Himachal Pradesh High Court
Arun Kumar vs Of on 21 October, 2016
Bench: Dharam Chand Chaudhary, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Cr. Appeal No. 181 of 2015
Reserved on : 21.07.2016
Decided on: 21st October, 2016
Arun Kumar .......Appellant
Versus
of
State of Himachal Pradesh ...Respondent
Coram
rt
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge. The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
For the appellant: Mr. Anoop Chitkara, Advocate. For the respondent: Mr. D.S. Nainta, Addl. A.G. Dharam Chand Chaudhary, Judge.
Appellant Arun Kumar herein is a convict. He has been convicted by learned Special Judge Mandi, District Mandi under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'NDPS Act' in short) vide judgment dated 17.04.2015 passed in Sessions Trial No. 51/2010 and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay `1,00,000/- as fine.
1Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 22. On 26.04.2010, a Police party comprising lady PSI Reeta Devi, PW-9 ASI Mohan Lal (II), PW-1 Head .
Constable Kamal Kant, HHC Prakash Chand and Constable Puran Chand of Police Station, Balh District Mandi left towards village Nagchala side at about 3.00 of p.m. for laying 'nakka' and conducting traffic checking.
Rapat Ext. PW-5/A in this regard was entered in daily rt diary. They laid 'nakka' at Nagchala and started traffic checking there. Around 4.15 p.m. HRTC bus bearing registration No. HP65-1768 enroute Manali to Delhi reached at the place of 'nakka'. The bus was got stopped at the place of 'nakka'. The police party started checking the bus. The convict allegedly occupying seat No. 36 was found to be holding a black, red and grey coloured rucksack (bag) on his legs. On seeing the police party, he became nervous and behaved in a suspicious manner. Looking such behaviour of the convict, the I.O PW-9 suspected some incriminating substance in his possession.
Therefore, his antecedents were inquired into in the presence of Shri Hari Singh, driver of the bus and PW-6 ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 3 Bakshi Ram its conductor. Thereafter, the police personnel offered their search first, however, nothing .
incriminating was recovered from their possession.
Memo Ext. PW-6/C was prepared in this regard. It is thereafter the rucksack, the convict was holding on his of legs was searched and one polythene packet wrapped in a white colour cloth was recovered therefrom. On rt opening the said packet, charas in the shape of sticks was recovered in presence of S/Shri Hari Singh and Bakshi Ram aforesaid. The recovered charas was weighed and found one kilogram. PW-9 resorted to the sampling and sealing process and sealed the recovered charas in a parcel with 15 impressions of seal 'D'. The sample of seal Ext. PW-9/A was drawn separately. The recovered charas was taken in possession vide seizure memo Ext. PW-6/A. The NCB-I forms Ext. PW-7/E were filled in on the spot in triplicate. The facsimile of seal 'D' was also put on these forms. It is thereafter rukka Ext. PW-
7/A was prepared and sent to the Police Station through HC Kamal Kant, PW-1. On the basis of rukka FIR Ext. PW-
7/B came to be recorded by PW-7 Surinder Pal, the then ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 4 Station House Officer, Police Station, Balh. PW-7 had also made endorsement Ext. PW-7/C over the rukka. The .
case file was taken to the I.O on the spot by PW-1. The I.O. PW-9 had prepared the spot map Ext. PW-8/B. The ticket of bus Ext. PA was recovered from the convict and of taken into possession vide memo Ext. PW-6/C. The grounds of arrest were disclosed to the convict vide rt memo Ext. PW-6/D and he was arrested. The personal search of the convict was also conducted vide memo Ext. PW-6/B.
3. On the completion of investigation at the spot, the convict along with case property was brought to Police Station, Balh. The IO PW-9 has produced the case property along with sample of seal, NCB forms and seizure memo etc., before PW-7 the Station House Officer. Rapat Ext. PW-5/B was entered in this regard in daily diary. PW-7, the Station House Officer has re-sealed the parcels containing the recovered charas with seal 'A'. He has also drawn the sample of seal, which is Ext.
PW-7/D. It is thereafter the case property along with sample of seals, NCB forms and seizure memo was ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 5 handed over to PW-4 Head Constable Prabhakar, the then additional MHC, Police Station, Balh for safe .
custody in the Malkhana. Rapat Ext. PW-5/C in this regard was also entered in daily diary. A memo Ext. PW-
4/A to this effect was also prepared. PW-4 has received of the case property and entered the same at Serial No. 116 of the Malkhana register. The extract whereof is Ext.
rt PW-4/B. On 29.04.2010, the parcel containing the case property was sent to State Forensic Science Laboratory, Junga for analysis vide RC No. 100/10, Ext. PW-2/A through PW-2 Constable Vijay Kumar. The special report Ext. PW-8/A was prepared and forwarded to D.S.P. Mandi, the Supervisory Officer. The entry qua receipt of the special report in the office of D.S.P. Mandi in the relevant register is at Serial No. 90, Ext. PW-8/B. The detail of other articles forwarded to the Laboratory along with the parcel containing charas find mention on the reverse of RC Ext. PW-2/A. The case property forwarded to the laboratory vide RC Ext. PW-2/A was received there duly sealed with seals 'D' and 'A', however, when weighed the same was found to be 928grams, whereas, the ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 6 actual weight of the exhibit was found to be 972grams.
The recovered charas was analyzed in the laboratory .
and as per report Ext. PW-3/A found to be extract of cannabis and as such the sample of charas.
4. On the completion of investigation, report of under Section 173 of the Code of Criminal Procedure was filed against the convict in the Court of learned rt Special Judge, Mandi, Distt. Mandi. Learned Special Judge after observing all the codal formalities and hearing the prosecution as well as learned defence counsel has prima-facie found the involvement of the convict in the commission of an offence punishable under Section 20 of the NDPS Act. The charge against him was, therefore, framed accordingly.
5. The accused on hearing and understanding the charge has not admitted the same to be correct nor pleaded guilty and as such, learned trial Court has proceeded further in the trial by calling upon the prosecution to produce evidence in support of its defence against the convict. The prosecution in turn has examined nine witnesses in all. The material prosecution ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 7 witnesses are HC Kamal Kant PW-1, Sh. Bakshi Ram, the conductor of the bus PW-6 and the Investigating Officer .
the then ASI Mohan Lal of Police Station, Balh PW-9. The remaining prosecution witnesses are formal because they remained associated in one way or the other during of the investigation of the case. Any how, the evidence as has come on record by way of their testimony can be rt looked into as link evidence.
6. Learned trial Court after holding full trial and affording opportunity of being heard to the parties on both sides as well as taking into consideration the evidence available on record and also the law applicable has arrived at a conclusion that the charas weighing one kilogram has been recovered from the conscious and physical possession of the convict. He was accordingly convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay `1,00,000/- as fine.
7. The convict, however, being aggrieved and dissatisfied with the findings of his conviction recorded by learned trial Court has preferred this appeal in this Court ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 8 with a prayer to quash and set aside the same and to set him free by acquitting from the charge under Section 20 .
of the NDPS Act.
8. The legality and validity of the impugned judgment though has been questioned on several of grounds, however, mainly that it was a case of prior information and the Investigating Officer has failed to rt report compliance to the provisions contained under Sections 42 of the NDPS Act. The story has been concocted as the police has been doing in such like cases in the State of Himachal Pradesh. The allegations leveled against the convict have been concocted and engineered and the convict was illegally apprehended and searched without there being any search warrant.
Without conceding or admitting the recovery of alleged substance, it is pointed out that same has not been proved to be charas within the meaning of NDPS Act.
The chemical examiner's report is in admissible. The findings recorded by learned trial Court are vitiated on account of placing reliance on the testimony of official witnesses. In order to hold the convict guilty, ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 9 corroboration to the prosecution story from some independent source was required. The proceedings also .
vitiated on account of non-compliance of Section 50 of the NDPS Act. The link evidence is also missing since the independent witness PW-6 has not supported the of prosecution case, therefore, two possible views as emerges on record, the benefit of doubt has erroneously rt been withheld from the convict. It is also claimed that some incriminating circumstances appearing in the prosecution evidence have not been put to the convict in his statement recorded under Section 313 of the Code of Criminal Procedure. The evidence of official witnesses highly contradictory has erroneously been relied upon to record the findings of conviction. Being so, the impugned judgment has been claimed to be not legally sustainable and as such, sought to be quashed and set aside and in the alternative keeping in view the charas when weighed in the laboratory was found to be 972grams, the quantity thereof being less than commercial quantity, the sentence imposed upon the convict has been sought to be reduced.
::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 109. Mr. Anoop Chitkara, learned counsel representing the appellant-convict has strenuously .
contended that the present is a case of recovery of contraband allegedly charas below commercial quantity in view of its weight when weighed in the State of Forensic Science Laboratory was found to be 972grams.
Therefore, according to Mr. Chitkara, the convict could have not rt been sentenced to undergo rigorous imprisonment for a period of 10 years and pay `1,00,000/- as fine. The recovery of charas from the exclusive and physical possession of the convict is stated to be not proved because as per the evidence produced by the prosecution itself, few of the passengers ran away from the spot where the bus was stopped. The contradictions qua arrival of the bus at the place of 'nakka' have also been pointed out. It is also contended that when the ticket was issued at 16:07:37 hours (04:07:37), how the bus could have reached at Nagchala at 4.00 p.m. The trend of writing of seizure memo Ext. PW-6/A, memo Ext. PW-6/B qua personal search of the accused, memo Ext. PW-6/C whereby the ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 11 police officials were searched and arrest memo Ext. PW-
6/D has also been pointed out to urge that initially the .
spacing while writing these memos was quite wide, however, in the end squeezed considerably. According to Mr. Chitkara this shows that the signatures of the of witnesses were obtained on blank papers. The version of conductor PW-6 that they were made to sign document, rt therefore, according to learned counsel is true and correct. The contradictions in the testimony of the I.O.
PW-9 and that of HC Kamal Kant PW-1 have also been pointed out. It has, therefore, been urged that no findings of conviction could have been recorded against the convict in this case.
10. On the other hand, Mr. D.S. Nainta, learned Additional Advocate General has pointed out from the record that all the documents bear the signatures of Hari Singh and also that of PW-6 Bakshi Ram. There was no pressure on them of any kind, which according to learned Additional Advocate General shows that the search and seizure has taken place in the manner as claimed by the prosecution. The contradictions as ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 12 pointed out are stated to be minor in nature and have rightly been ignored. it is also argued that variation in .
weight of recovered charas seems to have occurred on account of the same when recovered was weighed with a traditional weighing scale and weights, whereas, in the of laboratory the same was weighed with electronic scale.
Therefore, according to Mr. Nainta, the judgment passed rt by learned trial Court is absolutely legal and valid, hence calls for no interference.
11. What could be gathered from the grounds of appeal and also the arguments addressed on behalf of the appellant-convict is that the findings of conviction and sentence recorded against the convict are sought to be quashed and set aside allegedly being not legally sustainable for want of cogent and reliable evidence in support of the prosecution case qua recovery of charas weighing one kilogram from the exclusive and physical possession of the convict, for want of compliance of the provisions contained under Sections 42 and 50 of the NDPS Act and that the quantity of charas allegedly recovered being 928grams is not commercial quantity ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 13 and rather greater than the small quantity and lesser than the commercial quantity. Being so, the sentence .
awarded does not commensurate with the offence allegedly committed. The testimony of PW-6 who has not supported the prosecution case and the alleged of contradictions in the statements of prosecution witnesses PW-1 and PW-9 have also been pressed in service to rt assail the impugned judgment.
12. Now if coming to the first point urged on behalf of the appellant-convict, admittedly he was traveling in HRTC bus bearing registration No. HP65-1768 enroute Manali to Delhi. PW-6 Bakshi Ram is the conductor of the bus, whereas, Hari Singh was its driver.
As per prosecution case which even has been admitted by the convict also while answering question No. 3 in his statement recorded under Section 313 of the Code of Criminal Procedure, the bus reached at village Nagchala where the police had laid the 'nakka' at 4.15 p.m. No doubt, PW-6 Bakshi Ram who has been associated as an independent witness has stated that the bus reached at the place of 'nakka' i.e. Nagchala ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 14 at 4.00 p.m., however, when he had already issued the ticket to the convict at 16:07:37 hours (04:07:37 pm) well .
before the arrival of the bus at Nagchala, as is apparent from the xeroxed copy of the original ticket Ext. PA allowed to be placed on record by learned defence of counsel, how the bus could have reached at Nagchala at 4.00 p.m. The ticket has been recovered from the rt convict vide memo Ext. PW-6/C. PW-6 though has denied this aspect of the prosecution case, however, in the same breath when he has admitted that ticket Ext.
PA was issued by him, his testimony to the contrary is absolutely false. It would not be improper to conclude that he has deposed falsely in connivance with the convict may be for some extraneous considerations. The bus was fully packed because as per admitted case of the parties on both sides, some passengers were even standing also in the bus. The prosecution case that during the checking of the bus the convict occupying seat No. 36 was found to be holding a bag on his legs find support from the documentary evidence such as seizure memo Ext. PW-6/A and the rukka Ext. PW-7/A. ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 15 Such version even finds corroboration from the testimony of PW-1 HC Kamal Kant and the I.O. PW-9. The seizure .
memo Ext. PW-6/A and other documents such as Ext.
PW-6/B, Ext. PW-6/C and Ext. PW-6/D bear signature of Hari Singh, the driver of the bus and its conductor Bakshi of Ram PW-6. Bakshi Ram PW-6 has admitted so while in the witness box. Sh. Bakshi Ram in his cross-examination rt conducted on behalf of the prosecution has stated that the contents of these documents were not gone into by him when put his signatures thereon. He admits that he is matriculate and can read as well as understand Hindi language. He is a conductor, therefore, he is not expected to have signed the documents, that too, in a case of this nature involving the freedom and liberty of an individual without going through the contents thereof.
Being so, to our mind he is a liar and to the reasons best known to him, he has concealed the factual position from the Court. Neither in his examination-in-chief nor in his cross-examination conducted on behalf of the prosecution, he has no-where stated that papers on which aforesaid documents i.e. Ext. PW-6/A, Ext. PW-6/B, ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 16 Ext. PW-6/C and Ext. PW-6/D have been reduced into writing were blank. However, when cross-examined by .
learned defence counsel, he has come-forward with altogether different story that on the recovery of charas from a bag brought down by the police party from the of shelf of the bus, the police inquired as to whom the bag belongs and when all the passengers did not claim the rt bag to be theirs, the police officials directed the driver of the bus to drive the same to Police Station and on their request that few of the passengers are foreign nationals traveling in the bus had to board flights to their nation, the bus was allowed to be driven from the police station to its destination, however, only after obtaining his signatures and that of driver of the bus Hari Singh on blank papers as well as on piece of cloth. Such plea raised by the convict in his defence is an afterthought because had the signatures of PW-6 Hari Singh been obtained on blank papers, similar suggestions should have also been given to Kamal Kant PW-1. No such suggestions, however, were given to this witness and the suggestions to this effect given to PW-9, however, were ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 17 denied being wrong. The suggestions that the police directed the driver to drive the bus to police station at .
such stage when the recovered charas remained unclaimed are contradictory to the suggestions given to PW-1 that when on being signaled the driver stopped of the bus at the place of 'nakka', the I.O. PW-9 proclaimed that he had information of illicit trafficking of rt some drug or narcotic substance in the bus and asked the driver to drive the bus to police station. Also that the I.O. PW-9 had conducted the checking of the bus at the place of 'nakka' for 35-40 minutes. The bus on long route like Manali Delhi could have not been driven by its driver to the police station without seeking permission from his superiors for the reasons that police station Balh does not situate on Manali Delhi highway but on Ner Chowk-Kalkhar Jahu road at village Ratti i.e. at a distance of about one kilometer from Ner Chowk from where the road bifurcates from the national highway to village Ratti. Therefore, it cannot be believed by any stretch of imagination that search and seizure did not take place at the place of 'nakka' in the presence of ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 18 PW-6 and rather false case was foisted on the convict by fabricating the documents in the police station. The .
convict has not produced any evidence to show that there was animosity of the police with him and it is for this reason the charas weighing one kilogram has been of falsely planted on him.
13. If coming to the testimony of PW-1 Head rt Constable Kamal Kant and the I.O. PW-9, they both in one voice tell us that rucksack in which the recovered charas found to be kept in a white coloured polythene bag was being held by the convict on his legs. The suggestions to the contrary put to them in their cross-
examination have been denied being wrong. The contradictions that as per I.O. PW-9 by the time the bus in question arrived at the place of 'nakka' the police party had already checked 25-30 vehicles, whereas, as per that of PW-1, only 2-3 vehicles were checked and that as per the testimony of PW-9 the I.O. Ritta Devi the lady PSI was searched by a lady passenger traveling in the bus, whereas, as per that of PW-1 she was searched by a police official are not of such a nature so as to belie ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 19 the prosecution case qua the recovery of charas from the bag which was being held by the convict. The .
recovery of charas form the exclusive and physical possession of the convict stands satisfactorily proved from the evidence available on record. Learned trial of Judge has, therefore, rightly held that the prosecution in this case has successfully established the culpable rt mental state of the convict to commit the offence while placing reliance on the judgment of the Hon'ble Apex Court in Dharam Pal Singh V. State of Punjab (2010) 9 SCC 608 and in Jagdish Raj V. State of Punjab (2011) 4 SCC 571.
14. The link evidence in this case is also complete because it is satisfactorily proved that the parcel containing the recovered charas was sealed with 15 impressions of seal 'D' by the I.O. PW-9, whereas, re-
sealed with 5 impressions of seal 'A' by the Station House Officer, PW-7 from the testimony of PW-1, the I.O. PW-9 and that of the Station House Officer, PW-7 and also the seizure memo Ext. PW-6/A, rapat Ext. PW-5/B, rapat Ext.
PW-5/C and the re-seal certificate Ext. PW-4/A. The ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 20 facsimile of seals 'D' and 'A' have even been put on the NCB forms and the sample thereof Ext. PW-9/A and Ext.
.
PW-7/D have also been drawn. The entries Ext. PW-4/B in the malkhana register reveal that the case property duly sealed with seals 'D' and 'A' was handed over to PW-4, of the Moherer Head Constable for safe custody in the malkhana along with sample of seal 'D' and sample of rt seal 'A' and also the NCB forms in triplicate on 26.04.2010 itself at 7.35 p.m. The case property was sent to Forensic Science Laboratory, Junga on 29.04.2010 through PW-2 Constable Vijay Kumar vide RC Ext. PW-2/A. The docket, samples of seals 'D' and 'A', copy of FIR, copy of seizure memo, re-sealing memo and NCB-I forms in triplicate were also sent to Forensic Science Laboratory. The report of chemical examiner Ext. PW-3/A reveals that the parcel containing recovered charas was duly sealed with seals 'D' and 'A' when received in the laboratory along with NCB-I forms and other documents as aforesaid. The endorsement in the extract of malkhana register Ext. PW-4/B reveals that the parcel containing the case property duly sealed with the seal of laboratory ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 21 after analysis was returned to the malkhana in safe custody through HHC Pritam Lal, PW-3. The report Ext.
.
PW-3/A reveals that the exhibit (recovered charas) on analysis was found to be the extract of cannabis and being so charas. Not only this but when as per rapat Ext.
of P-X the case property was produced by HHC Ram Lal in the trial Court, the same was duly sealed with six seals of Forensic rt Science Laboratory. In this case, the prosecution case qua prepration of special report Ext.
PW-8/A and its delivery to the D.S.P. (HQ), Mandi is also proved from the testimony of Narender Kumar, PW-8.
15. Now if coming to the second limb of arguments addressed on behalf of the convict-
appellant, the present is not a case of prior information and rather a case of chance recovery because as per the rapat in daily diary Ext. PW-5/A, the police party headed by ASI Mohan La PW-9 and PSI Ritta Devi being on routine traffic checking duty had laid 'nakka' at village Nagchala. True it is that PW-1 in his examination-
in-chief has stated that the I.O. PW-9 had told them that he had information qua trafficking of some narcotic drug ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 22 and psychotropic substance in the HRTC bus, however, in the very opening sentence in his cross-examination by .
learned defence counsel he has expressed his inability to tell that the I.O. had told the other police officials that he had prior information qua transportation of contraband of in HRTC bus, whereas, as per the version of the I.O. PW-9 in his cross-examination he had no prior information rt regarding transportation of charas in the bus. No such suggestion was, however, given to Bakshi Ram PW-6.
Therefore, the only sentence in the examination-in-chief of PW-1 that the I.O. told the police party about he was having prior information qua charas being carried in the bus cannot be believed as gospel truth to conclude that the I.O. PW-9 had prior information that the charas was being carried by the convict in HRTC bus. Being so, there is no question of violation of the provisions contained under Section 42 of the NDPS Act.
16. Now if coming to the alleged violation of the provisions under Section 50 of the NDPS Act. The plea so raised on behalf of the appellant-convict is again without any substance for the reason that firstly the ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 23 present is a case of chance recovery and the charas has been recovered from the bag being carried by the .
convict with him and secondly that charas has not been recovered during personal search of the convict and rather during the search of the bag he was carrying with of him. In a case of this nature, the compliance of Section 50 of the NDPS Act is not required. We can draw support rt in this regard from the judgment of the Hon'ble Apex Court in Kulwinder Singh and another V. State of Punjab (2015) 6 SCC 674, wherein it has been unequivocally held that Section 50 applies only in a case where the personal search of the accused is required to be conducted for recovery of incriminating circumstance, if any, from him. The same as per ratio of this judgment cannot be extended to the search of a vehicle or container or bag or premises. Since, in the case in hand, it is only the search of rucksack the convict was holding with him has been conducted and the charas recovered therefrom, hence there was no question of compliance of Section 50 of the Act. True it is that personal search of the accused has also been ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 24 conducted, however, after the recovery of charas from the rucksack he was carrying with him i.e. after his arrest .
vide memo Ext. PW-6/B. The same was only for the purpose to ascertain the personal belongings with him before lodging him in lockup. The relevant portion of the of judgment reads as follows:
"20. The next contention that has been raised by the learned counsel for the appellants relates to non- rt compliance of Section 50 of the NDPS Act. It is undisputed that the bags containing poppy husk were seized from the truck. Thus, it is not a case of personal search of a person. In Megh Singh v. State of Punjab, it has been held that Section 50 only applies in case of personal search of a person, but it is not extended to a search of a vehicle or a container or a bag or premises.
21. In State of H.P. v. Pawan Kumar, it has been held that:-
"10. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a living individual unit and not an artificial person.::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 25
The word has to be understood in a broad common-sense manner and, therefore, not a .
naked or nude body of a human being but the manner in which a normal human being will move about in a civilised society. Therefore, the most appropriate meaning of the word "person"
appears to be -- "the body of a human being as of presented to public view usually with its appropriate coverings and clothing". In a civilized society appropriate coverings and rt clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.
::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 2611. A bag, briefcase or any such article or .
container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being.
Depending upon the physical capacity of a of person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying rt size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act."
Similar view has been expressed in Jarnail Singh v. State of Punjab and Ram Swaroop v. State (Government of NCT of Delhi)
22. In view of the aforesaid, the submission that non- compliance of Section 50 vitiates the conviction, leaves us unimpressed."
::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 2717. Similar is the view of the matter taken by the .
Hon'ble Apex Court in State of Rajasthan V. Parmanand and another (2014) 5 SCC 345 and in Yashihey Yobin and another V. Department of Customs, Shillong (2014) 13 Supreme Court Cases 344. The relevant extract of this of judgment reads as follows:
"9. The Trial Court and the High Court while answering rt the aforesaid issues have concurrently come to the conclusion that accused No.2 was not searched by the custom officers but it was only the bag in possession of A2 containing contraband which was searched and seized. The language employed "any person" under Section 50 of the Act would naturally mean a human being or a living individual unit and not an artificial person. It would not bring within its ambit any non-living creature viz.; bags, containers, briefcase or any such other article. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be a part of the body of a human being. The scope and ambit of Section 50 was examined in considerable detail in the case of State of Haryana v. Suresh, AIR 2007 SC 2245 and in a three judges bench decision in State of Himachal Pradesh v. Pawan Kumar, 2005 4 SCC 350, wherein it is observed that when a person is not searched, only the bag, container or the suitcase is searched, the provisions of Section 50, ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 28 cannot be pressed into service. The items like bag, briefcase, or any such article or container, etc. are not .
a part of a human being as it would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. In common parlance it could be of said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. but it is not possible to rt include these articles within the ambit of the word "person" defined in Section 50 of the Act.
10. This position in law is settled by the Constitution Bench in the case of State of Punjab v Baldev singh, AIR 1999 SC 2378 and in Megh Singh v State of Punjab, 2003 8 SCC 666, where application of Section 50 is only in case of search of a person as contrasted to search of premises, vehicles or articles. But in cases where the line of separation is thin and fine between search of a person and an artificial object, the test of inextricable connection is to be applied and then conclusion is to be reached as to whether the search was that of a person or not. The above test has been noticed in the case of Namdi Francis Nwazor v. Union of India and Anr.,(1998) 8 SCC 534, wherein it is held that if the search is of a bag which is inextricably connected with the person, Section 50 of the Act will apply, and if it is not so connected, the provisions will not apply. It is when an article is lying elsewhere and is not on the ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 29 person of the accused and is brought to a place where the accused is found, and on search, incriminating .
articles are found therefrom it cannot attract the requirements of Section 50 of the Act for the simple reason that the bag was not found on the accused person."
18. We, however, find considerable force in the of arguments addressed on behalf of the convict-appellant that quantity rt of recovered charas is not at all commercial for the reason that the charas when weighed in the laboratory its actual weight was found to be 928grams, whereas, that of the exhibit i.e. the parcel, 972grams. The explanation that the charas when recovered was weighed by the I.O with traditional scale and weights, whereas, in the laboratory with electronic scale is neither reasonable nor plausible for the reason that the I.O. while in the witness box has said that the recovered charas was weighed by him with scale available in the I.O. kit. It cannot be believed by any stretch of imagination that in the I.O kit a traditional scale and weights could have been kept and taken with him by the I.O to the spot. One can understand that ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 30 with the passage of time on account of the substance get dried, its weight may decrease, however, in the case .
in hand, the charas which was recovered on 26.04.2010 was dispatched to the laboratory after 2-3 days i.e. on 29.04.2010. The present as such is not a case of recovery of of charas weighing commercial quantity and rather the quantity of the recovered charas being less than one rt kilogram is no doubt greater than small quantity, however, lesser than the commercial quantity. Even if it is believed that the recovered charas was one kilogram, in that event also, in terms of Section 2(viia) of the NDPS Act "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette. Now if Notification issued by the Central Government is seen, charas weighing one kilogram has been shown therein as commercial quantity. However, within the meaning of Section 2(viia), in order to constitute the quantity of the recovered charas as commercial, its weight should have been greater than one kilogram. Therefore, on this ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 31 score also, the recovered charas by any stretch of imagination cannot be termed to be commercial .
quantity. We find support in this regard from the judgment of a Full Bench of this Court in Ratto V. State of H.P. 2003(2) Shim.L.C. 161. This judgment reads as of follows:
"40. We feel that there is no ambiguity in the language of Section 2(viia), supra. As such, rt simple and literal meaning has to be given to the words 'quantity greater than', so as to hold what would he the commercial quantity.
41. As already noted there is hardly any ambiguity, muchless conflict between Section 2(viia) and the notification as extracted here-in-above for determination of what would be the commercial quantity, By virtue of powers conferred under sub-section (viia) of Section 2, Central Government is authorized to notify as to what would be the commercial quantity. Because the "commercial quantity" on a plain reading of its definition amongst other things has to be "...greater than the quantity specified by the Central Government by notification.....".::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 32
Under 2001 Act notification supra was issued specifying the quantity for the purpose of .
Section 2(viia) of the Act. A perusal of this notification indicates that quantity specified is one kilogram. Various columns of the notification extracted hereinabove have to be read in conjunction with the substantive of provision of Section 2(viia) of the Act. This also puts a harmonious construction on both, notification as well as Section 2(viia). While rt determining the quantity under this sub-
section, it has to be greater than One Kg. There is hardly any doubt regarding either the words one kg.", or the "commercial quantity"
which has to be 'greater than", which in our considered view would always mean any quantity more than/bigger than/larger than one kg. We are further of the view that this provision, and for that matter, notification admits of no other interpretation on its reading. Thus, it cannot be said that one Kg. would be the commercial quantity for the purpose of Section 2(viia), as added by 2001 Act.
42. Another reason to take this view is, that substantive and main provision of the Act is Section 2(viia) which is subject matter of the ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 33 discussion in this judgment. It is also well known and accepted rule of interpretation of .
statutes that rules, regulations as well as notifications issued thereunder are meant to sub-serve the purpose of main provision of law and not other way round. Notification in the instant case, as extracted hereinabove, is of a delegated legislation. Therefore, it can in no case bye-pass or over-ride the substantive provision of law and in case of conflict, rt delegated legislation has to give way to the main provision of law.
43. In this behalf, we may also observe that legislature in its wisdom has used the words in this sub-section knowing there significance, as well as import and at the cost of repetition, it needs to be noted that when language is clear, then ordinary meaning to the words needs to be given. As such, no aids either internal or external need to be pressed into service as was urged on behalf of the respondent to give another meaning."
19. In view of the above, the appellant-convict could have not been sentenced under Section 20(b)i) of the Act and rather under (ii) of Clause (b) of Section 20 of the Act. We, therefore, are in agreement with Mr. ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 34 Chitkara, learned counsel representing the appellant-
convict that sentence awarded against the convict is .
required to be reduced. Having regard to the age of the convict i.e. approximately 23 years on 26.04.2010 when he was arrested in connection with the case of registered against him under Section 20 of the NDPS Act and also that he remained in custody during the rt pendency of the trial and after his conviction and sentence is serving out sentence in jail and he is in custody for a period over six years, we find the present a case where the sentence already undergone by the convict would serve the ends of justice. As such, he needs to be set free from the custody forthwith if not required in any other case. So far as the sentence of fine is concerned, in the given facts and circumstances, we reduce the same also to `10,000/-
20. In view of the findings recorded hereinabove, we sentence the convict to the imprisonment he has already undergone and to pay `10,000/- as fine. The convict as such be set free and released from custody forthwith, if not required in any other case. However, on ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 35 his failure to pay the amount of fine, he shall have to undergo rigorous imprisonment for a further period of .
three months. Accordingly the appeal is partly allowed and stands disposed of.
21. Before parting with the case, we would be of failing in our duty, if ignore the manner in which PW-6 Bakshi Ram, the conductor of the bus has conducted rt himself while in the witness box. Taking note of the statement, he made while in the witness box, we have prima-facie formed an opinion that he is a liar and has not disclosed true facts to the Court. Admittedly, he was on duty as conductor with HRTC bus intercepted by the police at the place of 'nakka' at village Nagchala. As per the prosecution case, during the checking of luggage charas was recovered from the bag which the convict was holding on his legs. As we already observed in earlier part of this judgment, PW-6 is a liar and has deposed falsely to help the convict to the reasons best known to him, may be for some extraneous considerations. In our opinion, he while in the witness box has made a false statement, most probably, at the ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 36 behest of the convict. When he has issued the ticket Ext.
PA at 16:07:37 hours (04:07:37 pm) i.e. in all probability at .
Mandi or on the way at a place behind Nagchala, how he could have said while in the witness box that the bus reached at Nagchala at 4.00 p.m. that too, well before of the issuance of ticket to the convict. According to him, the charas was recovered from the bag on the spot rt itself. When no evidence to the contrary that the police had enmity with the convict has come on record, it is proved that the charas was recovered from the bag which the convict was carrying with him. His denial to this part of the prosecution case itself speaks in plenty about his conduct and credibility. In his cross-
examination conducted on behalf of the convict, he has introduced a new story that when the bag from which the charas recovered was not claimed by any passenger, the police directed the driver to take the bus to police station. Such plea in his defence raised by the convict is an afterthought because had it been so, he could have examined someone to substantiate this aspect of this matter. Had the bus been taken to police ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 37 station, some record like entries in the log book of the bus etc., would have been there with the HRTC.
.
Otherwise also, some evidence that permission was sought by the driver to take diversion from Ner Chowk for driving the bus to police station should have been there of and produced during the course of trial. He has admitted the issuance of ticket, however, denied the rt same having been taken into possession in his presence, irrespective of he has admitted his signature on the recovery memo Ext. PW-6/C. It was no-where his version in his examination-in-chief or in his cross-examination conducted on behalf of the prosecution that he along with the driver of bus Hari Singh were made to sign blank papers. Interestingly enough, in his cross-examination conducted on behalf of the prosecution, he has admitted his signature on the seizure memo Ext. PW-6/A, personal search of accused vide memo Ext. PW-6/B, search of police officials given vide memo Ext. PW-6/C and arrest of accused vide memo Ext. PW-6/D. When he tells us that he has not gone through the contents of these documents, it leads to the only conclusion that ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 38 contents were duly written in these documents. He is a matriculate and as per his version, not only he can read .
and write Hindi but he can also understand the same.
When he is conductor, it cannot be expected that he would have signed blank papers, that too, at the of instance of police and in a case of recovery of charas involving the freedom and liberty of an individual.
rt Therefore, to our mind PW-6 has intentionally and deliberately made a false statement with a view to screen the evidence and to save the convict from the prosecution and as such liable himself to be dealt with in accordance with law.
22. Section 340 of the Code of Criminal Procedure takes care of such a situation. The provisions contained under the Section ibid reveal that if on an application made to it or otherwise, the Court is of the opinion that it is expedient and in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-Section (1) of Section 195 of the Code, which appears to have been committed in relation to proceedings of a case in that Court, the Court ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 39 shall hold a preliminary inquiry and after recording a finding that by producing a document or giving a .
statement in evidence, an offence referred to in clause
(b) of sub-Section (1) of Section 195 of the Code is made out, order to make a complaint in writing to a Magistrate of of the first class having jurisdiction over the matter.
23. Section 340 of the Code of Criminal rt Procedure Code contemplates a preliminary inquiry to be conducted by the Court to form an opinion that it is expedient and in the interest of justice to hold inquiry into the offence which appears to have been committed. It is not mandatory for the trial Court to hold preliminary inquiry, because it has the opportunity to see the witness while in the witness box and to observe his demeanour.
We, however, feel that the appellate Court, having no such opportunity to observe the demeanour of the witness, should hold an inquiry and give an opportunity of being heard to him, before forming an opinion that an offence within the meaning of clause (b) of sub-
Section(1) of Section 195 of the Code of Criminal Procedure appears to have been committed by him. It ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 40 is only thereafter, an order qua filing a complaint, as contemplated under Section 340 of the Code of Criminal .
Procedure, should be passed.
24. Therefore, before initiating any action against PW-6 Bakshi Ram, we deem it expedient and in of the interest of justice to call upon him to show cause as to why an action be not initiated against him in the light rt of the observations in this judgment. Consequently, there shall be a direction to the Registry to issue show cause notice to PW-6 Bakshi Ram for 30.12.2016 and the proceedings be registered against this witness separately. A copy of judgment be also sent to him alongwith show cause notice. Office of learned Advocate General to collect notice from the Registry of this Court for onward transmission to the Superintendent of Police, Mandi, for effecting service thereof upon the witness aforesaid well before the date fixed. The record of the trial Court be retained for being referred to at the time of further consideration of the matter, after taking on record the version of the witness, to be referred to as ::: Downloaded on - 15/04/2017 21:25:17 :::HCHP 41 'the respondent' in the proceedings ordered to be drawn separately against him.
.
(Dharam Chand Chaudhary)
Judge
(Vivek Singh Thakur)
October 21, 2016 Judge
of
(naveen)
rt
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