Desh Raj vs State of H.P.

Surinder Singh, J.—The appellant herein referred to "the accused" hereafter was convicted by the learned trial court in Sessions trial No. 51 of 2010 dated 28.3.2011 u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ''the Act'' for keeping in possession "non commercial quantity" of charas as such was sentenced to undergo imprisonment for a period of three years and to pay a fine of Rs. 20,000/- with the default clause. Hence the present appeal by the accused.

In short, the prosecution story, as emerges from the evidence on record, can be stated thus. On 27.11.2010 PW8 H. C. Deva Nand along with PW1 Constable Som Parkash and PW2 Constable Ravinder Kumar were on patrolling in the area of "Jassour Garh". They had left the police Station around 4 p.m. and entry to this effect was made in the daily-diary Ext. PW1/A. Around 9.45 p.m. when police party reached 300-400 meters ahead of Zero- Point Jassour, they noticed accused coming from opposite side. On seeing the police party, he tried to escape. Police noticed a bag in his right hand. On getting suspicious, he was over-powered. His identity was asked. It was a secluded place. There was no inhabited area in and around thus, no independent witness was available.

It is alleged that in the presence of Constables Som Parkash and Ravinder Kumar aforesaid PW8 HC. Deva Nand gave his personal search to the accused, including investigation kit carried by them but no offensive matter was recovered. To this effect memo Ext. PW1/B was executed.

Accused was apprised of his legal right to satisfy the compliance of Section 50 of the Act in writing Ext. PW1/C. Accused opted to be searched by the police party. To this effect he also gave his consent in writing Ext. PW1/C.

PW8 HC Deva Nand carried the search of blue coloured bag which was held by the accused in his hand and recovered charas in the shape of sticks. The entire recovered stuff was also sealed in one parcel with the seal producing the impression of English letter ''T'' in a piece of cloth Ext. PW1/D. NCB forms in triplicate one of which is Ext. PW3/D were prepared. Facsimiles of seal was also taken against the relevant column of NCB forms and also on a apiece of cloth.

The case property was taken into possession vide memo Ext. PW1/E in the presence of witnesses aforesaid. Copy of seizure memo was supplied to the accused free of costs.

Ruka Ext. PW8/A was sent through PW1 constable Som Parkash for registration of the FIR. The site plan of the place of alleged recovery Ext. PW8/B was also prepared. Accused was arrested and grounds of arrest were informed to him in writing Ext. PW2/A.

The case property and the accused were produced before Inspector SHO B.M. Sharma. Case property was re-sealed by the SHO with seal impression ''D'' in the police Station in the presence of MHC and Investigating Officer, Memo Ext. PW3/C was also prepared to this effect. Facsimile of the seal was also taken on NCB forms. These proceedings were recorded in memo Ext. PW3/B.

Case property was handed over to PW8 Deva Nand. He deposited it with PW3 MHC Sanjeev Kumar and an entry was made in the malkhana register. The abstract whereof is Ext. PW3/E.

Special report was also sent to the superior officer within the statutory period.

On 29.11.2010, the recovered sealed parcel along with NCB forms, sample of seal, copy of seizure memo, copy of FIR were sent to FSL Junga through PW4 Constable Madan Kumar vide RC Ext. PW3/J which were deposited by him in the laboratory on the same day along with the police docket. As per report Ext. PA, it tested positive for charas and quantity of resin of cannabis plant was found to be 20.09 % weight in weight.

After recording the statements of the witnesses and completing the challan, it was presented in the court for the trial of the accused.

Accused was accordingly charge sheeted, tried, convicted and sentenced as aforesaid.

Shri K.B. Khajuria, Learned Counsel for the accused vehemently argued that in the instant case link evidence is not complete, independent witnesses were not joined and the seal with which the case property was sealed by the I.O. was not produced in the Court which renders the entire prosecution story a suspect.

Contra Shri J.S. Guleria, learned Assistant Advocate General supported the impugned judgment of conviction and sentence and argued that link evidence is complete. The place from where the alleged recovery was effected, was a lonely and secluded place and further that production of the seal used is not a sine qua non and that there is no allegation against any of the official witnesses to implicate the accused in a false case.

I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record.

PW8 HC Deva Nand has supported the case of the prosecution verbatim. He was subjected to lengthy cross examination but nothing material could be extracted. The entire stuff which was allegedly recovered was deposited in the malkhana and sent for examination to the Forensic Science Laboratory, after its examination it was received back through constable Madan Kumar in the police station and its entry was so made in the malkhana, abstract of which is Ext. PW3/E. During the trial, it was produced before the Court. It contained five seals of forensic science laboratory and also the seals used at the time of the recovery as well as resealing. When it was opened in the Court, all the witnesses testified that the said contraband was recovered from the possession of the accused. It stands duly identified. In cross-examination none of the prosecution witnesses could be shattered with respect to the recovery and the accused in his statement u/s 313 of the Code of Criminal Procedure only stated that no charas was recovered from him. He did not impute any allegation of any malice to falsely implicate him. The identity of the case property examined by the chemical examiner also stands established as per the details of the report. The chemical examiner also certified that the seals used on the samples corresponded with the sample of seal sent separately as well as with the facsimiles of the seals contained in the NCB forms.

PW1 Som Parkash and PW2 Ravinder Kumar supported the version of PW8 H.C. Deva Nand. There is no rule of law that the statements of the official witnesses cannot be accepted if it inspires confidence.

On re-appraisal of evidence I do not find any material contradiction which goes to the root of the case making the prosecution story a suspect.

Further recovery was effected during the intervening night of 27/28.11.2010 from an open place. It stands established that there was no inhabited area in and around. This fact also stands corroborated by the site plan Ext. PW8/B. Otherwise also on facts in this case, there is no legal requirement of satisfying the provisions of Section 100(4) of the Code of Criminal Procedure and producing the seal during the trial. The link evidence is complete.

In view of the afore-stated position, the points raised are accordingly answered. I do not find any fault in the conviction of the accused.

In so far as sentence is concerned, the accused has been convicted for "non-commercial quantity", thus it is required to be commensurate with the offensive quantity in recovered substance from the accused.

As per prosecution case, recovered stuff was 1 kg and the resin of the cannabis plant as per analysis report Ext. PA was found 20.09% weight in weight. Thus, keeping in view the ratio of Division Bench of this Court in Dharampal versus State of H.P. along with connected matter (Latest HLJ 2007 (HP) 827), the accused is required to be sentenced for the quantity of resin content in the recovered stuff which comes to approx. 209 grams which is "non-commercial quantity". The accused is not a previous convict. Thus to maintain consistency in sentence, the substantive sentence of the accused is reduced to two years instead of three years, as awarded by the learned trial Court, without disturbing the fine and default clause.

With this modification in sentence, appeal is accordingly dismissed.

The learned trial Court is directed to send modified warrant to the Superintendent Jail concerned.

Send down the record forthwith.