Himachal Pradesh High Court
Sanju vs State Of H.P on 7 August, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
.
Cr. Appeal Nos. 136 & 184 of 2021
Reserved on: 27.7.2023
Date of decision:7.8.2023.
1. Cr. Appeal No. 136 of 2021
Sanju ...Applicant.
of
Versus
State of H.P. ...Respondent
2. Cr. Appeal No. 184 of 2021
rt
Ram Singh ...Appellant
Versus
State of H.P. ...Respondent
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1Yes.
For the appellant : Ms. Anjali Soni Verma, Advocate,
for the appellant in Cr. Appeal
No. 136 of 2021 and Mr. Malay
Kaushal, Advocate, for the
appellant in Cr. Appeal No. 184
of 2021.
For the respondents : Mr. I. N. Mehta, Sr. Addl. A.G.
with Mr. Ramakant Sharma and
Ms. Sharmila Patial, Addl. A.Gs,
and Mr. J. S. Guleria, Ms.
Priyanka Chauhan, Dy. A.Gs.
and Mr. Rajat Chauhan, Law
Officer.
1
Whether reporters of Local Papers may be allowed to see the judgment?
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-2-
Satyen Vaidya, Judge:
.
Both these appeals have been taken up for hearing and are being decided together as these arise from the same judgment of conviction dated 8.3.2021,passed by of learned Special Judge, Chamba in Sessions Trial No. 25 of 2018.
2. rt The case of prosecution is that on 21.11.2017, PW-9 HC Kuldeep, PW-10 Constable Yog Raj and PW-23 HC Vivek Kumar were at place 'Tunnuhatti' within the jurisdiction of Police Station, Chuwari, District Chamba, H.P. At about 10.45 A.M one HRTC bus bearing No. HP-73- 4528 enroute from Chamba to Katra was stopped for checking. Appellant Ram Singh was found occupying seat No. 25 with a carry bag in his possession. On noticing the police officials inside the bus, appellant Ram Singh got perplexed and tried to hide the carry bag under the seat.
On suspicion, police officials checked the carry bag possessed by appellant Ram Singh. It was found containing another carry bag with three transparent polythene packets therein. The transparent polythene ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -3- packets contained black coloured hard substance in the shape of sticks and balls, which on smell and on the basis .
of experience was suspected to be the 'Charas' (Cannabis).
PW-23 HC Vivek Kumar telephonically requisitioned electronic weighing scale from Police Post, Bakloh.
Passengers occupying seat Nos. 27 and 28 besides driver of and conductor of the bus were associated as independent witnesses. PW-5, Constable Ram Chand brought the rt electronic weighing scale to the spot from Police Post, Bakloh. The recovered 'Charas' was weighed and found 3.180 KG in weight. The recovered charas was packed in the carry bag from which it was recovered and the carry bag in turn was placed in a cloth bag, which was sealed with nine seals of mark "CF". The relevant columns of NCB Form Ext. W-19/C were filled. Seizure Memo Ext.
PW-1/A was prepared. 'Rukka' Ext. PW-10/A was sent to Police Station, Chuwari for registration of FIR, on the basis of which, FIR Ext. PW-14/A was registered. Appellant Ram Singh was formally arrested and the investigation was handed over to Inspector/SHO Mohinder Singh (PW-19).
The seized contraband along with sample seals and ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -4- accused were handed over to PW-19, who conducted re-
sealing proceedings on the spot by affixing three seals .
mark "CG". The contraband along with other collected evidence was deposited in the Malkhana of the police station.
3. On 22.11.2017, PW-19 moved an application of Ext. PW-19/D before the learned Judicial Magistrate, 1st Class Dalhousie along with inventory of the seized rt contraband Ext. PW-19/F with a prayer to certify the correctness of inventory, permit taking of photographs of seized items, allow drawal of samples of the seized contraband and to certify the list of samples. Proceedings under Section 52A of the NDPS Act were conducted. The learned Judicial Magistrate, 1st Class, Dalhousie passed order Ext. PW-19/H and issued certificate Ext. PW-19/J.
4. On 23.11.2017, appellant Sanju was arrested on the allegation that appellant Ram Singh had purchased the contraband from him for a consideration of Rs. 40,000/-.
On 26.11.2017, appellant Sanju allegedly suffered a statement under Section 27 of the Indian Evidence Act and ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -5- consequently got recovered currency notes worth 40,000/-
from a hidden place.
.
5. On completion of investigation, challan was prepared. The appellants were charged as under:-
Appellant Sanju:
That on 21.11.2017, around 10.45 AM, at place of Tunnuhatti barrier you and your co-accused Ram Singh Kumar conspired to carry/transport the charas/cannabis and in pursuance to such criminal conspiracy, 3 kilograms rt 180 grams charas/cannabis was recovered from the exclusive and conscious possession of your co-accused Ram Singh and thereby you committed an offence punishable under Sections 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and within the cognizance of this Court"
Appellant Ram Singh:
That on 21.11.2017, around 10.45 AM, at place Tunnuhatti barrier you and your co-accused Sanju conspired to carry/transport the charas/cannabis and in pursuance to such criminal conspiracy, you were found carrying 3 kilograms 180 grams charas/ cannabis. The cannabis/charas was recovered from your exclusive and conscious possession and thereby you committed an offence punishable under Sections 20 of the narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 29 the NDPS Act and within the cognizance of this Court."
6. In order to prove the charges against the appellants, prosecution examined PW-1, Vishal Kumar, ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -6- PW-2 Devinder Kumar as independent witnesses. PW-19, PW-10 and PW-23 were the spot witnesses. PW-5 was .
examined to prove the delivery of electronic weighing scale to the police officials on spot. PW-7 and PW-8 were examined to prove the delivery and receipt of special report under Section 57 of the NDPS Act in the office of SDPO, of Dalhousie. PW-11, HHC Naresh Kumar and PW-24, HC Virender werert examined to prove the statement of appellant Sanju under Section 27 of the Evidence Act and consequent recovery of currency notes. PW-14, LHC Dinesh Kumari proved the recording of FIR Ext. PW-14/A and deposit of the case property in the Malkhana. PW-20, Constable Diwan Singh had proved the carriage of sample of contraband from Police Station, Chuwari to SFSL, Junga on 23.11.2017 and also the receipt of SFSL report on 23.1.2018. PW-19, Inspector/SHO Mohinder Singh was examined as investigating officer of the case. Rest of the witnesses were formal in nature.
7. Both the appellants were separately examined under Section 313 Cr.P.C. None of them have chosen to lead defence evidence.
::: Downloaded on - 07/08/2023 20:41:48 :::CIS -7-8. Learned Special Judge, Chamba, vide impugned judgment has convicted both the appellants. While .
appellant Ram Singh has been convicted for commission of offence under Section 20 (b)(ii) (c ) read with Section 29 of the Act, appellant Sanju has been convicted for commission of offence under Section 29 of the Act. Both of the appellants have been sentenced to undergo rigorous imprisonment for eleven years each and to pay fine of Rs.
rt 1,10,000/- each. In default of payment of fine, each of them has been sentenced to undergo rigorous imprisonment for one year.
9. We have heard learned counsel for the parties and have also gone through the record carefully.
10. All the police officials, who were involved in the proceedings of search, recovery and seizure, have been examined as PWs 9, 10 and 23. These witnesses have been in unison with respect to the details of recovery effected from appellant Ram Singh. In addition, PWs 1 and 2 have also corroborated the case of prosecution as independent witnesses. According to PWs 1, 2, 9, 10 and 23, appellant Ram Singh was the occupant of seat No. 25 ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -8- of bus No. HP-73-4528, which had been stopped for checking by the police on 21.11.2017 at about 10.45 A.M .
at 'Tunnuhatti'. All these witnesses have stated that the appellant Ram Singh was holding a carry bag, which was checked by the police and 3.180 Kilograms of charas was recovered from it. The defence has not been able to elicit of any favourable material from the cross examination of above noted witnesses.
rt
11. The factum of recovery of the contraband from appellant Ram Singh has further been admitted by said appellant while answering the questions put to him during his examination under Section 313 Cr.P.C.
12. The allegation of recovery of 3.180 Kilograms of charas from exclusive possession of appellant Ram Singh has, thus, been proved by the prosecution beyond reasonable doubt.
13. Once the prosecution has been able to discharge the burden of proving the recovery of contraband from the exclusive possession of appellant Ram Singh, it was for him to have explained the reason(s) for such possession.
::: Downloaded on - 07/08/2023 20:41:48 :::CIS -9-Section 35 of NDPS Act places reverse burden on the accused, which reads as under:-
.
"35. Presumption of culpable mental state:-
(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact of that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation: In this section culpable mental state rt includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability."
14. Appellant Ram Singh has tried to get himself absolved from criminal liability by putting the blame on appellant Sanju. His version, during examination under Section 313 Cr.P.C, was that it was appellant Sanju, who had handed over the contraband to him. The burden placed on the accused under Section 35 of the NDPS Act cannot be said to have been discharged by merely alleging that the contraband was handed over to him by another.
Appellant Ram Singh had to probabilise the absence of ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -10- requisite mensrea which, in our considered view, he had miserably failed.
.
15. Shri Malay Kaushal Advocate learned counsel for the appellant Ram Singh raised a contention that the samples drawn during the conduct of proceedings under Section 52A of the Act were not proved to be the of representative samples of the entire bulk and in absence of such evidence, the appellant Ram Singh can at the most be rt held to in possession of 26 grams of charas. He made reference to the statement of PW-19 Inspector Mohinder Singh wherein nothing was stated in respect of making of the samples homogeneous. Learned counsel has further submitted that the substance (contraband) when recovered was in three separate polythene packets and was in the shape of balls and sticks. Reference has also been made to order Ext. PW-19/H, passed by the learned Judicial Magistrate, 1st Class, Dalhousie, in which also, the procedure for making the samples homogeneous was not mentioned.
::: Downloaded on - 07/08/2023 20:41:48 :::CIS -11-16. In order to test the argument so raised it will be necessary to take note of details of proceedings under .
section 52A of NDPS Act as undertaken in the instant case.
As per case of the prosecution, on 22.11.2017, PW-19 SHO/Inspector Mohinder Singh had produced the contraband before the learned Judicial Magistrate, 1st of Class, Dalhousie for proceedings under Section 52A of NDPS Act. He had submitted application Ext. PW-19/D rt with inventory of the ceased article as PW-19/F. Learned Judicial Magistrate, 1st Class, Dalhousie issued certificate Ext. PW-19/J and also recorded the proceedings of the day vide order Ext. PW-19/H. Two samples of Charas weighing 26 grams each were drawn and were sealed separately.
Similarly, the remaining bulk was again sealed and finally destroyed vide destruction certificate Ext. PW-19/R.
17. The SFSL Junga vide report Ext. PX has opined the sample examined by it to be that of 'Charas'. The sample examined by SFSL was drawn on 22.11.2017 during proceedings under section 52A of the NDPS Act and was sent to SFSL Junga through PW-20 vide RC No. 139/17 Ext. PW 14/E. The entire bulk has been branded ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -12- as charas on the basis of report Ext. PX. The scrutiny of such report reveals that the sample that was examined .
weighed 25.450 grams. To hold the sample to be representative of entire bulk, it had to be proved by the prosecution that the sample examined in fact was the true representative sample of entire bulk.
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18. NDPS Act was amended in the year 1989 and Section 52A was incorporated, which read as under:
rt "52A. Disposal of seized narcotic drugs and psychotropic substances.
(1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified.
(2) Where any [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 [narcotic drugs, psychotropic ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -13- 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 [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 of identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate rt 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.
(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, and any list of samples drawn under sub-section (2) and certified by the ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -14- Magistrate, as primary evidence in respect of such offence."
.
19. Since, the issue with respect to drawal of representative sample has been raised, we will be examining provision of section 52A of the Act keeping in view the specific context of the issue before us. The Central of Government has issued notification dated 16.1.2015 under section 52A (1) of the Act, whereby the Incharge of the rt Police Station or officer authorised under section 53 of the Act has been authorised to undertake proceedings under section 52A(2) of the Act. Under section 52A(2)(c) the officer authorised under sub-section 1 of section 52A can make an application to the magistrate to allow him to draw the representative samples and for certification of list of samples so drawn.
20. The Central Government in exercise of powers vested under sub-section (i) of Section 52 (A) of the Act, has issued standing order No.1 of 1989, prescribing the procedure to be followed while conducting seizure of the contraband. Section 2 of the standing order No.1 of 1989 provides for general procedure of sampling and storage etc. ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -15- The extracts of above standing order relevant to the issue in hand are as under: -
.
STANDING ORDER No. 1/89 SECTION II - GENERAL PROCEDURE FOR SAMPLING, STORAGE, ETC.
2.1. ..........
2.2. ..........
of 2.3. The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) where a rt quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn.
2.4. .........
2.5. .........
2.6. .........
2.7. .........
2.8. While drawing one sample (in duplicate ) from a particular lot , it must be ensured that representative samples in equal quantity are taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.
2.9. ..........
21. The sanctity of the Standing Order 1/89 came for consideration before the Supreme Court in Noor Aga v.
State of Punjab (2008) 16 SCC 417, wherein it was held as under:-
::: Downloaded on - 07/08/2023 20:41:48 :::CIS -16-"89. Guidelines issued should not only be substantially complied, but also in a case involving penal proceedings, vis-a-vis a departmental proceeding, rigours of such .
guidelines may be insisted upon. Another important factor which must be borne in mind is as to whether such directions have been issued in terms of the provisions of the statute or not. When directions are issued by an authority having the legal sanction granted therefor, it of becomes obligatory on the part of the subordinate authorities to comply therewith.
90. rt Recently, this Court in State of Kerala & Ors. v. Kurian Abraham (P) Ltd. & Anr. [(2008) 3 SCC 582], following the earlier decision of this Court in Union of India v. Azadi Bachao Andolan [(2004) 10 SCC 1] held that statutory instructions are mandatory in nature.
"91. Logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance of these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution."
22. If one goes through the Standing Order 1/89 and Section 52A (2) (c) of the NDPS Act, an apparent conflict arises as the former provides for sampling at the spot of seizure and sending the same to laboratory within ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -17- 72 hours whereas the latter provides for sampling before a Magistrate. The said conflict has been dealt with by the .
Hon'ble Supreme Court elaborately in Union of India (UOI) v. Mohanlal and Ors. (2016) 3 SCC 379. The relevant paragraphs of the said Judgment of the Hon'ble Apex Court are reproduced hereunder:
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15. It is manifest from Section 52-A(2)(c) (supra) that upon rt seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of
(a) certifying the correctness of the inventory,
(b) certifying photographs of such drugs or substances taken before the Magistrate as true, and
(c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -18- provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.
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18. Be that as it may, a conflict between the statutory provision governing taking of samples and the Standing Order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the rt authorities concerned instead of helping them in the discharge of their duties. The Central Government, therefore, will do well to re-examine the matter and take suitable steps in above direction."
23. Recently in Mangilal Vs The State of Madhya Pradesh 2023 INSC 634 after placing reliance on Noor Agha and Mohan Lal (supra) Hon'ble Supreme Court has observed as under:
"4. Sub-section (1) of Section 52A of the NDPS Act facilitates the Central Government a mode to be prescribed to dispose of the seized narcotic substance. The idea is to create a clear mechanism for such disposal both for the purpose of dealing with the particular case and to safeguard the contraband being used for any illegal purpose thereafter.
5. Sub-section (2) of Section 52A of the NDPS Act ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -19- mandates a competent officer to prepare an inventory of such narcotic drugs with adequate particulars. This has to be followed through an .
appropriate application to the Magistrate concerned for the purpose of certifying the correctness of inventory, taking relevant photographs in his presence and certifying them as true or taking drawal of samples in his presence of with due certification. Such an application can be filed for any one of the aforesaid three purposes. The objective behind this provision is to have an rt element of supervision by the magistrate over the disposal of seized contraband. Such inventories, photographs and list of samples drawn with certification by Magistrates would constitute as a primary evidence. Therefore, when there is non-
compliance of Section 52A of the NDPS Act, where a certification of a magistrate is lacking any inventory, photograph or list of samples would not constitute primary evidence.
6. The obvious reason behind this provision is to inject fair play in the process of investigation.
Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn. In due compliance of Section 52A(1) of the NDPS Act the Ministry of Finance (Department of Revenue) is sued a Notification No. G.S.R.339 (E) dated 10.05.2007 which furnishes an exhaustive manner and mode of disposal of drugs ending with a ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -20- certificate of destruction.
7. To be noted, the aforesaid notification was in .
existence at the time of the commission of the offence alleged in the case on hand, stood repealed with effect from 23.12.2022 vide Notification No. G.S.R.899 (E). In any case a notification issued in derogation of the powers conferred under sub- section (1) of Section 52A of the NDPS Act can of never contradict the main provision, particularly sub-Section (2). However, any guide line is sued by way of a notification in consonance with Section rt 52A of mandatorily.
the NDPS Act has to be followed
8. Before any proposed disposal /destruction mandate of Section 52A of the NPDS Act requires to be duly complied with starting with an application to that effect. A Court should be satisfied with such compliance while deciding the case. The onus is entirely on the prosecution in a given case to satisfy the Court when such an issue arises for consideration. Production of seized material is a factor to establish seizure followed by recovery.
One has to remember that the provisions of the NDPS Act are both stringent and rigorous and therefore the burden heavily lies on the prosecution. Non-production of a physical evidence would lead to a negative inference within the meaning of Section 114(g) of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act). The procedure contemplated through the notification has an element of fair play such as the deposit of the seal, numbering the containers in ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -21- seriatim wise and keeping them in lots preceded by compliance of the procedure for drawing samples. The afore-stated principles of law are .
dealt with in extenso in Noor Aga v. State of Punjab, (2008) 16 SCC417.
9. On the issue of seizure in the presence of Magistrate, we wish to place reliance upon the decision of this Court in Union of India v.
of Mohanlal, (2016) 3 SCC379:
"16. Sub-section (3) of Section 52-A requires rt that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in- charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct."
24. From above material and discussion what can be inferred is that though no specific procedure of drawal of sample by authorised officer under section 52A of the ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -22- Act has been prescribed, nonetheless the requirement of sample being representative is manifest especially keeping .
in view the stringent penal provisions and severe punishment(s) provided under the Act. The representative nature of sample, where the Charas has not been recovered as a single mass contained in a single of parcel/package, can be ascertained from the fact whether the entire bulk or quantity recovered in different shapes rt from different packets has been made homogeneous or not.
Notwithstanding the conflict in respect of stage of applicability of standing order No. 1/89 reference can still be had to instruction No. 2.3 which specifically provides that "the seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn.
25. The term homogeneous refers to a uniform structure or composition throughout. The homogeneous material has the same properties at every point. It is throughout uniform without irregularities. To make the substance like Charas, found in different masses/shapes and different containers/packages, homogeneous the only ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -23- process can be as envisaged under instruction No. 2.3 of standing order No. 1/89.
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26. Reverting to the facts of the case, it was PW-19 SHO/ Inspector Mohinder Singh, who had prepared the inventory of seized articles for the purposes of proceedings under section 52A of the NDPS Act and had also prepared of and moved application Ext PW-19/D before learned Judicial Magistrate First Class, Dalhousie with one of the rt prayers as under:
"(c) Allow drawing of representative samples in your presence and certify the correctness of the list of samples so drawn."
The certificate Ext. PW-19/J issued by learned Judicial Magistrate First Class recited as under:
"I allow the above application under sub section (3) of section 52A of ND&PS Act, 1985 and hereby certify the correctness of the enclosed inventory the enclosed photographs taken and list of samples drawn in my presence"
27. The provision of Section 52A (2)(c) clearly envisage the drawing of representative samples. To prove that the samples drawn in the case were representative of entire bulk, the burden was on prosecution. The only evidence lead by prosecution to prove such fact is the ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -24- statement of PW-19. It will be relevant to reproduce the extract of statement of said witness as under:
.
"On 22.11.2017, I moved an application for certification of correctness of inventory Ex. PW19/D and Ex. PW19/E, alongwith Annexure-I Ex. PW19/F, to which, learned LMIC Dalhousie passed order Ex. PW19/G and Ex. PW19/H and issued the certificate Ex.PW19/J after of resealing the case property with three seals of the court. Seal sample Ex. PW19/K was issued on separate piece of cloth. The photographs Ex. PW19/L-1 to Ex. PW-19/L-6 rt were clicked."
PW-19 was not at all cross examined on above aspect.
28. PW-19, thus, nowhere stated the he had drawn the samples much less about the mode and manner in which samples were drawn from entire bulk. Though, learned Judicial Magistrate First Class issued certificate Ex. PW-19/J certifying therein the list of samples drawn in his presence, however, no such list of samples has been proved on record. Even PW-19 has not deposed regarding the list of samples, if any. The nature of samples being representative of entire bulk is not made out from the material on record. In photograph Ex. PW 19/L-4 some pieces of substance are visible on the weighing scale and some on the table. Besides these three transparent ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -25- polythene packets containing the substance are also visible in the said photograph out of which only one packet .
appears to be open. If these pieces of substance were taken as samples, there is no evidence to show that those were taken out after making the entire bulk homogeneous or were in any other manner made homogeneous.
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29. Thus, from the entirety of evidence available on record, we are not convinced that the sample of 25.450 rt grams examined at SFSL, Junga was representative of entire bulk and hence the appellant Ram Singh cannot be held to have been found in conscious possession of 3.180 Kilograms of charas. The appellant can be held to in possession of 25.480 grams, which as per NDPS Act is small quantity.
30. The punishment involving small quantity of charas under Section 20(b)(ii) (A) is rigorous imprisonment for term extending up to one year or fine, extending up to Rs. 10,000/- or with both.
31. As regards the appellant Sanju, the prosecution case is depending upon the facts firstly that he was named to be the supplier of contraband by appellant Ram Singh ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -26- and secondly, when arrested, appellant Sanju had suffered a statement under Section 27 of the Indian Evidence Act in .
police custody on 26.11.2017 and on the basis of such confession statement, he had led to recovery of currency notes worth Rs. 40,000/-. The prosecution story reveals that the contraband was sold by appellant Sanju to of appellant Ram Singh for Rs. 40,000/- and thereafter, appellant Sanju had hidden the currency notes at a place rt which was known to him alone.
32. It is more than settled that the statement of co-
accused cannot bind the other and even if recorded under Section 67 of the NDPS Act is not admissible. Reference can be made to the judgment passed by Hon'ble Supreme Court in case of Tofan Singh Vs State of Tamil Nadu reported in 2021 (4) SCC 1. Thus, in absence of any corroborative evidence, the statement of co-accused implicating appellant Sanju will not help the prosecution case.
33. In the case in hand, in the first instance, the veracity of statement allegedly suffered by appellant Sanju under Section 27 of the Evidence Act is not beyond the ::: Downloaded on - 07/08/2023 20:41:48 :::CIS -27- shadow of doubt. The statement Ext. PW-11/A was allegedly recorded by PW-19 SHO/Inspector Mohinder .
Singh on 26.11.2017 in the premises of Police Station, Chuwari in the presence of PW-11 HHC, Naresh Kumar and PW-24, HC Virender. The prosecution witnesses have admitted that Police Station, Chuwari is not at a secluded of place, rather is in thickly habituated area. There is no explanation as to why the independent witnesses were not rt associated. Both PW-11 and PW-24 are the police officials.
Additionally, it can be seen that there is a huge discrepancy in the statement of relevant witnesses with respect to the time of recording of such statement, whereas, PW-11 has categorically stated that the statement Ext. PW-11/A was recorded at 11-11.30 A.M. on 26.11.2017. According to PW-19, said statement was recorded at 9.30 P.M. PW-24 HC Virender, when confronted with his statement under Section 161 Cr.P.C.
admitted that his said statement did not record the factum of disclosure statement made by the appellant Sanju, which again makes the police version highly doubtful.
::: Downloaded on - 07/08/2023 20:41:48 :::CIS -28-34. Even if it is assumed that the police had effected the recovery of currency notes at the instance of appellant .
Sanju, section 27 of Indian Evidence Act makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the crime, irrespective of the question whether it is of confessional or otherwise. The essential ingredient of the section is that the information given by the accused must rt lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence. Hence the only fact said to have been proved is the recovery of Rs. 40,000/- and the statement made by the appellant Sanju to that effect. However, in order to prove the guilt of appellant Sanju, such evidence was not sufficient. There was no evidence to prove that the amount recovered at the instance of appellant Sanju was proceed of crime for which he was charged.
::: Downloaded on - 07/08/2023 20:41:48 :::CIS -29-35. In view of what has been held above, we do not find any necessity to deal with other link evidence adduced .
by the prosecution.
36. In result, the Criminal Appeal No. 136 of 2021 titled Sanju Vs State of Himachal Pradesh is allowed. The impugned judgment and sentence in respect of appellant of Sanju is set aside and the said appellant is acquitted of all charges. rt
37. Criminal appeal No. 184 of 2021 titled Ram Singh Vs State of Himachal Pradesh is partly allowed in the aforesaid terms. Appellant Ram Singh is, thus, held guilty of offence under Section 20 of the Act for having been found in conscious possession of only small quantity of charas. Appellant Ram Singh has already undergone more than the maximum prescribed substantive sentence of imprisonment. Keeping in view the entirety of facts and circumstances of the case, appellant Ram Singh is sentenced to imprisonment already undergone. The judgment and sentence order passed by learned trial court is accordingly modified.
::: Downloaded on - 07/08/2023 20:41:48 :::CIS -30-38. Both the appellants are ordered to be released immediately, if not required in any other case. The .
Registry is directed to prepare the release warrants of the appellants.
39. In view of provisions of section 437-A of the Code of Criminal procedure the appellants are directed to of furnish their respective personal bonds in the sum of Rs.
25,000/- each with one surety each in the like amount to rt the satisfaction of 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 the leave, the appellants, on receipt of notice(s) thereof, shall appear before the Supreme Court.
40. Records be sent back. Pending applications, if any, also stand disposed of.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
7th August, 2023 Judge
(kck)
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