Himachal Pradesh High Court
____________________________________________________ vs State Of Himachal Pradesh on 29 March, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA .
Cr. Appeal No. 130 of 2008
Reserved on: 17.03.2023
Decided on: 29.03.2023
____________________________________________________ Ail Ram ...Appellant Versus State of Himachal Pradesh ...Respondent _____________________________________________________ Coram The Hon'ble Mr. Justice Sushil Kukreja, Judge 1 Whether approved for reporting?
_____________________________________________________ For the appellant: Mr. Ajay Chandel, Advocate.
For the respondent: Mr. B. N. Sharma & Mr. Raj Kumar
Negi, Additional Advocates
General, with Ms. Leena Guleria
and Ms. Avni Kochhar Mehta, Deputy
Advocate General.
Sushil Kukreja, Judge
The instant appeal filed under Section 374 (2) of Code of Criminal Procedure, lays challenge to judgment of conviction and order of sentence dated 24.01.2008, passed by learned Special Judge, Fast Track, Kullu, H.P., in Sessions Trial No.15/07, titled State of Himachal Pradesh Versus Ail Ram, whereby the 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 29/03/2023 20:35:37 :::CIS 2appellant (hereinafter referred to as the accused), was convicted .
and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.30,000/- and in default of payment of fine, he shall undergo simple imprisonment for six months, for the commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as "NDPS Act").
2. The prosecution story, in brief, is that on 22.11.2006, SI Mahesh Kumar alongwith ASI Gian Chand, HC Bhagat Ram and Constable Vikram Singh, laid a naka near new bridge Bajaura-
Gadsa road and at about 1:30 a.m., one person came from Hurla side, having a bag on his left shoulder and on seeing the police, he suddenly tried to run away, but he was apprehended by the police.
On raising suspicion, the police asked his name, who disclosed his name to be Ail Ram.Since, it was a secluded place and night time, no independent witness was found present on the spot, hence, SI Mahesh Kumar sent C. Vikram Singh in search of the independent witnesses from the nearby place, who returned after 10-15 minutes and informed that no independent witness was available, therefore, SI Mahesh Kumar associated ASI Gian Chand and HC Bhagat ::: Downloaded on - 29/03/2023 20:35:37 :::CIS 3 Ram as witnesses in the case. SI Mahesh Kumar gave his .
personal search to the accused in the presence of witnesses and thereafter the bag, being carried by the accused, was searched and during search, one polythene packet, containing a black coloured substance in the shape of sticks was found, which was found to be charas. When the said charas was weighed, the same was found to be 1kg 50 grams and thereafter two samples of charas, 25 grams each were separated from the recovered charas and they were sealed in separate parcels and the remaining charas was put in the same polythene envelope and then in the said bag, which was sealed separately. Thereafter, six seals of seal impression 'T' were affixed on each parcel and sample of seal 'T' was separately taken on a piece of cloth. The relevant columns of NCB-I form in triplicate were filled and seal after use was handed over to ASI Gian Chand and thereafter all the three sealed parcels were taken into possession vide seizure memo, which was signed by the witnesses and the accused. Thereafter, the rukka was prepared and sent the same to Police Station, Kullu, through C. Vikram Singh, for registration of FIR.
::: Downloaded on - 29/03/2023 20:35:37 :::CIS 43. On the receipt of the rukka, FIR No.620/06, dated .
23.11.2006 was registered at Police Station Kullu, District Kullu against the accused under Section 20 of the NDPS Act.
4. During investigation, the Investigating Officer prepared the spot map, recorded statements of the witnesses, arrested the accused and thereafter produced him alongwith the case property before SI Joginder Singh, who resealed each parcel with three seals of seal impression 'H', filled up the relevant columns of NCB-I form and impression of seal 'H' was also taken on a separate piece of cloth. SI Joginder Singh deposited the case property alongwith sample seals and NCB forms in the Malkhana.
On 23.11.2006, MHC Roop Singh handed over the case property alongwith documents to Constable Diwan Chand to deposit the same in SFSL, Junga.
5. On completion of the investigation and after receipt of the SFSL report, charge-sheet was prepared by SI Mahesh Kumar and presented the same in the Court.
6. Charge was framed by the learned trial Court against the accused under Section 20 of the NDPS Act, vide order dated 18.04.2007. Accused did not plead guilty of the charge framed ::: Downloaded on - 29/03/2023 20:35:37 :::CIS 5 against him and claimed trial.
.
7. In order to prove its case, the prosecution examined as many as ten witnesses. Statement of accused was recorded under Section 313 Cr.P.C., wherein, he denied all set of incriminating evidence led by the prosecution against him, besides pleaded that no charas was recovered from him and he has been falsely implicated in the case.
r The accused had examined one witness,
in his defence.
8. On the basis of evidence led on record by the prosecution, the learned trial Court held the accused guilty of his having committed offence punishable under Section 20 of NDPS Act and sentenced him as per description given hereinabove.
9. Being aggrieved and dissatisfied with the judgment of conviction and order of sentence passed by the learned trial Court, the accused approached this Court by way of the instant appeal, praying for his acquittal after setting aside the aforesaid judgment of conviction and order of sentence.
10. I have heard learned counsel for the appellant/accused as well as learned Additional Advocate General and also gone through the record carefully.
::: Downloaded on - 29/03/2023 20:35:37 :::CIS 611. The learned counsel for the appellant contended that .
the sample sent for chemical analysis was not the representative sample of the entire bulk and there is no evidence on record to suggest that the sample, which was sent for chemical analysis, was prepared homogeneously and thereafter was sent for chemical examination to SFSL, as such, the appellant cannot be held to have been found in illegal conscious possession of 1kg 50 grams of charas.
12. On the other hand, learned Additional Advocate General supported the judgment of the learned trial Court and contended that since the charge against the accused has been duly proved by the prosecution beyond reasonable doubt, the learned trial Court has rightly convicted him on the basis of proper appreciation of evidence.
13. The accused stood charged for commission of the offence punishable under Section 20 of NDPS Act, for having been found in exclusive and conscious possession of charas, weighing 1 kg 50 grams. To substantiate the said charge and to bring home the guilt of the accused, the prosecution has examined as many as 10 witnesses. However, the case of the prosecution mainly rests ::: Downloaded on - 29/03/2023 20:35:37 :::CIS 7 upon the statements of PW-6 ASI Gian Chand, PW-7 Constable .
Vikram Singh and PW-8 Mahesh Kumar (Investigating Officer).
These are the most material witnesses of the prosecution, who have been examined primarily to prove the search, recovery and seizure of charas, in question, from the exclusive and conscious possession of the accused.
14. I have carefully perused the statements of these witnesses, who have stated in one voice that on 22.11.2009, they proceeded from Police Station Bhuntar at 11.00 p.m., and laid a nakka at New Bajaura bridge on Garsa road and at about 1.30 a.m., (night), one person came from Hurla side carrying bag on his left shoulder and on seeing the police party, the said person got perplexed and on suspicion, he was apprehended by them and SI Mahesh Kumar questioned him, who disclosed his name to be Ail Ram, son of Pune Ram, R/o Khassi (Ukhal Chin). It was a secluded place and, as such, no independent person was present on the spot during night time and SI Mahesh Kumar directed C. Vikram Singh to locate independent witnesses from nearby place, who after a lapse of 10 or 15 minutes, returned and stated that no independent witness was found at nearby place. Thereafter, SI ::: Downloaded on - 29/03/2023 20:35:37 :::CIS 8 Mahesh Kumar associated PW-6 ASI Gian Chand and HC Bhagat .
Ram as witnesses and then he gave his personal search to the accused in their presence and in this regard, memo Ext.PN was prepared. The bag being carried by the accused was having single string and its outer pocket was having inscriptions 'STREET', which was searched by the police and it was found containing a polythene envelope, in which Charas had been kept in the shape of sticks. The recovered charas was weighed on the spot and it was found to be 1kg and 50 grams. Thereafter, two samples of 25 grams each were separated from the recovered charas and were sealed in separate parcels and the remaining charas was put back in the same polythene envelope and said polythene envelope containing charas was put back in the same bag and was sealed in separate parcel. A seizure memo was prepared on the spot, which is Ext.PP.
15. Now the question that arises for consideration is whether the prosecution has been successful in establishing that the appellant was found in possession of 1 kg 50 grams as deposed by the official witnesses. The statements of PW-6 to PW-8 reveal that the charas, which was recovered from the ::: Downloaded on - 29/03/2023 20:35:37 :::CIS 9 possession of the accused, was in the form of sticks. The seizure .
memo Ext. PP also reveals that the recovered charas was found in the shape of sticks. Thus, in view of the entire evidence on record led by the prosecution, it has become clear that the charas, which was recovered from the possession of the accused, was in the shape of sticks and in such a situation, it was incumbent upon the prosecution to establish that the samples, which were sent for chemical analysis, were prepared homogeneously and were the representative samples of the entire bulk . However, there is nothing on record to establish that any specific procedure was adopted for drawing representative samples. None of the aforesaid witnesses (PW-6 to PW-8) have clarified that what was the number of the sticks recovered from the possession of the accused. They have also not stated as to how the samples were drawn. None of these witnesses have stated that the entire bulk was made homogeneous and thereafter the samples were drawn as representative samples.
16. As per report of SFSL, Junga, Ext. PU, the sample, which reached the laboratory, was found to be 19.920 grams and the same was opined to be a sample of charas. Ext.PM is the ::: Downloaded on - 29/03/2023 20:35:37 :::CIS 10 report of the Central Forensic Science Laboratory, Chandigarh. A .
perusal of the same reveals that one sealed cloth parcel was received and on opening the said parcel, 21.50 grams dark green coloured rods stated to be 25 grams were found and after examination, it was opined that the exhibit was a sample of charas.
Thus, both the FSL reports Ext.PM and PU reveal that two samples weighing in total as 41.42 grams reached the Forensic Science Laboratories for chemical examination and were in the shape of sticks.
17. As observed earlier, the prosecution was required to prove that the entire bulk of charas was made homogeneous and thereafter the samples, which were sent for chemical analysis, were drawn as representative samples of the entire bulk.
However, no such evidence has been led by the prosecution, which creates a serious doubt upon the truthfulness of the case of the prosecution.
18. 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 ::: Downloaded on - 29/03/2023 20:35:37 :::CIS 11 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 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, 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 ::: Downloaded on - 29/03/2023 20:35:37 :::CIS 12 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 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) ::: Downloaded on - 29/03/2023 20:35:37 :::CIS 13 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, 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."
21. 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 ::: Downloaded on - 29/03/2023 20:35:37 :::CIS 14 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."
22. In Ravi Kumar @ Mani Versus State of Himachal Pradesh, 2022(3) Shim.LC 1354, a Division Bench of this Court has held as under:-
"20. 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 ::: Downloaded on - 29/03/2023 20:35:37 :::CIS 15 credence, the sample had to be representative sample, of .
entire 1 Kg 300 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.
27. Thus, from the entirety of evidence available on record, we are not convinced that the sample of 25 grams examined at Central Revenue Control Laboratory, Delhi was representative of entire bulk of substance and hence the appellant cannot be held to have been found in conscious possession of 1 kg 300 grams. 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. In Taj Deen Versus State of Himachal Pradesh, 2022(3) Shim.LC 1706, a Division Bench of this Court has held as under:
"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 ::: Downloaded on - 29/03/2023 20:35:37 :::CIS 16 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 2032 k.g. 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 including weight of second sample having entirely different legal consequences.
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 substance and hence, the appellant cannot be held to have been found in conscious possession of 2.032 k.g. 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."
24. Since in the present case, there is no evidence on record to suggest that the samples, which were sent for chemical analysis, were prepared homogeneously and thereafter were sent for chemical examination, as such, the appellant cannot be held to have been found in illegal conscious possession of 1kg 50 grams of charas and at the most, the appellant can be held to be in possession of 41.42 grams of charas, which as per the Act, would fall within the definition of small quantity.
::: Downloaded on - 29/03/2023 20:35:37 :::CIS 1725. Accordingly, the appellant is held guilty of the offence .
under Section 20 of the NDPS Act, for having been found in conscious possession of only small quantity of charas. 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 extending up to Rs.10,000/ - or with both.
26. The appellant is held guilty of offence under Section 20(b)(ii)(A) for having been found in conscious possession of only small quantity of charas and is sentenced to undergo rigorous imprisonment for six months. The impugned judgment of conviction and order of sentence dated 24.01.2008, passed by the learned trial Court is accordingly modified.
27. 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 ::: Downloaded on - 29/03/2023 20:35:37 :::CIS 18 thereof, shall appear before the Supreme Court.
.
The appeal is disposed of accordingly. Pending applications, if any, also stand disposed of.
( Sushil Kukreja ) Judge March 29, 2023 (VH) ::: Downloaded on - 29/03/2023 20:35:37 :::CIS