Himachal Pradesh High Court
State Of Himachal Pradesh vs Budh Ram on 1 July, 2016
Bench: Rajiv Sharma, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 304/2011
Reserved on: June 30, 2016
Decided on: July 1, 2016
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State of Himachal Pradesh ...... Appellant
Versus
Budh Ram ........Respondent
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Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge
Hon'ble Mr. Justice Vivek Singh Thakur, Judge
of
Whether approved for reporting? 1 yes.
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For the appellant : Mr. P.M. Negi, Deputy Advocate
General
For the respondent
rt : Mr. Anup Chitkara, Advocate.
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Per Rajiv Sharma, Judge:
The State has come in appeal against Judgment dated 30.4.2011 rendered by learned Presiding Officer (Special Judge) Fast Track Court, Mandi, District Mandi, HP in Sessions Trial No. 28 of 2010, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Sections 18 and 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), has been acquitted by the learned trial Court.
2. Prosecution case, in a nutshell, is that on 7.1.2010, ASI Ram Lal, the then IO Police Station, Sadar, Mandi, alongwith ASI Mohan Lal, HHC Dharam Pal, LHC Narpat Ram, Constable Kashmir Singh and Constable Suresh Kumar was present at 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:44:23 :::HCHP 2Khoti Nala on patrolling and Nakabandi. At about 12.30 PM, accused came from Aut side. He was carrying a bag on his shoulder. On seeing the police party, he tried to run. He was .
apprehended. The place was secluded. No independent witnesses were available. Vehicles passing through the road were stopped and occupants were requested to become witnesses. However, they expressed their unwillingness. ASI Ram Lal, in the presence of of ASI Mohan Lal and HHC Dharam Pal searched the bag carried by the accused. It was found to be containing another plastic bag like Boru of light blue colour containing black coloured material rt in it, in the shape of sticks. It was found to be cannabis. Besides this, two plastic packets were also found in the Boru containing brown coloured liquid material. It was found to be opium.
Cannabis weighed 5 kg. Opium weighed 1.500 kg. Recovered cannabis was put in the same plastic Boru. Packets containing opium were also put in that same plastic Boru. Plastic Boru was put in bag and bag was parceled and sealed with 16 seals of 'S'.
NCB form in triplicate was filled in on the spot. Sample seal was separately taken. Facsimile of seal was also taken on NCB form.
Seal after use was handed over to ASI Mohan Lal. Recovered cannabis and opium were taken into possession by the police vide memo Ext. PW-1/B. Rukka was sent to the police station through LHC Narpat Ram, on the basis of which FIR No. 16/2010 was recorded against the accused. Case property alongwith sample seals was handed over to Inspector Hari Pal ::: Downloaded on - 15/04/2017 20:44:23 :::HCHP 3 Saini. He resealed the same with seal impression 'S' and thereafter deposited the case property alongwith sample seal, NCB form and other related documents with Incharge Malkhana .
Anil Kumar. Special report was prepared and sent to Additional SP Mandi. Case property was sent for chemical examination.
Report of the FSL is Ext. PW-8/B. Investigation was completed.
Challan was put in the Court after completing all the codal of formalities.
3. Prosecution has examined as many as eleven witnesses to prove its case against the accused. Accused was also rt examined under Section 313 CrPC. He pleaded innocence.
Accused was acquitted as noticed above. Hence, this appeal by the State.
4. Mr. P.M. Negi, Deputy Advocate General, has vehemently argued that the prosecution has proved its case against the accused.
5. Mr. Anoop Chitkara, Advocate, has supported Judgment dated 30.4.2011.
6. We have heard the learned counsel for the parties and also gone through the Judgment and record carefully.
7. ASI Mohan Lal (PW-1) testified that on 7.1.2010 he alongwith HHC Dharam Pal, LHC Narpat Ram, ASI Ram Lal, Constable Suresh Kumar and Constable Kashmir Singh was present at Khoti Nalla and had set up Naka at Khoti Nalla.
Accused was seen coming on foot from Aut side towards Mandi.
::: Downloaded on - 15/04/2017 20:44:23 :::HCHP 4He was carrying a bag on his shoulder. He tried to run away. He was apprehended. Spot was secluded one so IO asked the drivers and conductors of the bus passing there for being associated as .
witnesses in the case. However, they refused to be associated as independent witnesses. Thereafter, he and HHC Dharam Pal were associated as witnesses in the case. Bag carried by accused was searched. A light blue coloured Boru containing black coloured of material in the shape of sticks and other two polythene packets containing liquid black material was recovered. Black material was found to be cannabis and liquid material was found to be rt opium. Cannabis weighed 5 kg and opium weighed 1.5 kg.
Recovered cannabis was put in a parcel alongwith Boru. Parcel was sealed with seal impression 'R' at 16 places. Opium packets were also put in same parcel and sealed with seal impression 'R' at 16 places. Recovery memo Ext. PW-1/B was prepared. NCB form in triplicate was also filled in at the spot. Seal was handed over to him. Sample seal Ext. PW-1/C was taken on a piece of cloth. In his cross-examination, he has admitted that they left the Police Station at 8.30 AM in a private Sumo Jeep driven by a private driver. They took the vehicle straight to Khoti Nalla They did not stop on the way. No Naka was laid before reaching the spot. Khoti Nala was 26 kms from PS Mandi on National Highway
21. After the proceedings were completed, they returned in a private bus to the Police Station. He did not know if tickets were purchased. He also deposed that Naka was laid at Khoti Nalla at ::: Downloaded on - 15/04/2017 20:44:23 :::HCHP 5 9.30 AM to 12.30 PM. He denied the suggestion that there were two shops and a residence at the alleged place of Naka They checked about 20-25 vehicles at Khoti Nala. About 15-20 buses .
were stopped by the IO and they had requested the drivers and conductors of the said buses to become independent witnesses.
8. LHC Narpat Ram (PW-2) deposed the manner in which search, seizure and sampling proceedings were completed of at the spot. He was handed over Rukka by the IO. He took the same to the Police Station, on the basis of which FIR Ext. PW-
2/A was registered. In his cross-examination, he has admitted rt that about 30-40 vehicles were checked by the IO before the accused was spotted. He denied the suggestion that there were two tea shops and a house at the alleged place of Naka. He denied that there was a temple at the place of incident. IO had stopped 8-10 vehicles and requested their drivers to become witnesses. IO had hired Sumo Taxi from Taxi Stand Mandi.
9. HC Anil Kumar (PW-3) deposed that on 7.1.2010 Inspector/ SHO Hari Pal Saini deposited with him case property alongwith relevant documents. He entered the case property in Malkhana Register at Sr. No. 953. He proved copy of abstract of Malkhana Register Ext. PW-3/A. Case property was sent to FSL through Constable Sanjeev Kumar vide RC No. 249/2010, copy of which is Ext. PW-3/B. Constable after obtaining receipt from FSL Junga, over RC, handed over the same to him on his return to the Police Station. Case property remained safe and intact during ::: Downloaded on - 15/04/2017 20:44:23 :::HCHP 6 the period it remained in his custody. In his cross-examination, he has admitted that olumn No. 7 of the Malkhana Register did not contain the signature of the SHO. He admitted that this .
column was meant for signature of the person who received the case property. However, the property has remained in the safe custody from the date of its seizure till production in the Court and the column No. 7 being not signed by the SHO, has not of prejudiced the case of the accused.
10. HC Sanjeev Kumar (PW-6) deposed that on 8.1.2010, Anil Kumar handed over to him one parcel alongwith related rt documents for delivering the same to FSL Junga vide RC No. 249/10, Ext. PW-3/B. He took the case property and delivered at FSL Junga on the same day. He obtained receipt over RC. He deposited the receipt with MHC Police Station on his return. Case property remained safe and intact during the period it remained in his custody.
11. Inspector Hari Pal (PW-8) deposed that on 7.1.2010, at about 5.30 PM, case property was deposited with him by ASI Ram Lal. He resealed the same with seal impression 'S' at nine places. Case property was already sealed with seal 'R' at 16 places and seals were intact. He prepared reseal memo Ext. PW-
8/A. He handed over the case property to the Incharge Malkhana Anil Kumar.
12. ASI Ram Lal (PW-11) deposed that on 7.1.2010, he alongwith ASI Mohan Lal, HHC Dharam Pal, LHC Narpat Ram, ::: Downloaded on - 15/04/2017 20:44:23 :::HCHP 7 Constable Suresh Kumar and Constable Kashmir Singh proceeded towards Pandoh Khoti Nala for Nakabandi. They set up Naka at Khoti Nala on National Highway at about 11 AM. At .
about 12.30 PM a person was seen coming from Aut side towards Pandoh. He was coming on foot and was carrying a bag on his right shoulder. The person on seeing the police tried to flee. He was nabbed. ASI Mohan Lal and HHC Dharam Pal were of associated as witnesses. Search of the bag carried by the accused was conducted. A plastic Boru light blue in colour was found and inside the Boru black coloured material in the shape of sticks was rt recovered. It was found to be cannabis. Two plastic envelopes containing black molten material were found which was found to be opium. Cannabis weighed 5 kg and opium weighed 1.5 kg.
Cannabis and opium were packed and sealed with same Boru and plastic envelope alongwith bag. Parcel was sealed with seal impression 'R' at sixteen places. Sample seal Ext. PW-1/C was separately drawn over a piece of cloth. Seal after use was handed over to ASI Mohan Lal. He prepared Rukka Ext. PW-11/A and sent to the Police Station through LHC Narpat Ram for registration of the case. In his cross-examination, he has admitted that there were two shops located at Khoti Nala but these were located at a distance of about 200 metres from the place where Naka was laid. He admitted that there was a bridge on Khoti Nala. He further admitted that Mandi side of Khoti Nala, Pandoh town was situate and on the other side, towards Kullu, ::: Downloaded on - 15/04/2017 20:44:23 :::HCHP 8 Aut town was situate. He denied the suggestion that there was a village near Khoti Nala at a height of 50-60 metres. He further admitted that the police party had gone to Khoti Nala in a public .
bus from Bus Stand Mandi. He did not remember whether it was a private bus or HRTC bus. He also did not remember if tickets were purchased for their journey. Khoti Nala was about 26 kms from Mandi. On the way they had got down from the bus and of had also laid Naka at one or two places. He did not remember the places where Naka was laid. When they got down from first bus, they hired another bus for Khoti Nala. Accused was spotted rt when he had reached within 20 metres from them. Columns No. 1 to 8 of NCB form Ext. PW-8/C were filled by him on the spot.
13. Case of the prosecution, precisely, is that the accused was apprehended at a place near Khoti Nala. He was carrying a bag. He tried to flee. He was overpowered. 5 kg cannabis and 1.5 kg opium was recovered from the bag. All the codal formalities were completed on the spot. Case property was produced before PW-8 Inspector Hari Pal. He resealed the same with seal impressions of 'S'. Case property was produced before MHC Anil Kumar. He made entry in the Malkhana Register at Sr. No. 953. Case property was sent to FSL Junga through Constable Sanjeev Kumar (PW-6) by Anil Kumar (PW-3). Sanjeev Kumar (PW-6) has deposited the case property. It remained intact in their custody. Report of FSL is Ext. PW-8/B. Learned trial Court has acquitted the accused on the ground that the ::: Downloaded on - 15/04/2017 20:44:23 :::HCHP 9 independent witnesses were not associated at the time when accused was arrested, search, seizure and sampling proceedings were completed at the spot. According to the learned trial Court, .
there were major contradictions in the statements of PW-1 ASI Mohan Lal and ASI Ram Lal (PW-11) at what time, Naka was laid. The ground for the acquittal of the accused is that the prosecution did not prove that the contraband recovered from the of accused was cannabis and opium. He has relied upon 2010(1) Him. L.R. (DB)598, State of HP vs. Parkash Chand.
14. PW-1 Mohan Lal rt in his statement has specifically deposed that the place where accused was apprehended was a secluded place. IO had requested the drivers and conductors of the buses passing through the area to be associated as witnesses in the case but they were not ready and willing to be associated as witnesses. He has denied the suggestion, in the cross-examination that there were two shops and residence at the alleged place of Naka . PW-2 Narpat Ram has also deposed that no person from the locality came on the spot. IO had stopped 8-10 vehicles and requested their drivers to become witness. PW-11 Ram Lal has also deposed that since the place was secluded, no independent witnesses were available to become witnesses. He stopped vehicles and the occupants of the vehicles were requested to become witnesses, however nobody was ready and willing to become witness. In these circumstances, HHC Dharam Pal and Mohan Lal were associated as witnesses.
::: Downloaded on - 15/04/2017 20:44:23 :::HCHP 10In his cross-examination, he has admitted that two shops and residence were situate at Khoti Nala but these were 200 metres from the place where Naka was laid.
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15. It is, thus, evident that the police has tried to join independent witnesses but they were not available. Statements of the official witnesses i.e. PW-1 ASI Mohan Lal, HHC Narpat Ram (PW-2) and ASI Ram Lal (PW-11) are trustworthy and inspire of confidence. Mohan Lal (PW-1) and Narpat Ram (PW-2) deposed that they have gone to the spot in Sumo Jeep. However, ASI Ram Lal (PW-11) has deposed that he has gone in bus. These are rt minor contradictions in the statements of PW-1 Mohan Lal, PW-2 Narpat Ram and PW-11 Ram Lal about the mode of transportation to reach the spot. There are bound to be minor contradictions when a case is registered and statements of the witnesses are recorded in the Court after a considerable gap of time. PW-1 Mohan Lal has deposed that Naka was laid at 9.30 AM, PW-11 Ram Lal deposed that Naka was laid at 11 AM. This is a minor contradiction. It will not help the case of the accused in any manner. Fact of the matter is that Naka was set up at Khoti Nala, from where accused was arrested at about 12.15 AM.
16. Learned trial Court has erred in law by relying upon judgment reported in 2010(1) Him. L.R. (DB)598, State of HP vs. Parkash Chand as the same has been overruled by this Court in the case of State of H.P. vrs. Mehboon Khan and analogous matters, reported in Latest HLJ 2014 (HP) (FB) 900. The Full ::: Downloaded on - 15/04/2017 20:44:23 :::HCHP 11 Bench of this Court has categorically held that there is no legal requirement of the presence of particular percentage of resin to be there in the sample and the presence of the resin in purified or .
crude form is sufficient to hold that the sample was that of Charas. It has been held as follows:
"..............The separated resin is cannabis resin not only when it is in 'purified' form, but also when in 'crude' form or still mixed with other parts of the plant. Therefore, the resin mixed with other parts of the plant i.e. in 'crude' form is also charas within the meaning of the Convention and the Legislature in its of wisdom has never intended to exclude the weight of the mixture i.e. other parts of the plant in the resin unless or until such mixture proves to be some other neutral substance and not that of other parts of the cannabis plant. Once the expert expressed the opinion that after conducting the required tests, he found the resin present in the stuff and as charas is a resinous mass rt and after conducting tests if in the opinion of the expert, the entire mass is a sample of charas, no fault can be found with the opinion so expressed by the expert nor would it be appropriate to embark upon the admissibility of the report on any ground, including non-mentioning of the percentage of tetrahydrocannabinol or resin contents in the sample.............
f. We are also not in agreement with the findings recorded by the Division Bench in Sunil's case that " mere presence of tetrahydrocannabinol and cystolithic hair without there being any mention of the percentage of tetrahydrocannabinol in a sample of charas is not an indicator of the entire stuff analyzed to be charas" for the reason that the statute does not insist for the presence of percentage in the stuff of charas and mere presence of tetrahydrocannabinol along with cystolithic hair in a sample stuff is an indicator of the same being the resin of cannabis plant because the cystolithic hair are present only in the cannabis plant. When after observing the presence of tetrahydrocannabinol and cystolithic hair, the expert arrives at a conclusion that the sample contains the resin contents, it is more than sufficient to hold that the sample is of charas and the view so expressed by the expert normally should be honoured and not called into question. Of course, neutral material which is not obtained from cannabis plant cannot be treated as resin of the cannabis plants. The resin rather must have been obtained from the cannabis plants may be in 'crude' form or 'purified' form. In common parlance charas is a hand made drug made from extract of cannabis plant. Therefore, any mixture with or without any neutral material of any of the forms of cannabis is to be considered as a contraband article. No concentration and percentage of resin is prescribed for 'charas' under the Act.."::: Downloaded on - 15/04/2017 20:44:23 :::HCHP 12
17. Prosecution has proved beyond reasonable doubt that cannabis and opium were recovered from the conscious and exclusive possession of the accused.
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18. Accordingly, the appeal is allowed. Judgment dated 30.4.2011 rendered by learned Presiding Officer (Special Judge) Fast Track Court, Mandi, District Mandi, HP in Sessions Trial No. 28 of 2010 is set aside. The accused is convicted for offences of punishable under Sections 18 and 20 of the Act. Accused be produced to be heard on quantum of sentence on 7.7.2016. Bail bonds of accused are cancelled.
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19. Registry is directed to prepare and send the production warrant to the quarter concerned.
(Rajiv Sharma) Judge (Vivek Singh Thakur) Judge July 1, 2016 (vikrant) ::: Downloaded on - 15/04/2017 20:44:23 :::HCHP