Himachal Pradesh High Court
Rehmat Ali vs Intelligence on 16 November, 2022
Bench: Sabina, Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 16th DAY OF NOVEMBER, 2022
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SUSHIL KUKREJA
CRIMINAL APPEAL NO.126 OF 2020 ALONGWITH CONNECTED MATTER.
Between:-
CR. APPEAL NO. 126 OF 2020
REHMAT ALI, S/O SHRI SHAMAS
DEEN, R/O VILLAGE LALEHTAR,
P.O. KHUSHNAGARI, TEHSIL CHURU,
DISTRICT CHAMBA (H.P.)
.... APPELLANT
(BY MR. LAKSHAY PARIHAR,
ADVOCATE.)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MS. DIVYA SOOD,
DEPUTY ADVOCATE GENERAL)
CR. APPEAL NO. 127 OF 2020
BITTU RAM S/O SH. BALAK RAM
AGED 28 YEARS, R/O VILLAGE
AND POST OFFICE THALI,
TEHSIL CHURAH, DISTRCIT
CHAMBA, H.P.
.... APPELLANT
(BY MR. VISHAL SINGH THAKUR ON
BEHALF OF MR. VIKRANT THAKUR,
ADVOCATE)
AND
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2
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MS. DIVYA SOOD,
DEPUTY ADVOCATE GENERAL)
.
CR. APPEAL NO. 238 OF 2020
BASHIR MOHAMMED S/O SHRI
SUKARDEEN, R/O VILLAGE
CHHETARI, P.O. SIDHOT,
TEHSIL CHURAH, DISTRICT CHAMBA
.... APPELLANT
(BY MR. NARESH THKAUR,
SR. ADV. WITH MR. KARAN VEER
SINGH, ADVOCATE)
AND r
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MS. DIVYA SOOD,
DEPUTY ADVOCATE GENERAL)
CR. APPEAL NO. 241 OF 2020
FAROOQ MOHAMMED S/O SHRI
BIRU, R/O VILLAGE AND
P.O. SIDHOT, TEHSIL CHURAH,
DISTRICT CHAMBA
.... APPELLANT
(BY MS. ANITA ADVOCATE ON
BEHALF OF MS. ANU TULI AZTA,
ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MS. DIVYA SOOD,
DEPUTY ADVOCATE GENERAL)
Reserved on : 10th November, 2022.
Decided on : 16th Novemberl, 2022.
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3
This appeal coming on for pronouncement of judgment this
day, Hon'ble Ms. Justice Sabina, delivered the following:
.
JUDGMENT
Vide this order above mentioned four appeals would be disposed of, as these have arisen from a common judgement/order of conviction and sentence dated 31.12.2019/10.01.2020, passed by the Special Judge, Chamba.
2. Prosecution story, in brief, is that on 24th March, 2018 HC Vipin Singh, alongwith other police officials, were present at Chhana Morh for the purpose of Naka Bandi. The said place was a secluded place. At about 01.30 p.m., a person came from Goli side and he disclosed his name as Jeevan Singh. While HC Varinder Singh was talking to Jeevan Singh, two persons were going from Chauhra side towards Chhana Morh. One of the said persons was carrying a bag in his hand, whereas, the other was empty handed. On seeing the police party, both the persons tried to flee away. On the basis of suspicion, the said persons were apprehended by the police party. The person, who was empty handed, disclosed his name as Bashir Mohammad, whereas, the person who was carrying a carry bag in his right hand disclosed his name as Farooq Mohammad. On checking, the dusky green bag on which "Basmati Cella Rice" had been written, eight polythene packs of onion colour were recovered. When the polythene ::: Downloaded on - 16/11/2022 20:33:39 :::CIS 4 packs were opened, it was found that they contained black coloured hard substance in the shape of 'sticks'. The said substance was found to be charas/cannabis. On weighment, the contraband weighed 3.873 .
kilograms. The recovered contraband was kept in the same carry bag carried by appellant Farooq Mohammad and was made into a cloth sealed parcel with seal bearing impression "CG". NCB form in triplicate was prepared. Case property was taken in possession. Ruqa was sent to the police station through Constable Surinder Kumar for registration of the F.I.R. On the basis of Ruqa, formal F.I.R. 25/18, dated 24.3.2018, was registered at Police Station, Dalhousie, District Chamba, H.P.
3. A.S.I. Kuldeep Singh, reached the spot on receipt of the information with regard to the apprehension of appellants Farooq Mohammad and Bashir Mohammad. Case property was handed over by HC Varinder Singh to A.S.I. Kuldeep Singh. Site plan at the spot was prepared. Statements of the witnesses were recorded. Appellants Bashir Mohammad and Farooq Mohammad were arrested and information was given to their relatives regarding their arrest. Personal search memos of the appellants were prepared. Case property was deposited by A.S.I. Kuldeep Singh with MHC Police Station Dalhousie.
4. On 25th March, 2018, case property was taken out from the Malkhana and appellants Bashir Mohammad and Farooq Mohammad ::: Downloaded on - 16/11/2022 20:33:39 :::CIS 5 were produced before the Judicial Magistrate 1st Class, Chamba alongwith the case property. On an application moved by the police, the Judicial Magistrate, 1st Class, Chamba, drew two samples of 26 .
grams each from the bulk contraband. The samples were made into sealed cloth parcels with five seals of Court bearing impression "JM Chamba". The samples as well as the case property were handed over by the Magistrate to ASI Kuldeep Singh. Magistrate issued the certificate under Section 52(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (here-in-after referred to as the "Act" in short).
5. On 27th March, 2018, appellants Bashir Mohammad and Farooq Mohammad were interrogated. During interrogation, appellant Farooq Mohammad disclosed that he had purchased the charas from appellant Bittu. Thereafter, police party went to the shop of the appellant Bittu and on search of his shop nothing was recovered.
Appellant Bittu was arrested on 31st March, 2018 and his arrest memo was prepared. Appellant Rehmat Ali was arrested on 3rd April, 2018 and information qua his arrest was given to his relatives.
6. One sample was sent to the Forensic Science Laboratory for examination and as per report of the FSL Ex.PW-23/C the recovered sample was of "charas".
7. After completion of investigation and necessary formalities, Challan was presented against the appellants. Charge was framed ::: Downloaded on - 16/11/2022 20:33:39 :::CIS 6 against the appellants Bittu Ram and Rehmat Ali under Section 20 and 25 read with Section 29 of the Act and against appellants Farooq Mohammad and Bashir Mohammad under Section 20 read with .
Section 29 of the Act.
8. Appellants did not plead guilty to the Charges framed against them and claimed trial.
9. In order to prove its case, prosecution examined 33 witnesses during trial. Appellants when examined under Section 313 of the Code of Criminal Procedure, 1973, prayed that they were innocent and a false case has been registered against them. The appellants did not examine any witness in their defence.
10. Trial Court vide judgment/order dated 31.10.2019/ 10.01.2020, convicted and sentenced the appellants as under:-
Under Section 20 (b) : Appellants Farooq Mohammad and Bashir
(ii) (C) read with Mohammad convicted and sentenced for Section 29 of Narcotic rigorous imprisonment for 12 years each Drugs and and to pay a fine of Rs. 1,20,000/- (Rs.
Psychotropic One lac and twenty thousand only) each. Substances Act, 1985 In default of payment of fine, they shall further undergo rigorous imprisonment for one year each.
Under Section 20 : Appellants Bittu and Rehmat Ali convicted
(b)(ii)(C) and 25 read and sentenced rigorous imprisonment for with Section 29 of the 12 years each and to pay a fine of Rs. Narcotic Drugs and 1,20,000/- (Rs. One lac and twenty ::: Downloaded on - 16/11/2022 20:33:39 :::CIS 7 Psychotropic thousand only) each. In default of payment Substances Act, 1985 of fine, they shall further undergo rigorous imprisonment for one year each.
.
All the sentences shall run concurrently.
The period of detention undergone by the convicts shall be set off as per the provisions contained in Section 428 of the Code of Criminal Procedure.
11. Hence, the present appeals by the appellants.
12. Learned counsel for the appellants have submitted that the sample examined by the Forensic Science Laboratory weighed 26 grams and there was no evidence on record to prove that the sample, which was examined in the laboratory, was representative sample drawn out of the recovered contraband from the appellants. Hence, the prosecution story was false.
13. So far as appellants Bittu Ram and Rehmat Ali are concerned, it has been argued by learned counsel for the appellants that there was no material to connect the said appellants with the alleged recovery. Even, the disclosure statements of the appellants from whom the contraband had been recovered, were not recorded by the Investigating Agency.
14. Learned Counsel for the appellants has placed reliance on the decision given by the Hon'ble Supreme Court in Criminal Appeal No.949 of 2018 (Arising out of Special Leave Petition (Criminal) ::: Downloaded on - 16/11/2022 20:33:39 :::CIS 8 No.9816 of 2017, titled Surinder Kumar Khanna versus Intelligence Officer Directorate of Revenue Intelligence, wherein, it was held as under:-
.
"14. In the present case it is accepted that apart from the aforesaid statements of co-accused there is no material suggesting involvement of the appellant in the crime in question. We are thus left with only one piece of material that is the confessional statements of the co-accused as stated above. On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. The appellant is therefore entitled to be acquitted of the charges leveled against him.
We, therefore, accept this appeal, set aside the orders of conviction and sentence and acquit the appellant. The appellant shall be released forthwith unless his custody is required in connection with any other offence."
15. Ms. Divya Sood, learned Deputy Advocate General, on the other hand, has opposed the appeals and has submitted that the prosecution had been successful in proving its case as the prosecution witnesses have duly supported the prosecution case.
16. As per the prosecution story, 3.873 kilograms of charas was recovered from the bag carried by the appellant Farooq ::: Downloaded on - 16/11/2022 20:33:39 :::CIS 9 Mohammad. At the time of recovery, said appellant was being accompanied by appellant Bashir Mohammad.
17. PW-2 Constable Sanjay Kumar, PW-3 Constable Suneel .
Kumar, PW-4 Constable Surinder Singh, PW-32 HC Virender Singh, have categorically deposed with regard to the recovery of the contraband from the possession of appellants Bashir Mohammad and Farooq Mohammad. Learned counsel for the appellants have failed to point out any major contradictions in the testimonies of the said witnesses to render their statements doubtful.
18. PW-5 Constable Subhash Chand has deposed that on 27th March, 2018, appellant Farooq Mohammad had shown the spot where the carry bag containing contraband had been handed over by the appellant Bittu Ram on 24th March, 2018.
19. PW-30 HC Vipin Singh has corroborated the statement of PW-5 Constable Subhash Chand.
20. PW-31 Davinder Verma, Nodal Officer, Bharti Airtel, has deposed that on 25th May, 2018, he had supplied the call detail report of Mobile No.9805858521 belonging to appellant Farooq Mohammad.
He had also supplied call detail of Mobile No.8894887695 belonging to appellant Bashir. He had also supplied call detailed report of mobile phone number 8894339127 of appellant Bittu and also supplied call detail report of mobile phone number of 8626855476 of Rehmat Ali.
::: Downloaded on - 16/11/2022 20:33:39 :::CIS 10He had issued the certificate under Section 65 B of the Information Technology Act. He had also produced the customer applications submitted by appellants Farooq Mohammad, Bashir Mohammad, Bittu .
Ram and Ms. Jatoon Khan.
21. So far as appellant Bittu is concerned, it has been stated by PW-33 ASI Kuldeep Singh that appellant Farooq Mohammad had disclosed that he had purchased the charas from appellant Bittu.
However, in his cross-examination, PW-33 has admitted that he had not recorded the disclosure statement of appellant Farooq Mohammad in this regard.
22. So far as appellant Rehmat Ali is concerned, PW-33 ASI Kuldeep Singh had deposed that the said appellant was arrested on 3rd April, 2018, but has not deposed to the effect that on what basis the said appellant was arrested. Although, in his cross-examination, he has deposed that there were talks between appellant Bashir Mohammad and appellant Rehmat Ali, but he had also admitted that he had not recorded disclosure statement of appellant Bashir Mohammad in this regard.
23. Prosecution has tried to establish its case that the contraband had been purchased by appellants Farooq Mohammad and Bashir Mohammad from appellant Bittu Ram, but apart from the testimony of PW-33 in this regard, there is no other material on record ::: Downloaded on - 16/11/2022 20:33:39 :::CIS 11 to connect appellant Bittu Ram with the alleged crime. Nothing incriminating was recovered from his house at the time of search.
24. So far as statements of PW-5 Constable Subhash Chand, .
PW-30 HC Vipin Singh and PW-33 ASI Kuldeep Singh to the effect that appellant Farooq Mohammad had demarcated the place from where he had received the contraband from appellant Bittu Ram is concerned, the same fails to advance the prosecution case as there is no disclosure statement of appellant Farooq Mohammad on record to the effect that he had purchased the contraband from appellant Bittu Ram.
25. So far as appellant Rehmat Ali is concerned, there is nothing on record with regard to his involvement in the crime. There is no disclosure statement of the appellant from whom recovery of contraband had been effected with regard to his involvement in the crime and further evidence to connect him with the alleged recovery of the contraband.
26. Thus, so far as appellants Bittu Ram and Rehmat Ali are concerned, prosecution has failed to establish their involvement in the crime.
27. The next question that arises for consideration is with regard to the fact as to whether the prosecution has been successful in establishing that the recovered contraband from the appellants Bashir ::: Downloaded on - 16/11/2022 20:33:39 :::CIS 12 Mohammad and Farooq Mohammad, weighed 3.873 kilograms, as deposed by the official witnesses.
28. PW-2 Constable Sanjay Kumar, PW-3 Constable Suneel .
Kumar, PW-4 Constable Surinder Singh and PW-32 HC Virender Singh have deposed that the recovered contraband was in the shape of 'sticks'.
29. A perusal of the order dated 25th March, 2018, passed by the Judicial Magistrate, 1st Class, Ex.PW-33/G, also reveals that the recovered contraband was in the shape of 'sticks'. As per the report of the Forensic Science Laboratory Ex.PW-23/C, the sample received for chemical examination was in the form of 'four sticks' and weighed 24.940 grams.
30. A perusal of the order Ex.PW-33/G, reveals that the contraband, alongwith the bag, weighed 3.926 kilograms and out of the said contraband two samples of 26 gram each were separated and were made into two separate cloth sealed parcels with seal bearing impression "JM Chamba". Perusal of the report of the FSL Ex.PW-
23/C also reveals that the sample received in the Laboratory was duly sealed with seals bearing impression "JM Chamba H.P"
31. Thus, as per the evidence on record, the seized contraband was in the shape of sticks. Two samples, weighing 26 grams each, were drawn by the Judicial Magistrate, 1st Class, Chamba.
::: Downloaded on - 16/11/2022 20:33:39 :::CIS 13PW-33 ASI Kuldeep Singh has not deposed anything about the mode and manner in which the samples were drawn from the contraband.
The Judicial Magistrate 1st Class, who had drawn the samples, has not .
been examined as a witness during trial. However, the order passed by the Judicial Magistrate Ex.PW-33/G has been carefully perused. A perusal of the said order also does not show that while drawing the samples the recovered contraband was made into a homogeneous mixture and thereafter representative samples were drawn. The recovered contraband was in the shape of 'sticks' and in such a situation it was incumbent upon the prosecution to establish that the representative samples had been drawn out of the entire recovered contraband. There is nothing on record to establish that any specific procedure was adopted for drawing a representative sample.
32. Ex.PW-23/C is the report of the Forensic Science Laboratory. A perusal of the same reveals that one sealed cloth parcel was received and on opening the said parcel, it was found that the substance was in the form of 'four sticks' and the net weight of the substance was 24.940 grams. After examination, it was opined that the exhibit was extract of cannabis and sample of 'charas'. Thus, the contraband, which reached the Forensic Science Laboratory for examination, weighed 24.940 grams and was in the shape of 'four sticks'.
::: Downloaded on - 16/11/2022 20:33:39 :::CIS 1433. Since in the present case there is no evidence on record to establish that representative samples, out of the entire recovered contraband, had been drawn, hence, it can be said to be a case of .
recovery of only 24.940 grams of charas.
34. In Khekh Ram Vs NCB, Criminal Appeal No. 450 of 2016 decided on 29.12.2017, Division Bench of this High court held as under:
"78. Additionally and more importantly, we notice that the entire bulk of the alleged contraband was not sent for analysis and only four samples of 25 grams each were, in fact, sent for analysis. Thus, taking the prosecution case at best what is proved on record is the recovery of only 100 grams of charas from the possession of the appellants . 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 appellants by taking the total quantity to be 12 grams and such finding was affirmed by Hon'ble Supreme Court, however, reversing such findings.::: Downloaded on - 16/11/2022 20:33:39 :::CIS 15
35. In State Vs Naresh Kumar, Criminal Appeal No. 782 of 2008 decided on 28.6.2019, Division Bench of this High court held as .
under:
"23. As quantum of recovery is concerned, as per prosecution case, 1 Kg. 500 grams charas was recovered from the respondent and after taking out two samples of 25 grams each, the remaining contraband was sealed in parcel and samples were also sealed in two different parcels. Bulk of charas claimed to be recovered from the respondent is Ext.P2 but during investigation and thereafter also, only one sample of 25 grams of charas was sent to CFSL Chandigarh for chemical analysis and as per chemical analyst report Ext. PX the sample was found to be of charas.
24. As per ratio laid down by the Apex Court in Gaunter Edwin Kircher vs. State of Goa, reported in (1993)3 SCC 145 the amount of contraband, recovered from the respondent, cannot be held more than that which was sent to the Chemical Analyst and was affirmed by the Forensic Science Laboratory as a contraband. The failure to send the entire mass for chemical analysis would result to draw inference that said contraband has not been analyzed and identified by CFSL as the charas.
25. Learned Single Judge of this Court in Dhan Bahadur vs. State of H.P. reported in 2009(2) Shim.L.C. 203, after relying upon the judgment in Gaunter Edwin Kircher's case supra, has held that only analyzed quantity of contraband can be said to have been recovered from the respondent. Applying the ratio of law laid down by the Apex Court and followed by learned Single Judge of this Court, we find that in the present case quantity of recovered contraband is to be taken as 25 grams only and ::: Downloaded on - 16/11/2022 20:33:39 :::CIS 16 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.
36. In State of HP Vs Sultan Singh and Others Criminal Appeal No. 324 of 2008, decided on 22.4.2016, Division Bench of this High court held as under:
"16. Charas was recovered from three different packets. PW- 8 Constable Bhupinder Singh has categorically admitted in his cross-examination that IO did not mix up contents of the packets Ext. P2 to P4. PW-10 ASI Ghanshayam himself has admitted in his cross-examination that he did not mix up the contents of three polythene packets. IO should not have continued with the preparing of documents till the police official, who was sent to get independent witnesses, came back. IO should have made entire contraband homogenous for the purpose of chemical examination."
37. In State of Himachal Pradesh Vs Sohan Singh, Criminal Appeal No. 259 of 2009 decided, on 23.12.2015, Division Bench of this High court held as under:
"16. We have not understood why IO has sent PW-2 Hitender Kumar to an area which was not thickly populated instead of sending towards an area which was thickly populated to call independent witnesses. Case of the prosecution is that appellants 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 ::: Downloaded on - 16/11/2022 20:33:39 :::CIS 17 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 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."
38. Thus, from the evidence available on record, we are of the opinion that the sample weighing 26 gram of charas examined by the Forensic Science Laboratory was not the representative sample of the entire bulk and therefore, appellants cannot be held to have been found in illegal conscious possession of 3.926 kilogram of charas and they can be held to be in possession of 26 gram of charas or at the most 52 gram of charas by including the weight of other sample, which, as per the Act, would fall within the definition of small quantity.
39. Accordingly, appellants Farooq Mohammad and Bashir Mohammad are held guilty of offence under Section 20 read with Section 29 of the Act for having been found in conscious possession of ::: Downloaded on - 16/11/2022 20:33:39 :::CIS 18 only small quantity of charas and are sentenced to undergo rigorous imprisonment for one year. The sentence qua fine is set-aside under Section 20 read with Section 29 of the Act. The impugned judgement .
of conviction and order of sentence passed by the learned trial Court is accordingly modified.
40. The appellants (Bashir Mohammad and Farooq Mohammad) were arrested on 24.3.2018. They remained in judicial custody till the conclusion of trial and thereafter are undergoing the sentence. Since the appellants have already undergone much more sentence than could be inflicted upon them, the appellants are ordered to be released immediately, if not required in any other case.
41. So far as appellants Bittu Ram and Rehmat Ali are concerned, the appeals filed by them, bearing Cr. Appeal No. 127 of 2020 and Cr. Appeal No. 126 of 2020, are allowed. Accordingly, the judgement of conviction and sentence passed by the learned Special Judge, Chamba, dated 31.12.2019/10.01.2020, in Sessions Trial No. 40/2018, are set-aside qua them. Appellants Bittu Ram and Rehmat Ali are acquitted of the charge framed against them under Sections 20(b)(ii)(C) and 25 read with Section 29 of the Act . Appellants be set at liberty forthwith, if not required in any other case.
42. In view of the provisions of Section 437 of Code of Criminal Procedure, 1973, appellants are directed to furnish their ::: Downloaded on - 16/11/2022 20:33:39 :::CIS 19 personal bond in the sum of Rs. 25,000/- each with one surety in the like amount each before the learned Registrar (Judicial) of this Court, which shall be effective for a period of six months with stipulation that .
in the event of Special Leave Petition being filed against this judgment, or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Supreme Court.
43. The Registry is directed to prepare the release warrants, forthwith.
44. The appeals are accordingly disposed of. Pending applications, if any, also stand disposed of.
(Sabina) Judge (Sushil Kukreja) th 16 November, 2022 (™) Judge ::: Downloaded on - 16/11/2022 20:33:39 :::CIS