Himachal Pradesh High Court
Between vs State Of Goa on 7 April, 2022
Bench: Sabina, Satyen Vaidya
-1-
Reportable/Non-reportable
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE DAY OF 7th APRIL, 2022
.
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL APPEAL Nos. 15, 23 & 86 of 2009
1. CRIMINAL APPEAL NO. 15 OF 2009
Between:-
SHRI ASHOK KUMAR,
SON OF SHRI NAND LAL,
RESIDENT OF VILLAGE AND
POST OFFICE DALASH, TEHSIL
ANNI, DISTRICT KULLU, H.P.
....APPELLANT
(BY SH. N. S. CHANDEL, SR. ADVOCATE WITH SH. VINOD
K. GUPTA, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH.
.... RESPONDENT
(SH. VIKRANT CHANDEL, DEPUTY ADVOCATE GENERAL)
2. CRIMINAL APPEAL NO. 23 OF 2009
Between:-
RAMESH CHAND,
S/O SH. RANJU RAM @ LANJU RAM,
R/O VPO KANDA GHAI, TEH. AND PS
AANI, DISTT. KULLU, HP.
....APPELLANT
(BY SH. MANOJ PATHAK, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH.
.... RESPONDENT
::: Downloaded on - 07/04/2022 20:12:03 :::CIS
-2-
(SH. VIKRANT CHANDEL, DEPUTY ADVOCATE GENERAL)
3. CRIMINAL APPEAL NO. 86 OF 2009
.
Between:-
STATE OF H.P.
....APPELLANT
(SH. VIKRANT CHANDEL, DEPUTY ADVOCATE GENERAL)
AND
1. RAMESH CHAND,
S/O SH. RANJU RAM ALIAS
LANJU RAM, R/O V&PO KANDA
GHAHI, TEHSIL AND PS AANI,
DISTT. KULLU, HP
2. ASHOK KUMAR,
S/O SH. NAND LAL,
R/O V&PO DALASH TEHSIL
AANI, DISTT. KULLU, H.P.
....RESPONDENTS
(SH. TARUN PATHAK, ADVOCATE, FOR R-1).
(BY SH. N. S. CHANDEL, SR. ADVOCATE WITH SH. VINOD
K. GUPTA, ADVOCATE)
Reserved on: 29.3.2022
Date of decision: 7.4.2022.
----------------------------------------------------------------------------------------------
These appeals coming on for hearing this day, Hon'ble
Mr. Justice Satyen Vaidya, delivered the following:
JUDGMENT
All these appeals are being disposed of together, as they arise from the single judgment and sentence dated 31.12.2008/ 17.01.2009 and also involve identical questions of facts and law.
::: Downloaded on - 07/04/2022 20:12:03 :::CIS -3-2. Ashok Kumar and Ramesh Chand were jointly tried for commission of offence under Section 20 of the NDPS Act in Sessions Trial No. 13-S/7 of 2008 by learned Special Judge II, Solan. Both .
were convicted for said offence and were sentenced to undergo imprisonment for two years each with fine of Rs. 40,000/- each and in default of payment of fine to further undergo imprisonment for six months each. While passing the aforesaid sentence learned Special Judge has recorded reasons as under:
"The contraband recovered was 4 Kg 200 Grams. On the test in the FSL resin which is an active ingredient of Charas and falls within offending item was found to be 12.90% w/w which if calculated out of 4 Kg 200 grams will not be more than 500.08 grams which is more than small quantity but less than commercial quantity, thereby this matter is covered under section 20 (1) (b) of the Act."
3. Whereas, in Cr. Appeals No. 15 of 2009 and 23 of 2009 appellants Ashok Kumar and Ramesh Chand have assailed their respective conviction and sentence, State has filed appeal No. 86 of 2009 seeking enhancement of their sentence.
4.1 The case as set up by prosecution was that on 8.5.2008, a police party consisting of Insp/SHO Ramesh Chand (PW-9), ASI Prithvi Chand (PW-10), HC Kanwar Singh (PW-1), HC Nand Lal (PW-
2), C. Gurbax Singh (PW-3) and C. Desh Raj (not examined) left Police Station, Parwanoo, District Solan, H.P., at 9.10 PM for ::: Downloaded on - 07/04/2022 20:12:03 :::CIS -4- patrolling and crime detection vide DDR No. 41(A) Ext. PW-7/D. They laid check Naka on NH-22, Sector-6, Parwanoo.
4.2 At about 10.00 PM a vehicle (Trax) No. HP-02A-0289 .
came from the side of Solan and was stopped for checking. The said vehicle was being driven by appellant Ashok Kumar (Criminal Appeal No. 15 of 2009) and appellant Ramesh (Criminal Appeal No. 23 of 2009) was found sitting on front seat as passenger. Ramesh Chand was holding a bag on his lap. The bag was checked and a carton was found inside. Black coloured substance in the shape of balls and cakes, wrapped in polythene sheets were found in the carton.
The recovered substance was found to be charas from its smell and identification memo Ext PW-1/A was prepared.
4.3 The recovered substance was weighed and found 4 Kg 200 grams. Two separate samples weighing 25 grams each were taken. The samples as well as balance bulk contraband were sealed in separate cloth parcels with six seals each having impression "W".
Facsimile of seal impression was separately preserved on piece of cloth Ext PW-1/B. NCB form Ext.PW-1/C was filled. Seizure memo of bulk contraband and samples Ext. PW-1/D was prepared.
4.4 PW-9 Insp./SHO Ramesh Chand prepared "RUKKA" Ext.
PW-3/A and sent the same to Police Station for registration of FIR through PW-3 C. Gurbax Singh. PW-8 ASI Prem Singh made endorsement Ext PW-8/A thereon. FIR No. 84/08 Ext. PW-7/A was registered.
::: Downloaded on - 07/04/2022 20:12:03 :::CIS -5-4.5 PW-9 Insp./SHO Ramesh Chand handed over further investigation to PW-10 ASI Prithvi Chand vide memo Ext PW-1/E. Appellants were stated to have been formally arrested.
.
4.6 The recovered contraband and samples were handed over to PW-7 HC Hem Raj (MHC) and report Ext PW-7/B was made to this effect in Malkhana Register. On 9.5.2008 one sealed sample Ext P-5 was sent to FSL Junga for chemical examination through PW-4 C. Krishan Kumar. On the same day i.e. 9.5.2008 special report PW-5/A under section 57 of the Act was prepared and sent to superior officer. On 20.6.2008 the SFSL report along with sample were received back at Police Station through C. Vijay Kumar (not examined). The SFSL, Junga reported the samples sent to it to be the charas.
5. On completion of investigation, challan was presented and appellants were accordingly charged. They pleaded not guilty.
On conclusion of trial, the appellants were held guilty for commission of offence under Section 20 of the NDPS Act and were convicted and sentenced as notice above.
6. We have heard learned counsel for the parties and have also gone through the record carefully.
7. PW-1 HC Kanwar Singh, PW-2 HC Nand Lal, PW-3 C Gurbax Singh No. 725, PW-9, Inspector Ramesh Chand and PW-10 ASI Prithvi Chand were examined by the prosecution as spot witnesses. Their statements are relevant for assessing the allegation ::: Downloaded on - 07/04/2022 20:12:03 :::CIS -6- of recovery of 4 Kg 200 Grams of charas from appellants and also its mode and manner.
8. All the above noted spot witnesses have been in unison .
in narration of the sequence of events, those took place at spot. It is stated by them that on 8.5.2008 Trax No. HP-02A-0289 was checked. Appellants were found occupying the vehicle. Ashok Kumar was the driver and Ramesh Chand was the passenger. A bag was found on the lap of appellant Ramesh Chand. The bag was checked and was found containing a carton taped with adhesive tape. Charas weighing 4 Kg 200 Grams was found in the carton.
Two samples of 25 gms. each were drawn. Samples as well as bulk contraband were separately sealed.
9. As per PW-1, PW-9 and PW-10, the vehicle (Trax) was stopped by police party at about 10.00 p.m., whereas according to PW-2, the time of interception of vehicle was 10.30 p.m. Spot witnesses described the nature of contraband recovered from appellants as under: -
Sr. Witness Description
No.
1. PW-1 HC Kanwar Ball shape and cake shape object
Singh wrapped in polythene.
2. PW-2 HC Nand Lal In shape of sticks wrapped in
polythene, which was round and
chapti.
3. PW-3 constable Brown coloured round shape object
Gurbax Singh wrapped in polythene.
4. PW-9 Inspector Some cake type and ball shape
Ramesh Chand object in brownish coloured found
in thin polythene.
5. PW-10 ASI Prithvi Containing cake shape and ball Chand shape object wrapped in thin polythene.
::: Downloaded on - 07/04/2022 20:12:03 :::CIS -7-10. The case property was opened in the Court in presence of learned Special Judge during examination of PW-1 HC Kanwar .
Singh and it was recorded as under: -
"Inside the bag a carton box found containing cake like and ball shape object covered with polythene".
11. All the spot witnesses have further unanimously stated that two samples of 25 gms each were taken out. However, the details of procedure adopted for sampling has not been narrated by any of them. PW-9 Inspector Ramesh Chand was the Investigating Officer. He simply stated as under: -
"Two samples of 25 gms. each were taken out. Both the samples as well as remaining bulk of charas were wrapped separately in cloth parcels and the parcels were sealed with seal impression 'W' at six points each."
12. Admittedly, only one sample weighing 25 gms. was sent for chemical examination to SFSL, Junga. As per examination report Ext. PW-10/B, the sample weighing 24.722 gms. was received in the Laboratory.
13. The question, in the given facts and circumstances of the case, now arises whether the entire quantity of substance recovered from appellants by the police was "Charas" or not? As noticed above, the entire quantity of 4 Kg 200 Grams was not a single mass.
All the spot witnesses have stated that it was in the shape of balls, cakes or chapti and were wrapped in thin polythene. This fact is ::: Downloaded on - 07/04/2022 20:12:03 :::CIS -8- corroborated from the proceedings recorded by the learned Special Judge, when it was recorded, during the examination of PW-1, that sealed packet on opening was found to contain cake like and ball .
shaped object. Further perusal of seizure memo Ext. PW-1/D, Rukka Ext. PW-3/A and special report Ext. PW-5/A, reveals that the recovered substance was described as cake and balls shaped substance. It will be relevant to reproduce the exact Hindi vernacular version recording nature of recovered substance in memos PW-1/D, PW-3/A and special report PW-5/A as under:
"िट ी नुमा ा क की पि यो म िलपटी व गोली नु मा
भूरे रं ग का पदाथ पाया गया"
From the entirety of aforesaid material, there remains no doubt that the substance was not a single mass and rather was having plurality of masses. Whether the different shaped masses of substance were made homogenous or the sample contained material from all masses is in the realm of suspense. None of the prosecution witnesses have uttered even a single word in this regard. The prosecution carried a heavy onus to prove its case beyond all reasonable doubts. To hold the entire bulk substance to be Charas there had to be some scientific evidence declaring so. In the case in hand the entire bulk was being branded as charas on the basis of SFSL report Ext PW-
10/B, where as its scrutiny reveals laboratory examination of less than 25 gms. of substance. To hold the sampled substance Ext P-5 to be representative of entire bulk it had to be proved by prosecution that the sample examined, in fact, was the true representative ::: Downloaded on - 07/04/2022 20:12:03 :::CIS -9- sample of the entire bulk. This evidence, in our considered view is clearly missing in the case in hand.
14. 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 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 ::: Downloaded on - 07/04/2022 20:12:03 :::CIS -10- 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
(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 r 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."
15. 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 ::: Downloaded on - 07/04/2022 20:12:03 :::CIS -11- was amended in 2014, nevertheless the contemporaneous provision contained in Section 52A on 8.5.2008 i.e. at the time of commission of offence, substantially carried the same mandate as amended .
16. 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 packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn.::: Downloaded on - 07/04/2022 20:12:03 :::CIS -12-
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 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 ::: Downloaded on - 07/04/2022 20:12:03 :::CIS -13- 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.
17. 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 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], ::: Downloaded on - 07/04/2022 20:12:03 :::CIS -14- 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."
18. 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 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 ::: Downloaded on - 07/04/2022 20:12:03 :::CIS -15- 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 (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 ::: Downloaded on - 07/04/2022 20:12:03 :::CIS -16- 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 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 ::: Downloaded on - 07/04/2022 20:12:03 :::CIS -17- under this Act and make an application, to any Magistrate for the purpose of--
(a) certifying the correctness of the inventory so prepared;
.
or
(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 ::: Downloaded on - 07/04/2022 20:12:03 :::CIS -18-
(a) certifying the correctness of the inventory,
(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 well to re-examine the matter and take suitable steps in above direction."
::: Downloaded on - 07/04/2022 20:12:03 :::CIS -19-19. 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 4 Kg 200 Grams of substance, failing which it can be a case of recovery of only 25 gms.
of charas of at the most 50 grams by including weight of second sample, having entirely legal consequences.
20. 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 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 ::: Downloaded on - 07/04/2022 20:12:03 :::CIS -20- 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 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 ::: Downloaded on - 07/04/2022 20:12:03 :::CIS -21- 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.
21. In above view of the matter, we propose to examine it from another angle. Though the non-association of independent witnesses is always not fatal to the prosecution case, yet, this aspect gains relevance and importance in case where other available material on record creates suspicion. The time of recovery is somewhere between 10.00 to 10.30 p.m. and the date is 8.5.2008.
Place of recovery is NH-22, Sector-6, Parwanoo which is a busy highway. It is highly improbable that in peak summer month no traffic would be available between 10.00 to 10.30 p.m. on the spot of recovery. It is also not the case that no habitation was available in the near vicinity. That being so, independent witnesses could be associated at least to provide some semblance of fairness in the sampling procedure. We are aware that in chance recovery unless the witnesses are already available before recovery, subsequent inclusion will not be material, however to attach fairness to sampling ::: Downloaded on - 07/04/2022 20:12:03 :::CIS -22- being done on spot the requirement of independent witnesses cannot be undermined, especially in the facts of the present case.
22. Doubt is also created from the fact that the parcels .
containing samples did not bear the signatures of appellant Ramesh Kumar, which according to us is not a simple lapse or omission, which can be ignored.
23. We consider it appropriate to reproduce hereunder the observations and conclusions rendered by different Division Benches of this Court while dealing with identical or akin proposition from time to time.
24. 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 ::: Downloaded on - 07/04/2022 20:12:03 :::CIS -23- 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.
25. 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 draw inference that ::: Downloaded on - 07/04/2022 20:12:03 :::CIS -24- 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.
26. 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 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."::: Downloaded on - 07/04/2022 20:12:03 :::CIS -25-
27. 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 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."
28. Thus, from the entirety of evidence available on record we are not convinced that the sample of 25 grams Ext P-5 was ::: Downloaded on - 07/04/2022 20:12:03 :::CIS -26- representative of entire bulk and hence appellants in appeals Nos. 15 of 2019 and 23 of 2019 can be held to be in conscious possession of 25 grams of Charas or at the most 50 gms. by including the weight of .
other sample, which as per the Act is small quantity.
29. Prior to amended Act 16 of 2014, the punishment involving small quantity of charas under Section 20(b)(ii)(A) was rigorous imprisonment for a term extending upto six months or with fine extending upto Rs. 10,000/- or with both. Appellant Ashok Kumar in Criminal Appeal No. 15 of 2009 was arrested on 9.5.2008 and was released on bail on 27.7.2008. Appellant Ramesh Chand was arrested on 9.5.2008 and remained in custody during entire trial. The appellant Ramesh Chand thus has remained in custody for period exceeding the period of sentence prescribed for the commission of offence 20(b)(ii)(A). In our considered opinion, the appellants have already undergone the agony of facing hanging-
sword on their heads since 9.5.2008 i.e. for a period of almost 14 years. The interest of justice will adequately be served in case the appellants are sentenced to imprisonment already undergone by them during the trial and to pay fine of Rs. 10,000/- each. The appellant Ramesh Chand having remained in custody for the period in excess of period of sentence cannot be reversed. Both the appellants had deposited the fine amount of Rs. 40,000/- each in compliance to orders passed by this Court suspending their respective substantive sentence, therefore, the balance amount be refunded to the appellants after deducting the amount of fine ::: Downloaded on - 07/04/2022 20:12:03 :::CIS -27- imposed hereby. Criminal Appeal No. 15 of 2009 and Criminal Appeal No. 23 of 2009 are accordingly disposed of and as necessary consequence thereof, State appeal bearing Criminal Appeal No. 86 of .
2009 is dismissed. Records of learned Court below be sent back forthwith.
(Sabina)
Judge
(Satyen Vaidya)
7th April, 2022 Judge
(kck) r
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