Himachal Pradesh High Court
Office Ganota vs State Of Goa on 16 September, 2022
Author: Satyen Vaidya
Bench: Satyen Vaidya
Reportable/Non-reportable
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE DAY OF 16th SEPTEMBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL APPEAL No. 522 of 2008
Between:-
PAPPUDEEN SON OF SHRI
ALAFDEEN, VILLAGE KAMLA, POST
OFFICE GANOTA, POLICE STATION
CHOWARI, TEHSIL BHATTIYAT,
DISTRICT CHAMBA.
....APPELLANT
(BY SH. N. S. CHANDEL, SR. ADVOCATE WITH SH. VINOD
K. GUPTA, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
.... RESPONDENT
(SH. DESH RAJ THAKUR, ADDITIONAL ADVOCATE
GENERAL)
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Reserved on: 12.9.2022.
Date of decision: 16.9.2022.
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This appeal coming on for hearing this day, the
Court delivered the following:
JUDGMENT
By way of instant appeal, appellant has assailed judgment dated 30.8.2008, passed by learned Special Judge, ::: Downloaded on - 16/09/2022 20:03:22 :::CIS -2- Chamba Division, District Chamba, H.P. in Sessions Trial No. 60 of 2007 along with sentence order dated 1.9.2008, whereby .
the appellant has been convicted for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act (for short the Act), and has been sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.
5000/- and in default of payment of fine to undergo simple imprisonment for a period of one month.
2. The prosecution case in nut-shell was that on 23.2.2007, PW-11, SI, Abhay Singh along with PW-1 ASI Ramesh Kumar, PW-2, Constable Suneel Kumar, PW-3 SPO Darshan Singh, and PW-7 Salim Khan were present at Madhuwar in connection with patrolling duty and traffic checking. At about 6.10 P.M., a Maruti Van No. HP 57-1243 was stopped for checking. Appellant was driving the said vehicle and there was none else occupying the same. Charas was recovered, wrapped in white coloured polythene and kept in the dashboard of the vehicle. The charas was weighed and found to be 900 grams. Two samples of 25 grams each were drawn. The samples and also the bulk of charas were placed in separate cloth parcels and sealed with seal impressions 'T' & 'S'. Recovery and seizure memo Ext. PW-1/A was prepared.
::: Downloaded on - 16/09/2022 20:03:22 :::CIS -3-Facsimile of sample seals 'T' & 'S' were preserved as Ext. PW-
1/B. Relevant columns of NCB form Ext. PW-11/A were filled .
by PW-11 SI Abhay Singh. Rukka Ext. PW-11/B was prepared and was sent to Police Station, Tissa for registration of case through PW-3, SPO Darshan Singh. A copy of Rukka was handed over to PW-2, Constable Suneel Kumar for submission to Superintendent of Police, Chamba. FIR Ext. PW-8/A was registered. Site plan Ext. PW-11/C was prepared. Appellant was formally arrested. The recovered contraband along with appellant was forwarded to the Police Station. SHO Swaru Ram conducted re-sealing proceedings. The contraband along with sample seals was deposited in the Malkhana at Police Station, Tissa. The samples of charas were sent for chemical analysis to SFSL, Junga and as per report Ext. PA, the same was found to be charas. Challan was prepared and presented in the Court.
3. Appellant was charged for commission of offence under Section 20 of the Act. Prosecution examined total 11 witnesses. PW-1, ASI Ramesh Kumar, PW-2, Constable Suneel Kumar, PW-3, SPO Darshan Singh, PW-7 Salim Khan were examined as spot witnesses. PW-11 SI Abhay Singh was examined as spot witness and the Investigating Officer. PW-4, Constable Om Parkash was examined to prove receipt of copy of ::: Downloaded on - 16/09/2022 20:03:22 :::CIS -4- Rukka Ext. PW-4/A and Special Report Ext. PW-4/B in the office of Additional Superintendent of Police Chamba. PW-5, .
Constable Tilak Raj deposed regarding re-sealing process conducted by SHO Swaru Ram. PW-6, Bansi Lal stated that the police had taken from him the weights and scale on 23.2.2007. PW-7 Salim Khan the alleged eye witness had turned hostile and did not support the case of prosecution.
PW-8 HC Charan Singh proved the safe deposit of contraband in the Malkhana. PW-9 Kamlesh Kumar proved the safe transit and custody of the samples of contraband from Police Station to SFSL, Junga. PW-10, Constable Dev Raj was a formal witness and proved daily diary reports 10 and 7, as Ext. PW-10/A and Ext. PW-10/B.
4. Appellant was examined under Section 313 Cr.P.C.
He did not choose to lead the defence evidence. On conclusion of trial, appellant was convicted for the offence under Section 20 of the Act and was sentenced, as noticed above.
5. I have heard learned counsel for the parties and have also gone through the record carefully.
6. Sh. N. S. Chandel, learned Senior Advocate representing the appellant contended that the samples sent for chemical analysis were not representative samples. In absence ::: Downloaded on - 16/09/2022 20:03:22 :::CIS -5- of samples being representative, the entire quantity, allegedly recovered by the police could not be said to be the charas.
.
7. PW-1 ASI Ramesh Kumar and PW-11 SI Abhay Singh categorically stated in their respective examination-in-
chief that the charas recovered from Maruti Van No. HP57-1243 was in the shape of sticks. Neither PW-1 nor PW-11 clarified as to what was the number of the sticks. Thus, as per prosecution case, the contraband recovered from the vehicle, driven by the appellant was not a single mass.
8. Spot witnesses, PW-1, PW-2, PW-3 and PW-11, though stated that two samples of 25 grams each were drawn but none of these witnesses have stated that the entire bulk was made homogeneous and thereafter, the samples were drawn as representative samples. None of the spot witnesses had stated about the mode and manner in which the samples were drawn.
9. In the instant case, the entire bulk was branded as charas on the basis of report Ext. PA, rendered by SFSL, Junga.
The scrutiny of such report reveals that the sample that was examined weighed 23.751 grams. To hold the sample to be representative of entire bulk, it had to be proved by the prosecution that the sample examined in fact was the true ::: Downloaded on - 16/09/2022 20:03:22 :::CIS -6- representative sample of entire bulk. This evidence in my considered view is clearly missing in the instant case.
.
10. 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, ::: Downloaded on - 16/09/2022 20:03:22 :::CIS -7- 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.
(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 ::: Downloaded on - 16/09/2022 20:03:22 :::CIS -8- drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."
.
11. 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 raforesaid provision 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 Section 52A.
12. 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.
::: Downloaded on - 16/09/2022 20:03:22 :::CIS
-9-
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.
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.
::: Downloaded on - 16/09/2022 20:03:22 :::CIS -10-2.6. 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 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 ::: Downloaded on - 16/09/2022 20:03:22 :::CIS -11- 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.
13. 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], following the earlier decision of this Court in Union of India v. Azadi Bachao Andolan [(2004) ::: Downloaded on - 16/09/2022 20:03:22 :::CIS -12- 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."
14. 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 ::: Downloaded on - 16/09/2022 20:03:22 :::CIS -13-
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 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 ::: Downloaded on - 16/09/2022 20:03:22 :::CIS -14- 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 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, ::: Downloaded on - 16/09/2022 20:03:22 :::CIS -15- 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 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 ::: Downloaded on - 16/09/2022 20:03:22 :::CIS -16- 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, r 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
(a) certifying the correctness of the inventory,
(b) certifying photographs of such drugs or substances taken before the Magistrate as true, and ::: Downloaded on - 16/09/2022 20:03:22 :::CIS -17-
(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 - 16/09/2022 20:03:22 :::CIS -18-15. 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 900 Grams of substance, failing which it can be a case of recovery of only 25 gms. of charas or at the most 50 grams 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 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 ::: Downloaded on - 16/09/2022 20:03:22 :::CIS -19- 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. 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 ::: Downloaded on - 16/09/2022 20:03:22 :::CIS -20- 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.
17. The Court considered 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.
::: Downloaded on - 16/09/2022 20:03:22 :::CIS -21-18. In Khek Ram Vs NCB 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 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 ::: Downloaded on - 16/09/2022 20:03:22 :::CIS -22- 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 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.::: Downloaded on - 16/09/2022 20:03:22 :::CIS -23-
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 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 ::: Downloaded on - 16/09/2022 20:03:22 :::CIS -24- 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 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 ::: Downloaded on - 16/09/2022 20:03:22 :::CIS -25- 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, I am not convinced that the sample of 23.751 grams examined at SFSL, Junga was representative of entire bulk of substance and hence the appellant cannot be held to have been found in conscious possession of 900 grams of charas. The appellant can be held to in possession of 25 grams or at the most 50 grams of Charas by including the weight of other sample, which as per NDPS Act is small quantity.
23. Prior to amendment Act 16 of 2014, the punishment involving small quantity of charas under Section 20(b)(ii) (A) was rigorous imprisonment for terms extending up to six months or time extending up to Rs. 10,000/- or with both.
24. Appellant is held guilty of offence under Section 20 of the Act for having been found in conscious possession of only small quantity of charas. The appellant remained in custody w.e.f. 23.2.2007 till 6.3.2007 and thereafter, he was released on bail. The appellant remained on bail during the entire period of ::: Downloaded on - 16/09/2022 20:03:22 :::CIS -26- the trial. His sentence was suspended by this Court vide order dated 3.10.2008. There is no complaint against the appellant .
that he misused the liberty of bail during the trial or after conviction. The present case pertains to the year 2007. A long period has elapsed thereafter. Appellant has already undergone the agony and pain firstly of undergoing the prolonged trial and thereafter the wait for final disposal of his appeal.
25. Keeping in view the entirety of facts and circumstances of the case, appellant is sentenced to imprisonment already undergone. However, the appellant is directed to deposit the fine amount before the learned trial Court within a period of four weeks from today, if not already deposited. The judgment and sentence order passed by learned trial court is accordingly modified.
26. The appeal is accordingly disposed of. Pending applications, if any, also stand disposed of. Records be sent back.
(Satyen Vaidya)
16th September, 2022 Judge
(kck)
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