Himachal Pradesh High Court
Ramesh Kumar vs State Of Goa on 11 July, 2022
Bench: Sabina, Satyen Vaidya
Reportable/Non-reportable
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE DAY OF 11th JULY, 2022
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL APPEAL No. 280 of 2020
Between:-
1. RAMESH KUMAR, SON OF
SHRI RAJESH KUMAR,
AGED ABOUT 37 TEARSM
VPO BAGLIM ODDA NO.9
ANCHAL BAGMATI NEPAL A/P
LABOUR KOTKHAI BAZAAR,
DISTRICT SHIMLA, H.P.
PRESENTLY LODGED AS CONVICT
IN MODEL CENTRAL JAIL KANDA,
DISTRICT SHIMLA, H.P.
2. MAN BAHDUR SON OF
SHRI BHADRA BAHADUR,
AGED ABOUT 55 YEARS,
RESIDENT OF VPO GHETMA ODDA
NO.8 DISTRICT RUKKAM, ANCHAL
RAVATI, NEPAL A/P NALTINAL
P.O. NOGLI, TEHSIL RAMPUR,
DISTRICT SHIMLA, PRESENTLY
LODGED AS CONVICT
IN MODEL CENTRAL JAIL KANDA,
DISTRICT SHIMLA, H.P.
....APPELLANTS
(BY SH. MALAY KAUSHAL, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH.
.... RESPONDENT
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(SH. KAMAL KANT, DEPUTY ADVOCATE GENERAL)
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.
This appeal coming on for hearing this day, Hon'ble
Mr. Justice Satyen Vaidya, delivered the following:
JUDGMENT
By way of instant appeal, appellants have assailed judgment and sentence order dated 17.3.2020, passed by the learned Special Judge-II, Kinnaur at Rampur Bushehar, H.P. in Case No. 17 of 2018, whereby appellants have been convicted and sentenced under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) as under:
Sr. Name of Sentence of Fine In Default of No. the imprisonment. payment of appellant fine.
1. Ramesh To undergo rigorous Rs. In default of Kumar imprisonment for 10 1,00,000/- payment of years for commission fine, to of offence punishable undergo simple under Section 20 of imprisonment the NDPS Act. for six months.
2. Man To undergo rigorous Rs. In default of Bahadur imprisonment for 10 1,00,000/- payment of years for commission fine, to of offence under undergo simple Section 29 of the imprisonment NDPS Act for six months.
2. The prosecution case in brief is that on 8.8.2018, PW-3 SI Ranjeet Singh, PW-8 ASI Man Dev, PW-4 Constable Sumit Thakur along with ASI Yoginder Singh and HHG Tilak ::: Downloaded on - 12/07/2022 20:02:30 :::CIS -3- Raj were on patrol duty toward Nirmand Bazaar, Awera etc. At about 5.45 a.m., the police party consisting of aforesaid police .
officials found appellants approaching Deodhank. On noticing the police party, both of them got perplexed and tried to escape.
Appellant Ramesh Kumar threw a bag held by him in his hand, on noticing the police officials. The bag was checked and 4.210 kg charas was recovered. Recovery and seizure proceedings were conducted vide recovery and seizure memo Ext. PW-3/A. Part of NCB Form Ext. PW-3/B was filled up on spot. Rukka Ext. PW-3/D was prepared and sent to Police Station for registration of FIR. FIR Ext. PW-7/A was accordingly registered. The appellants were formally arrested. Case property and appellants were taken to Police Station. Case property was deposited in "Malkhana".
3. On 10.8.2018, PW-3 SI Ranjeet Singh along with PW-7 HC Vikram Singh No. 61 presented an application before learned JMFC, Anni for drawing proceedings under Section 52A of the Act. Order Ext. PW-3/G came to be passed by learned JMFC, Anni recording that two representative samples of 25 grams each were drawn in his presence from the bulk charas and were sealed in two separate small cloth parcels bearing four seals each with seal impression 'O'. The remaining charas ::: Downloaded on - 12/07/2022 20:02:30 :::CIS -4- was also re-sealed with four seals bearing seal impression 'O'.
The inventory was thus certified.
.
4. One of the sample drawn during proceedings under Section 52A of the Act was sent to SFSL, Junga and was found to be charas vide examination report Ext. PX. The bulk weighing 4.166 kg was destroyed on 28.5.2019 and certificate Ext. PY was issued in this behalf.
5. On r completion of investigation, challan was prepared and presented before the Court and the appellants were tried in Case No. 17 of 2018 by the learned Special Judge-
II, Kinnaur at Rampur Bushehar, H.P. and sentenced, as noticed above.
6. We have heard learned counsel for the parties and have also gone through the record carefully.
7. Prosecution examined total eight witnesses. PW-3 SI Ranjeet Singh, PW-8 ASI Man Dev and PW-4 Constable Sumit Thakur were examined as spot witnesses. PW-1 Constable Dalip Singh No. 424 was examined to prove the safe transit and custody of the sample in sealed parcel from SFSL Junga to Police Station Nirmand on 16.9.2018. PW-2 was examined to prove the receipt of special report sent by PW-3 to Sub Divisional Police Officer, Anni on 8.8.2018. PW-5 Ram ::: Downloaded on - 12/07/2022 20:02:30 :::CIS -5- Singh No. 666 proved the safe custody and transit of sample from Police Station Nirmand to SFSL, Junga on 13.8.2018.
.
PW-6 LC Bhishma No. 91 proved Daily Diary Report Ext. PW-
6/A to Ext. PW-6/C. PW-7 HC Vikram Singh No. 61 proved the safe custody and transit etc. of the case property and sample in the Malkhana and also proved the extract of Malkhana Register Ext. PW-7/D. This witness also proved photograph Ext. PW-
7/F-1 to Ext. PW-7/F-3 clicked during the proceedings conducted under Section 52A of the Act.
8. Mr. Malay Kaushal, learned counsel representing the appellants has raised an argument that the sample sent to SFSL, Junga was not the representative samples. He contended that there is no evidence on record to suggest that the sample so sent to SFSL, Junga was representative of entire bulk and hence the appellants cannot be stated to be in possession of the entire bulk of charas.
9. The recovery and seizure memo Ext. PW-3/A reveals that black coloured chocolate shape substance was recovered.
The substance was found in multiple of masses. On counting sixteen full pieces and one half piece was found. The spot witnesses PW-3 SI Ranjeet Singh, PW-4 Constable Sumit Thakur No. 648 and PW-8 ASI Man Dev have deposed in unison ::: Downloaded on - 12/07/2022 20:02:30 :::CIS -6- that the substance recovered from the appellants was in sixteen full pieces and one half piece. The physical features of .
substance recovered is also noticeable from photographs Ext.
PW-7/F-2 and Ext. PW-7/F-3. Learned JMFC Anni has also noticed in his order Ext. PW-3/G that the carry bag was found to contain flat chocolate shaped rectangular pieces of charas/cannabis each separately wrapped in transparent polythene. The charas/cannabis pieces were counted and were found to be sixteen full and one half piece. On weighing the entire substance alongwith the transparent polythene wrappers, the total weight was found to be 4 kg 216 grams.
10. Thus, it is quite evident from the statements of spot witnesses, recovery and seizure memo Ext. PW-3/A, photographs Ext. PW-7/F-2 and Ext. PW-7/F-3 as also the contents of order Ext. PW-3/G, recorded by the learned JMFC, Anni that the substance found from the possession of the appellants was not a single mass. The evidence on record clearly reveals that police had seized the plurality of masses from the possession of the appellants.
11. Section 52A, sub-Section (2) of the Act reads as under:
"(2) Where any 4 [narcotic drugs, psychotropic substances, controlled substances or conveyances] ::: Downloaded on - 12/07/2022 20:02:30 :::CIS -7- has been seized and forwarded to the officer-in-
charge of the nearest police station or to the officer .
empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such 4 [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the 4 [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the 4 [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of--
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such magistrate, photographs of 5 [such drugs, substances or conveyances] and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn".
::: Downloaded on - 12/07/2022 20:02:30 :::CIS -8-12. As per requirement of above noted provision of the Act, the Officer incharge of Police station is required to prepare .
an inventory of the Narcotic Drugs Psychotropic Substance seized, containing details relating to description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars, as may be considered relevant, by the officer concerned and is further required to make an application to the Magistrate for the purposes specified in sub-section (2) of Section 52A of the Act, including permission 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.
13. The case of the prosecution is that on 10.8.2018, the recovered and seized substance was presented before the learned JMFC, Anni with an application for drawing proceedings under Section 52A of the Act. PW-3 SI/SHO Ranjeet Singh and PW-7 HC Vikram Singh No. 61 were present before the learned JMFC, Anni at the time of drawing of proceedings under Section 52A of the Act. PW-3 in his deposition before the learned trial Court has not uttered even a single word with respect to mode and manner in which the sample was drawn. Similarly, PW-7 has also remained silent ::: Downloaded on - 12/07/2022 20:02:30 :::CIS -9- on this aspect of the matter. Though, in order Ext. PW-3/G, learned JMFC, Anni has recorded that two representative .
samples of 25 grams each were taken in his presence from the aforesaid bulk charas, but again nothing has been stated as to how the sample was made representative. On weighing scale shows in photograph Ext. PW-7/F-1, the weight of the piece of substance is recorded as 25 grams on the display screen of weighing scale and the piece of substance shown does not appear to be a homogeneous sample of entire bulk.
Photographs PW-7/F-2 and PW-7/F-3 clearly reveal that the chocolate shape of other pieces of recovered substance was not disturbed and were lying wrapped in polythene. The SFSL report Ext. PX reveals that it had received a sample weighing 33.19 grams including weight of cloth parcel. However, the total weight of sample without cloth parcel and polythene wrapper was 25.746 grams. The sample received in SFSL, Junga as per Ext. PX, was found in the form of polythene wrapped and unwrapped irregular shaped masses. No such sample is visible in photographs clicked at the time of drawing proceedings under Section 52A of the Act.
14. There is no material on record to show or even suggest that the samples drawn were representative samples.
::: Downloaded on - 12/07/2022 20:02:30 :::CIS -10-When the substance included plurality of mass, it was incumbent upon the prosecution to prove that the samples .
were representative of entire seized substance. The representative samples could be said to be available only when the seized substance was made homogeneous.
15. There is nothing in the prosecution evidence that any specific procedure was adopted for drawing a representative sample.
r This creates doubt about the very legitimacy of the case of the prosecution. To have credence, the sample had to be the representative samples of entire 4.166 k.g. of substance, failing which, it can be a case of recovery of only 25 grams of charas or at the most 50 grams of charas by including weight of second sample having entirely different legal consequences.
16. 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 ::: Downloaded on - 12/07/2022 20:02:30 :::CIS -11- 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 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.::: Downloaded on - 12/07/2022 20:02:30 :::CIS -12-
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 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.::: Downloaded on - 12/07/2022 20:02:30 :::CIS -13-
17. 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.
18. In Khek Ram Vs NVB Criminal Appeal No. 450 of 2016 decided on 29.12.2017, paras 78 to 80 read as under:
"78. Additionally and more importantly, we notice that the entire bulk of the alleged contraband was not sent for analysis and only four samples of 25 grams each were, in fact, sent for analysis. Thus, taking the prosecution case at best what is proved on record is the recovery of only 100 grams of charas from the possession of the accused. Admittedly, the alleged contraband was in different shapes and sizes in the form of biscuits and flat pieces.
79. Therefore, in this background, the question arise as to whether the entire bulk of 19.780 Kgs as was recovered, in absence of there being chemical examination of whole quantity, can be held to be charas.
80. This question need not detain us any longer in view of the authoritative pronouncement by the Hon'ble Supreme Court in Gaunter Edwin Kircher vs. State of Goa (1993) 3 SCC 145, wherein the Court was dealing with the alleged recovery of two ::: Downloaded on - 12/07/2022 20:02:30 :::CIS -14- 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.
19. 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 ::: Downloaded on - 12/07/2022 20:02:30 :::CIS -15- 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 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.
20. 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 ::: Downloaded on - 12/07/2022 20:02:30 :::CIS -16- 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."
21. 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 ::: Downloaded on - 12/07/2022 20:02:30 :::CIS -17- 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."
22. Thus, from the entirety of evidence available on record, we are convinced that the sample of 25 grams examined by SFSL, Junga was not representative of entire bulk of substance and hence, the appellants cannot be held to have been found in conscious possession of 4.166 k.g. of charas.
The appellants can only be held to be in possession of 25 grams or at the most 50 grams of charas by including the weight of other sample, which as per Act is small quantity.
23. Accordingly, appellant Ramesh Kumar is held guilty of offence under Section 20 of the Act for having been found in conscious possession of only small quantity of charas and is sentenced to undergo rigorous imprisonment for one year.
Similarly, appellant Man Bahadur is held guilty of offence ::: Downloaded on - 12/07/2022 20:02:30 :::CIS -18- under Section 29 of the Act in respect of only small quantity of charas. Accordingly, the impugned judgment and sentence .
order passed by the learned trial Court is modified.
24. The appellants were arrested on 8.8.2018. They remained in custody throughout the period of investigation and were under trial thereafter till conclusion of the trial.
Appellants are further undergoing the sentence after passing of impugned judgment and sentence order. 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. The Registry is directed to prepare the release warrants forthwith. Records be sent back. The appeal is accordingly disposed of. Pending applications, if any, also stand disposed of.
(Sabina)
Judge
(Satyen Vaidya)
11th July, 2022 Judge
(kck)
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