Himachal Pradesh High Court
Chuni Lal vs State Of Himachal Pradesh on 25 November, 2022
Bench: Sabina, Sushil Kukreja
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA .
Cr. Appeal No.140 of 2021 Reserved on : 22.11.2022 Pronounced on : 25.11.2022 ____________________________________________________________ Chuni Lal ... Appellant.
Vs. State of Himachal Pradesh _____________________________________________________________ Coram:
r ....Respondent
Hon'ble Ms. Justice Sabina, Judge.
Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?
For the appellant : Mr.Jeevesh Sharma, Advocate.
For the respondent : Mr. Ashwani Sharma, Addl.
Advocate General.
________________________________________________________________________________________________________ Sabina, Judge.
Appellant has filed the appeal challenging the judgment/ order dated 03.05.2021/05.05.2021, passed by the Special Judge, Chamba, whereby, he has been convicted and sentenced as under:-
Under Section 20 (b) : Rigorous imprisonment for ten years and to
(ii) (C) of Narcotic pay a fine of Rs. 1,00,000/- (Rs. One lac Drugs and only). In default of payment of fine, he ::: Downloaded on - 25/11/2022 20:32:56 :::CIS 2 Psychotropic shall further undergo rigorous Substances Act, 1985 imprisonment for one year.
.
2. Prosecution story, in brief, is that on 19th November, 2017, HC Som Prakash alongwith HC Prem Lal, Constable Sanjay Kumar, Constable Amar Singh and HHC Bhikho Ram had proceeded at about 05.45 p.m from police post Surgani towards Daru Nalla Bridge, in connection with traffic checking and Nakabandi. At about 7.00 p.m when the police party was present at Daru Nalla, they heard the noise of the foot steps of some person, coming from the side of Surgani.
Then the light of the torch was reflected towards that side. On seeing the light of the torch, that person became perplexed and immediately turned back. The said person was carrying Pithu bag on his back. On suspicion, the said person was apprehended. The person disclosed his name as Chuni Lal. Since the place was a secluded one, no independent witness was available. When the Pithu bag carried by the appellant was checked, it was found that it contained a carry bag with a knot. When the carry bag was opened, it was found that it contained black coloured hard substance in the shape of sticks and stick bundles.
The said substance was found to be cannabis/charas. On weighment, the contraband weighed 1.600 kilogram. The recovered contraband was put in the pithu bag and the same was made into a cloth sealed parcel with seal bearing impression 'S'. NCB form in triplicate was ::: Downloaded on - 25/11/2022 20:32:56 :::CIS 3 prepared. The case property was taken in possession. Ruqa was sent to the Police Station by HC Som Prakash through HHC Bhikho Ram for registration of the F.I.R., and on the basis of the same, formal F.I.R .
No.96 of 2017, dated 19.11.2017, was registered against the appellant at Police Station Kihar, District Chamba, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "Act" in short). Site plan of the spot was prepared.
Appellant was arrested. Appellant as well as the case property was thereafter produced before ASI Pradeep Kumar at about 12.32 a.m on 20th November, 2017. ASI Pradeep Kumar resealed the case property with three seals bearing impression 'Y'. Appellant was produced before the Judicial Magistrate, 1st Class, on 20th November, 2017 alongwith the case property and the Judicial Magistrate passed the order Ex.PW-14/C and issued certificates Ex.PW-14/D and Ex.14/E under Section 52-A of the Act. The Judicial Magistrate 1st Class drew two samples weighing 26 gram each from the recovered contraband.
One sample was sent to Forensic Science Laboratory for examination.
3. After completion of investigation and on receipt of the report of the Chemical Examiner, Challan was presented against the appellant. On 16th August, 2018 charge was framed against the appellant under Section 20 of the Act by the trial Court. Appellant did not plead guilty to the charge framed against him and claimed trial.
::: Downloaded on - 25/11/2022 20:32:56 :::CIS 44. Prosecution examined 15 witnesses in order to prove its case during trial. Appellant when examined under Section 313 of the Code of Criminal Procedure, 1973, prayed that he was innocent and a .
false case has been registered against him.
5. Appellant examined two witnesses in his defence.
6. Learned counsel for the appellant has submitted that the sample examined by the Forensic Science Laboratory weighed 26 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. There were material contradiction in the statements of the prosecution witnesses and the said fact rendered the prosecution story doubtful.
7. Learned counsel has pointed out that as per the prosecution case, contraband was in the sky blue coloured carry bag which had been kept in a grey coloured Pithu bag. However, it has been admitted by PW-14 in his cross-examination that the carry bag produced in the Court was multi coloured and not sky blue.
8. Shri Ashwani Sharma, learned Additional 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.
::: Downloaded on - 25/11/2022 20:32:56 :::CIS 59. As per the prosecution, 1.600 kilogram of charas was recovered from the bag carried by the appellant. In this regard, prosecution has examined PW-2 HC Prem Lal, PW-3 constable Bhikho .
Ram, PW-4 Constable Sanjay Kumar, PW-5 Constable Amar Singh and PW-14 HC Som Prakash. All the said witnesses have deposed with regard to the fact that the appellant was carrying a grey coloured Pithu bag and was apprehended on suspicion. When the Pithu bag carried by the appellant was checked, it contained a blue coloured carry bag and out of the said carry bag the contraband in question was recovered. The case property was produced before the Judicial Magistrate, 1st Class, on 20th November, 2017. It is evident from the order passed by the Magistrate Ex.PW-14/C that when the sealed cloth parcel was opened, it contained a grey coloured cloth pack. Inside the said pack there was a blue coloured cloth carry bag. From the said blue coloured carry bag contraband in the shape of sticks, which had been rolled up together into balls, was recovered. Out of the recovered contraband two samples weighing 26 grams each were drawn by the Magistrate. Magistrate was examined by the appellant as DW-2. In his examination-in-chief, Magistrate has deposed that in the grey coloured cloth pack there was a blue coloured cloth carry bag. Hence, the version of the prosecution witnesses that the contraband so recovered from the blue coloured cloth carry bag, which had been put in a grey ::: Downloaded on - 25/11/2022 20:32:56 :::CIS 6 coloured pithu bag, is duly corroborated by the version given by the Magistrate before whom the case property was produced after the arrest of the appellant. The fact that PW-14 HC Som Parkash in his .
cross-examination has deposed to the effect that Ex.P-2 was a multi coloured carry bag in itself, is not fatal to the prosecution case in the facts and circumstances of the present case.
10. The next question that arises for consideration is with regard to the fact as to whether the prosecution has been successful in establishing that the recovered contraband from the appellant weighed 1.600 kilogram, as deposed by the official witnesses.
11. In order to prove its case, prosecution has examined HC Som Prakash as PW-14, HHC Prem Lal as PW-2, HHC Bhikho Ram as PW-3, Constable Sanjay Kumar as PW-4 and constable Amar Singh as PW-5. All the said witnesses have deposed with regard to the recovery of 1.600 kilogram of charas from the bag carried by the appellant. All the said witnesses have deposed that the recovered contraband was in the shape of 'sticks'.
12. Ex.PW14/C order passed by the Judicial Magistrate, 1st Class, on 20th November, 2017, reveals that the contraband was in the shape of sticks which have been rolled up together into balls.
13. Thus, as per the evidence on record, the seized contraband was in the shape of sticks. Two samples, weighing 26 ::: Downloaded on - 25/11/2022 20:32:56 :::CIS 7 grams each, were drawn by the Chief Judicial Magistrate, Chamba, from the recovered contraband. PW-14 HC Som Prakash has not deposed anything about the mode and manner, in which the samples .
were drawn from the contraband. However, the order passed by the Magistrate Ex.PW-14/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.
14. Ex.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 24.229 grams. After examination, it was opined that the exhibit was extract of cannabis and sample of charas. Thus, the contraband which reached the Forensic Science Laboratory for examination weighed 24.229 grams and was in the shape of sticks.
::: Downloaded on - 25/11/2022 20:32:56 :::CIS 815. 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 26 grams of charas (sample drawn by the Magistrate).
16. In Khekh 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 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 ::: Downloaded on - 25/11/2022 20:32:56 :::CIS 9 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 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 ::: Downloaded on - 25/11/2022 20:32:56 :::CIS 10 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.
18. 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 ::: Downloaded on - 25/11/2022 20:32:56 :::CIS 11 was given option to be searched before a gazetted officer or a Magistrate. He opted to be searched by the police. Consent memo is Ext. PW-1/A. According to the prosecution case, PW-2 .
Hitender Kumar was present on the spot and he was the person who has taken Rukka to Police Station. However, in his cross-examination he has denied that Ext. PW-1/A was prepared in his presence. He has also admitted that Ext.
PW1/E was also not prepared in his presence. Thus, the presence of PW-2 Hitender Kumar at the spot is doubtful. Rukka was prepared at 11.30 pm by IO PW-12 Kishan Chand but was sent at 12.30 pm. According to HHC Padam Singh, samples were not taken homogenously. Few sticks were taken. According to PW12 Kishan Chand from all the four packets, samples were drawn. There is variance in the statements of PW-1 Padam Singh, PW-2 Hitender Kumar and PW-12 Kishan Chand whether sample was prepared homogenously or not entire contraband was required to be mixed homogenously for preparing samples to be sent for chemical examination to SFL."
20. Thus, from the evidence available on record, we are of the opinion that the sample weighing 26 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 1.600 kilograms of charas and he can be held to be in possession of 26 gram of charas or at the most 52 gram of charas by including the weight of other sample, which, as per the Act, would fall within the definition of small quantity.
::: Downloaded on - 25/11/2022 20:32:56 :::CIS 1221. Accordingly, appellant is held guilty of offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, 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 19th November, 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 - 25/11/2022 20:32:56 :::CIS 1324. The appeal is accordingly disposed of. Pending applications, if any, also stand disposed of.
.
(Sabina)
Judge
(Sushil Kukreja)
November 25, 2022(TM) Judge
r to
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