of 25 grams each were drawn, which were put in two separate empty four square packets and parceled and sealed ::: Downloaded on - 26/09/2022 20:02:22 :::CIS 6 with seal 'A'. The remaining charas was also parceled and sealed with same seal 'A'. NCB form was also filled on the spot. Ruqua was .
prepared and sent to police station, on the basis of which, FIR was registered against the accused.
8. Now from the perusal of the entire evidence led on record, it has become clear that 2 Kgs of charas in the shape of balls and sticks was recovered from the possession of the accused. Therefore, the entire charas was required to be mixed homogeneously for preparing samples to be sent for chemical examination to FSL. The perusal of the report of the Forensic Science Laboratory Ex PW-7/F shows that one sealed cloth parcel was received there and on weighing the same with the electronic balance, the weight was found to be 28.943 grams. However, there is no evidence on record to suggest as to whether entire charas was mixed homogeneously for preparing sample to be sent for chemical examination to FSL. In fact, Investigating Officer should have made entire contraband homogeneous for the purpose of chemical examination.But there is no evidence on record to establish that representative samples had been drawn out of the entire recovered charas.
9. 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:
::: Downloaded on - 26/09/2022 20:02:22 :::CIS 7"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.
10. In State Vs Naresh Kumar, Criminal Appeal No. 782 of 2008 decided on 28.6.2019, Division Bench of this High Court held that the failure to send the entire mass for chemical analysis would result to draw inference that said contraband has not been analyzed and ::: Downloaded on - 26/09/2022 20:02:22 :::CIS 8 identified by CFSL as the charas. The relevant para of the same reads as under:
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"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 ::: Downloaded on - 26/09/2022 20:02:22 :::CIS 9 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.
11. 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 homogeneous for the purpose of chemical examination."
12. 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:
::: Downloaded on - 26/09/2022 20:02:22 :::CIS 10"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 homogeneously. 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 homogeneously for preparing samples to be sent for chemical examination to SFL."
13. Thus, from the evidence available on record, we are of the opinion that the sample weighing 28.943 grams of charas examined by the Forensic Science Laboratory was not the representative sample of ::: Downloaded on - 26/09/2022 20:02:22 :::CIS 11 the entire bulk and therefore appellant cannot be held to have been found in illegal conscious possession of 2Kgs. of charas and he can be .
held to be in possession of 28.943 grams of charas or at the most 53.943 grams of charas by including the weight of other sample, which, as per the NDPS Act, would fall within the definition of small quantity.
14. Accordingly, appellant is held guilty of offence under Section 20 of the NDPS Act for having been found in conscious possession of only small quantity of charas.
15. Learned Deputy Advocate General stated that the appellant/accused was arrested on 04.04.2008 and remained in judicial custody till 22.07.2008, as he was granted bail on 21.07.2008; and he has already undergone the sentence of more than three months. The appellant/accused is the first offender and a young man with a family to support. Therefore, in such circumstances, I am of the opinion that he should be given an opportunity to mend his ways, so as to bring him in the mainstream of the society, as such, the impugned judgment of conviction and order of sentence passed by learned Additional Sessions Judge, Fast Track Court, Chamba, H.P., is modified to the extent that sentence imposed upon the accused, i.e. two and half years, is reduced to the sentence already undergone.
::: Downloaded on - 26/09/2022 20:02:22 :::CIS 1216. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant Budhia Ram, son of Sh. Hari Singh, is .
directed to furnish a personal bond in the sum of Rs.50,000/- with one surety in the like amount, before the 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 appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.
17. In the above terms, the appeal is disposed of, so also the pending applications, if any.
(Sushil Kukreja) Judge September 23, 2022 (reena) ::: Downloaded on - 26/09/2022 20:02:22 :::CIS