Himachal Pradesh High Court
Lodged In District Jail Chamba vs State Of Goa on 1 August, 2022
Bench: Sabina, Satyen Vaidya
Reportable/Non-reportable
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE DAY OF 1st AUGUST, 2022
.
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL APPEAL No. 427 of 2019
Between:-
JHALLO RAM, SON OF SH. TIKHNA,
RESIDENT OF VILLAGE SHERU, P.O.
TAPPAR, TEHSIL BAROLI, P.S.
BANNI, DISTRICT
r KATHUNA,
JAMMU AND KASHMIR, PRESENTLY
LODGED IN DISTRICT JAIL CHAMBA
AS CONVICT AGE 50 YEARS.
....APPELLANT
(BY SH. N. K. THAKUR, SR. ADVOCATE WITH MR.
DIVYA RAJ SINGH, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH.
.... RESPONDENT
(SH. KAMAL KANT, DEPUTY ADVOCATE GENERAL)
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Reserved on: 28.7.2022
Date of decision: 1.8.2022.
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This appeal coming on for hearing this day, Hon'ble
Mr. Justice Satyen Vaidya, delivered the following:
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JUDGMENT
By way of instant appeal, appellant has assailed .
judgment and sentence order dated 5.7.2019, passed by the learned Special Judge, Chamba Division Chamba, H.P. in Sessions Trial No. 77 of 2018, whereby appellant has been convicted under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and has been sentenced to undergo rigorous imprisonment for a period of twelve years and to pay fine of Rs. 1,20,000/-. In default of payment of fine, to further undergo simple imprisonment for a term of one year.
2. The prosecution case in brief is that on 25.8.2018, police party comprising of HC Gias Lal PW-4, HC Ramesh Kumar PW-1, HC Dinesh Kumar PW-8, Constable Hem Raj PW-
2 and Constable Vinod Kumar PW-5 were on routine patrol duty near Koti Bridge within jurisdiction of Police Station, Sadar Chamba. Appellant was apprehended with a bag on his back. On noticing the police, appellant became perplexed. On suspicion, the bag carried by appellant was checked. 5 kg 30 grams of charas was recovered therefrom. The recovered charas was repacked in the same bag and thereafter placed in a cloth parcel, sealed with six seals of impression 'SB'. Relevant ::: Downloaded on - 02/08/2022 20:02:37 :::CIS -3- columns of NCB forms PW-4/C were filled. Seal impressions were taken on the NCB forms. Specimen seal impression Ext.
.
PW-1/A was preserved. Recovery and seizure memo Ext. PW-
1/B was prepared.
3. Rukka Ext. PW-2/A was sent to Police Station through Constable Hem Raj PW-2. FIR Ext. PW-9/K was accordingly registered. The further investigation was carried.
The appellant was formally arrested and arrest memo Ext. PW-
4/A was prepared.
4. On completion of spot investigation, the police party returned to the Police Station. The case property was produced before Inspector/SHO Prashant Singh Thakur PW-13, who re-
sealed the parcel by affixing four seals of impression 'SC'. The relevant columns of NCB forms were filled. The case property was deposited with MHC of the Police Station, who incorporated necessary entries in Malkhana Register.
5. On 26.8.2018, PW-14 HC Santosh Kumar moved an application Ext. PW-14/A before learned JMFC, Chamba for proceedings under Section 52A of the Act. Two samples of 26 grams each were drawn and were separately sealed in cloth parcel. Five seals each with impression 'JM' were affixed. The remaining bulk was separately sealed.
::: Downloaded on - 02/08/2022 20:02:37 :::CIS -4-6. One of the samples drawn by learned JMFC Chamba was sent to SFSL, Junga on 28.8.2018 for chemical .
examination. The report Ext. 'PX' was received from SFSL, Junga according to which, the sample was confirmed to be the Charas. Special report under Section 57 Ext. PW-7/C was prepared on 27.8.2018 and sent to Additional Superintendent of Police, Chamba through Constable Surinder Kumar PW-12.
7. The case property was destroyed on 5.11.2018 by a committee, headed by Superintendent of Police, Chamba and certificate Ext. PW-9/C was issued in that behalf.
8. On completion of investigation, challan was prepared and presented before the Court. Appellant was tried in Sessions Trial No. 77 of 2018 and was convicted and sentenced, as noticed above.
9. We have heard learned counsel for the parties and have also gone through the record carefully.
10. The prosecution examined as many as 14 witnesses.
PW-1 HC Ramesh Kumar, PW-2 Constable Hem Raj, PW-4 HC Gais Lal, PW-5 Constable Vinod Kumar, PW-8 HC Dinesh Kumar were examined as sport witnesses. PW-6 HHC Ajay Kumar was a witness to re-sealing effected by Inspector/SHO Prashant Singh vide memo Ext. PW-6/B. PW-7 HC Sanjeev ::: Downloaded on - 02/08/2022 20:02:37 :::CIS -5- Kumar proved receipt of special report Ext. PW-7/C by Additional Superintendent of Police, Chamba, as also the .
relevant entries in the extract of register Ext. PW-7/B. PW-9 proved the safe custody of the contraband in Police Station, Sadar Chamba. PW-10 proved the photographs Ext. PW-10/A and Ext. PW-10/B, as also the preparation of CD Ext. PW-
10/C. PW-11 photographer Sher Khan proved photographs Ext. PW-1/C to Ext. PW-1/E and PW-5/A. He has also proved photographs Ext. PW-11/A to Ext. PW-11/H. PW-14 HC Santosh Kumar was witness to the proceedings under Section 52A undertaken before learned JMFC, Chamba.
11. On conclusion of prosecution evidence, the appellant was examined under Section 313 Cr.P.C. No defence evidence was led by the appellant.
12. It has been contended on behalf of the appellant that the sample examined at SFSL Junga weighed only 24.40 grams and there was no evidence on record to prove that the sample so examined in the Laboratory was representative of the entire bulk, recovered from the appellant.
13. Recovery and seizure memo Ext. PW-1/B reveals that the substance recovered from the bag carried by appellant was in the shape of sticks. The order Ext. PW-14/E, passed by ::: Downloaded on - 02/08/2022 20:02:37 :::CIS -6- the learned JMFC, Chamba on 26.8.2018 also described the material as "black hard coloured substance in the shape of .
sticks which had been rolled up together". Photographs Ext.
PW-11/E clearly reveals that the substance was in multiple masses in the shape of sticks/wicks. Photographs Ext. PW-
11/E as per the statement of PW-14 HC Santosh Kumar was clicked in presence of JMFC, Chamba.
14. Thus, it is quite evident from the recovery and seizure memo Ext. PW-7/D, order Ext. PW-14/E passed by learned JMFC and also the photographs Ext. PW-11/E that the substance found from the possession of appellant was not a single mass which was in the shape of sticks and wicks. The nature of substance was hard. Thus, the evidence on record goes to show that the police had seized plurality of masses from possession of the appellant. The spot witnesses have also described the recovered substance in the shape of sticks.
15. Section 52A, sub-Section (2) of the Act reads as under:
"(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 ::: Downloaded on - 02/08/2022 20:02:37 :::CIS -7- 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".
16. 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, ::: Downloaded on - 02/08/2022 20:02:37 :::CIS -8- 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.
17. The statement of PW-14 reveals that two samples of 26 grams each were drawn by learned JMFC, Chamba. The witness has not stated anything about the mode and manner in which the samples were drawn. Learned JMFC, Chamba has not been examined as witness. No other witness has stated on record regarding the mode and manner of drawl of sample. The order Ext. PW-14/E passed by learned JMFC, Chamba also mentions as under:-
"out of such cannabis two samples of 26 grams each taken out and placed on two separate pieces of white paper, which were then rolled up and placed inside two separate cloth parcels, which were then sewed up and sealed with five cut seals each of impression 'JM' Chamba".::: Downloaded on - 02/08/2022 20:02:37 :::CIS -9-
As per Section 52A(2) of the Act, the Officer Incharge of Police Station is required to seek permission of Magistrate to .
draw representative samples. The order passed by learned JMFC Ext. PW-14/E does not reveal that the proceedings had been conducted in accordance with law. The evidence shows that the samples were drawn by learned JMFC, Chamba himself.
18. There is no material on record to show or even suggest that the samples drawn were representative samples.
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.
19. There is nothing in the prosecution evidence that any specific procedure was adopted for drawing a representative sample. 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 5 k.g. 30 grams of substance, failing which, it can be a case of recovery of only 26 grams of charas or at the most 52 grams of charas by ::: Downloaded on - 02/08/2022 20:02:37 :::CIS -10- including weight of second sample having entirely different legal consequences.
.
20. 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 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 ::: Downloaded on - 02/08/2022 20:02:37 :::CIS -11- 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 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 ::: Downloaded on - 02/08/2022 20:02:37 :::CIS -12- 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.
21. 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.
22. 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 ::: Downloaded on - 02/08/2022 20:02:37 :::CIS -13- 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 affirmed by Hon'ble Supreme Court, however, reversing such findings.
23. 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 ::: Downloaded on - 02/08/2022 20:02:37 :::CIS -14- 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 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 ::: Downloaded on - 02/08/2022 20:02:37 :::CIS -15- 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.
24. 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 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."
25. 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 ::: Downloaded on - 02/08/2022 20:02:37 :::CIS -16- 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 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."
26. Thus, from the entirety of evidence available on record, we are convinced that the sample of 26 grams examined by SFSL, Junga was not representative of entire bulk of ::: Downloaded on - 02/08/2022 20:02:37 :::CIS -17- substance and hence, the appellant cannot be held to have been found in conscious possession of 5 k.g. 30 grams of .
charas. The appellant can only be held to be in possession of 26 grams or at the most 52 grams of charas by including the weight of other sample, which as per Act is small quantity.
27. 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 impugned judgment and sentence order passed by the learned trial Court is accordingly modified.
28. The appellant was arrested on 25.8.2018. 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.
29. 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 (Judiial) of this ::: Downloaded on - 02/08/2022 20:02:37 :::CIS -18- 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.
30. The appeal is accordingly disposed of. Records be sent back. Pending applications, if any, also stand disposed of.
r to (Sabina)
Judge
(Satyen Vaidya)
1st August, 2022 Judge
(kck)
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