Himachal Pradesh High Court
About 38 Years vs Ncb on 13 September, 2022
Bench: Sabina, Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 13th DAY OF SEPTEMBER, 2022
.
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SUSHIL KUKREJA
CRIMINAL APPEAL No.327 of 2019
RESERVED ON:12th SEPTEMBER, 2022
PRONOUNCED ON: 13th DAY OF SEPTEMBER, 2022
Between:- r
PIYAR DEEN, SON OF SH. LATIF
MOHAMMAD, RESIDENT OF
VILLAGE KALUNDA, POST
OFFICE GANED, TEHSIL
CHAURAH, DISTRICT CHAMBA,
H.P., AT PRESENT CONVICT,
LODGED IN DISTRICT-CUM-
OPEN AIR JAIL, CHAMBA,
DISTRICT CHAMBA, H.P. AGED
ABOUT 38 YEARS. ....APPELLANT
(BY MR. MALAY KAUSHAL,
ADVOCATE AS LEGAL AID
COUNSEL)
AND
STATE OF HIMACHAL PRADESH ....RESPONDENT
(BY MR. KUNAL THAKUR,
DEPUTY ADVOCATE GENERAL)
____________________________________________________
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2
This Criminal Appeal coming on for
pronouncement this day, Hon'ble Ms. Justice Sabina,
delivered the following:
.
JUDGMENT
Appellant has filed the appeal challenging the judgment/order of sentence dated 02.04.2019/08.04.2019, whereby he has been convicted and sentenced as under:-
Section Sentence imposed on the
convict
Under Section 20 (b)(ii)(C) : Rigorous imprisonment for a
of Narcotic Drugs and period of ten years and to
Psychotropic Substances pay a fine of Rs.1,00,000/-
Act, 1985. (Rupees One lac only). In
default of payment of fine,
the convict shall
further undergo rigorous
imprisonment for a period of
six months.
2. Prosecution story, in brief, is that on 22.11.2017, ASI Satpal alongwith other police officials were travelling from Shikari Mod to Ganed. At about 03.30 p.m, the vehicle was stopped by the officials to answer the call of nature. SI Satpal noticed that a person was coming on foot, carrying a bag in his right hand and was going towards Tissa. On seeing the police party, the said person got perplexed and turned back and started walking ::: Downloaded on - 13/09/2022 20:04:18 :::CIS 3 quickly. The said person was apprehended by the police officials and he disclosed his name as Piyar Deen. Since it was a secluded place, no independent witness was present at the spot.
.
Consequently, the bag carried by the appellant was searched and from the said bag charas in the shape of sticks was recovered.
The contraband on weighment, came to 1.120 kilograms. The orange carry bag containing charas was kept in the blue carry bag and was made into a cloth sealed parcel with seal bearing impression 'TD'. NCB Form in triplicate was prepared. Sample seal was prepared and was affixed on NCB Form. Seal after use was handed over to ASI Satpal (II). Rukka was sent to the Police Station, Tissa, through Constable Hitesh for registration of FIR and on the basis of same, formal F.I.R. No.124/17, dated 22.11.2017, under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the "Act" in short), was registered at Police Station Tissa, District Chamba, H.P. The site plan was prepared and photographs at the spot were clicked by SPO Varinder Singh (PW-3). Appellant was arrested and his personal search memo was prepared. Appellant was got medically examined. Appellant was then produced before Station House Officer Varinder Singh in the Police Station. SHO Varinder Singh (PW-14) after verifying the parcel, resealed the same with seal bearing impression 'TE'.
::: Downloaded on - 13/09/2022 20:04:18 :::CIS 43. On 23.11.2017, an application was moved for proceedings under Section 52-A of the Act before the Magistrate.
The Magistrate issued the Certificate Ext.PW-18/D and passed .
the order Ext.PW-18/C. The Magistrate took out two samples of charas of 26 grams each and sealed the case property with seal bearing impression 'JM Chamba'. The case property was handed over to ASI Satpal.
4. One sample was sent to the Forensic Science Laboratory for examination and as per report Ext.PX the sample was opined to be of "charas".
5. After completion of investigation and necessary formalities, Challan was presented against the appellant. Charge was framed against the appellant under Section 20(b)(ii)(C) of the Act.
6. Appellant did not plead guilty to the charge framed against him and claimed trial.
7. Prosecution examined 18 witnesses, in order to prove its case, during trial. Appellant when examined under Section 313 of the Code of Criminal Procedure, prayed that he was innocent and a false case had been registered against him.
8. Appellant did not examine any witness in his defence.
9. Mr. Malay Kaushal, learned Advocate as Legal Aid Counsel for the appellant, has submitted that the sample ::: Downloaded on - 13/09/2022 20:04:18 :::CIS 5 examined by the Forensic Science Laboratory weighed 22.145 grams and there was no evidence on record to prove that the sample, which was examined in the laboratory, was .
representative sample drawn out of the recovered contraband from the appellant.
10. Mr. Kunal Thakur, learned Deputy Advocate General, on the other hand, has opposed the appeal and has submitted that the prosecution had been successful in proving its case as the prosecution witnesses have duly supported the prosecution case.
11. As per the prosecution story, 1.120 kilograms of charas was recovered from the bag carried by the appellant. As per SI Satpal, PW-18, recovered contraband was in the shape of sticks. The testimony of PW-18 in this regard is corroborated by PW-1 ASI Satpal, PW-2 Constable Hitesh Nath and PW-3 SPO Varinder Singh.
12. Ex.PW-18/C is the order passed by the Magistrate dated 23.11.2017. A perusal of the said order reveals that the parcel containing contraband had been produced before him on the said date with six seals impressions of seal 'TD' and 4 seal impressions of seal 'TE'. The parcel weighed 1.212 grams.
When the parcel was opened, it contained dark coloured substance in the shape of sticks. Out of the said contraband, two ::: Downloaded on - 13/09/2022 20:04:18 :::CIS 6 samples of 26 grams each were separated and made into two separate cloth parcels and the remaining contraband had been put into the opened parcel after replacing the contraband in the .
carry bag. The resealed parcel alongwith sample parcels were handed over to ASI Satpal.
13. Thus, as per the evidence on record, the seized contraband was in the shape of sticks. Two samples, weighing 26 grams each, were drawn by the Magistrate, Chamba. PW-18 SI Satpal has not deposed anything about the mode and manner, in which the samples were drawn from the contraband. Magistrate Ekansh Kapil, who had drawn the samples, has not been examined as a witness during trial. However, the order passed by the Magistrate Ex.PW-18/C has been carefully perused. A perusal of the said order also does not show that while drawing the samples the recovered contraband was made into a homogeneous mixture and thereafter representative samples were drawn. The recovered contraband was in the shape of sticks and in such a situation it was incumbent upon the prosecution to establish that the representative samples had been drawn out of the entire recovered contraband. There is nothing on record to establish that any specific procedure was adopted for drawing a representative sample. In this situation the prosecution story becomes doubtful.
::: Downloaded on - 13/09/2022 20:04:18 :::CIS 714. Ext.PX is the report of the Forensic Science Laboratory. A perusal of the same reveals that one sealed cloth parcel was received and on opening the said parcel, it was found .
that the substance was in the form of sticks and the net weight of the substance was 22.145 grams. After examination, it was opined that the exhibit was extract of cannabis and sample of charas.
15. Since in the present case there is no evidence on record to establish that representative samples, out of the entire recovered contraband, had been drawn, hence, it can be said to be a case of recovery of only 22.145 grams of charas.
16. In Khek Ram Vs NCB, Criminal Appeal No. 450 of 2016 decided on 29.12.2017, Division Bench of this High court held as under:
"78. Additionally and more importantly, we notice that the entire bulk of the alleged contraband was not sent for analysis and only four samples of 25 grams each were, in fact, sent for analysis. Thus, taking the prosecution case at best what is proved on record is the recovery of only 100 grams of charas from the possession of the 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 ::: Downloaded on - 13/09/2022 20:04:18 :::CIS 8 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 affirmed by Hon'ble Supreme Court, however, reversing such findings."
17. In State Vs Naresh Kumar, Criminal Appeal No. 782 of 2008 decided on 28.6.2019, Division Bench of this High court held as under:
"23. As quantum of recovery is concerned, as per prosecution case, 1 Kg. 500 grams charas was recovered from the respondent and after taking out two samples of 25 grams each, the remaining contraband was sealed in parcel and samples were also sealed in two different parcels. Bulk of charas claimed to be recovered from the respondent is Ext.P2 but during investigation and thereafter also, only one sample of 25 grams of charas was sent to ::: Downloaded on - 13/09/2022 20:04:18 :::CIS 9 CFSL Chandigarh for chemical analysis and as per chemical analyst report Ext. PX the sample was found to be of charas.
.
24. As per ratio laid down by the Apex Court in Gaunter Edwin Kircher vs. State of Goa, reported in (1993)3 SCC 145 the amount of contraband, recovered from the respondent, cannot be held more than that which was sent to the Chemical Analyst and was affirmed by the Forensic Science Laboratory as a contraband. The failure to send the entire mass for chemical analysis would result to draw inference that said contraband has not been analyzed and identified by CFSL as the charas.
25. Learned Single Judge of this Court in Dhan Bahadur vs. State of H.P. reported in 2009(2) Shim.L.C. 203, after relying upon the judgment in Gaunter Edwin Kircher's case supra, has held that only analyzed quantity of contraband can be said to have been recovered from the respondent. Applying the ratio of law laid down by the Apex Court and followed by learned Single Judge of this Court, we find that in the present case quantity of recovered contraband is to be taken as 25 grams only and 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."
::: Downloaded on - 13/09/2022 20:04:18 :::CIS 1018. In State of HP Vs Sultan Singh and Others Criminal Appeal No. 324 of 2008, decided on 22.4.2016, Division Bench of .
this High court held as under:
"16. Charas was recovered from three different packets. PW-8 Constable Bhupinder Singh has categorically admitted in his cross-examination that IO did not mix up contents of the packets Ext. P2 to P4. PW-10 ASI Ghanshayam himself has admitted in his cross-examination that he did not mix up the contents of three polythene packets. IO should not have continued with the preparing of documents till the police official, who was sent to get independent witnesses, came back. IO should have made entire contraband homogenous for the purpose of chemical examination."
19. In State of Himachal Pradesh Vs Sohan Singh, Criminal Appeal No. 259 of 2009 decided, on 23.12.2015, Division Bench of this High court held as under:
"16. We have not understood why IO has sent PW-2 Hitender Kumar to an area which was not thickly populated instead of sending towards an area which was thickly populated to call independent witnesses. Case of the prosecution is that 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 ::: Downloaded on - 13/09/2022 20:04:18 :::CIS 11 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."
20. Thus, from the evidence available on record, we are of the opinion that the sample weighing 22.145 gram of charas examined by the Forensic Science Laboratory was not the representative sample of the entire bulk and therefore appellant cannot be held to have been found in illegal conscious possession of 1.120 kilograms of charas and he can be held to be in possession of 22.145 gram of charas or at the most 52 gram of charas by including the weight of other samples, which, as per the Act, would fall within the definition of small quantity.
::: Downloaded on - 13/09/2022 20:04:18 :::CIS 1221. Accordingly, 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 and is sentenced to .
undergo rigorous imprisonment for one year. The sentence qua fine is set aside. The impugned judgment of conviction and order of sentence passed by the learned trial Court is accordingly modified.
22. The appellant was arrested on 22.11.2017. He remained in judicial custody till the conclusion of trial and thereafter is undergoing sentence. Since the appellant has already undergone much more sentence than could be inflicted upon him, the appellant is ordered to be released immediately, if not required in any other case. The Registry is directed to prepare the release warrant forthwith.
23. In view of the provisions of Section 437 of Code of Criminal Procedure, 1973, appellant is directed to furnish his personal bond in the sum of Rs. 25,000/- with one surety in the like amount before the learned Registrar (Judicial) of this Court, which shall be effective for a period of six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court.
::: Downloaded on - 13/09/2022 20:04:18 :::CIS 1324. The appeal is accordingly disposed of. Records be sent back. Pending application(s), if any, shall also stand disposed of.
.
( Sabina )
Judge
September 13, 2022
(Yashwant)
r to ( Sushil Kukreja )
Judge
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