Gian Bahadur vs State of H.P.

Surinder Singh, J.—Appellant, hereinafter to be referred as "the accused" was convicted for an offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ''the Act", and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 50,000/-, in default of payment of fine to further undergo simple imprisonment for a period of one year, for allegedly keeping in possession of 37.56% W/W of resin of the Cannabis plant, i.e., Charas, which comes out to be around 263 grams in the recovered stuff of 700 grams, hence the accused directed the present appeal.

In short, the prosecution case can be stated thus. On 27.7.2009 at 2.00 p.m., P.W. 8 Sub Inspector Pawan Kumar accompanied by Constables Joginder Singh (P.W. 1) and Vijay Kumar, were going on foot from village Choj towards Manikaran. They were confronted with the accused on the way, who was carrying a polythene bag and having the words written as ''Void Industries'' over it. His identity and whereabouts were asked. He was a Nepali citizen and was staying with his friend at village ''Kasol''. Police asked the accused to show the contents of his bag, but he started dilly-dallying. Thus getting suspicion and finding no independent witness at the place, in the presence of Constables Joginder Singh (P.W. 1) and Vijay Kumar, who were associated as witnesses, conducted the search of the bag and recovered 700 grams of substance, which was allegedly Bhang/Charas. The entire recovered stuff was sealed with the seal "M". The seal impressions were also taken on separate pieces of cloth and the case property was taken in possession vide memo Ext. P.W. 1/E.

2(ii) N.C.B. forms in triplicate were also filled-in on the spot. The facsimiles of the seal were also taken against its relevant column.

2(iii) Ruka Ext. P.W. 8/A was sent to the Police Station, which culminated into FIR Ext. P.W. 9/A.

2(iv) Police also prepared the site plan Ext. P.W. 8/B of the alleged place of recovery. The accused was arrested. He was informed of the grounds of arrest.

2(v) On 28.7.2009 at about 8.30 a.m. HHG Hukam Ram handed over the case file after registration of the case to P.W. 8 SI Pawan Kumar. Thereafter the case property was produced before P.W. 3 Inspector/SHO Prem Dass. He resealed the parcel with three seals of English letter producing impression "H". Sample of seal was also taken on a piece of cloth and facsimiles of the seal were also taken on the N.C.B. forms.

2(vi) The case property was handed over by the said SHO alongwith N.C.B. forms in triplicate, sample of seals and seals "M" and "H" to P.W. 4 MHC Ram Krishan, which was deposited in the Malkhana and its entry was made in the Malkhana register, abstract of which is Ext. P.W. 4/A.

2(vii) On 29.7.2009, vide RC No. 99 of 2009 Ext. P.W. 4/B the parcel was sent for analysis through P.W. 5 Constable Pritam Singh to Forensic Science Laboratory, Junga alongwith police docket and obtained the receipt on the back of the R.C.

2(viii) The Chemical Examiner analyzed the sample. The examination report is Ext. P.W. 8/D. The entire mass of the recovered stuff was opined to be resin, extract of Cannabis Plant, i.e., the Charas. After examination, the entire stuff was resealed with the seal of FSL-II and returned with the examination report referred to above.

The special report was sent to the police official superior within statutory period.

On the completion of the Challan, it was presented in the Court for the trial of the accused.

The accused was accordingly charge-sheeted. However, he pleaded not guilty and claimed trial.

To prove its case, the prosecution examined its witnesses. The statement of the accused u/s 313 of the Code of Criminal Procedure was also recorded. His case was denial simplicitor. When called upon to enter into his defence, he did not lead any evidence in defence.

At the end of trial, he was convicted and sentenced as aforesaid. Hence the present appeal.

Shri Rakesh Jaswal, learned Counsel for the accused, vehemently argued that the police did not make any attempt to associate the independent witnesses and further that there is no evidence on record to show as to where the entire stuff was kept by the police after its seizure during the night. He also ventilated that the statements of the official witnesses cannot be believed to pass the conviction against the accused.

Contra, Shri A.K. Bansal, learned Additional Advocate General, for the Respondent-State supported the impugned judgment of conviction and sentence.

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

Admittedly, as per the case of the prosecution, the alleged recovery is from the open place and it is a chance recovery as aforesaid and the accused was confronted by the police while walking on the road at the place aforesaid.

According to P.W. 1 Constable Joginder Singh and P.W. 2 HHC Hukam Ram, they waited for the independent witnesses to pass through on that bridle path, but no body came and P.W. 8 SI Pawan Kumar stated that no independent witness was available and it is also a fact where the accused was apprehended, was a secluded place. Therefore, in these circumstances, the benefit to which the learned Counsel wanted to derive by citing the judgment of the Apex Court in Ajmer Singh Vs. State of Haryana, cannot be made available.

As a matter of fact, the testimony of police personnel should be treated in the same manner as the testimony of any other witness and there is no principle of law that without corroboration by the independent witnesses their testimony cannot be relied upon. The Apex Court in Karamjit Singh v. State 2003 SC 3011 observed that the presumption that a person acts honestly applies, as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depends upon the facts and circumstances of each case and no straight jacket formula can be laid down.

In the instant case on the close scrutiny of the statements of official-witnesses, I find that there is consistency in the statements of official witnesses leaving no doubt to falsely implicate the accused. P.W. 8 SI Pawan Kumar has mutatis-mutandis supported the case of the prosecution with respect to the alleged recovery from the accused. This has also been testified by P.W. 1 Constable Joginder Singh and P.W. 2 HHG Hukam Ram, which is duly supported by the recovery memo Ext. P.W. 1/E. They categorically stated that the stuff which was recovered from the accused was sealed with seal producing the impression of English letter "M" and in the same manner, on the next day it was produced before P.W. 3 Inspector/SHO Prem Dass, who also testified that he resealed it with three seal impression "H" and deposited it with P.W. 4 MHC Ram Krishan. P.W. 4 aforesaid admitted this fact and also produced the rojnamcha register and its abstract is Ext. P.W. 4/A, which shows that the case property alongwith N.C.B. forms in triplicate and sample of seals were deposited with him.

Further, it is also proved that on 29.7.2009 without wastage of time vide R.C. Ext. P.W. 4/B the entire stuff was sent to the Forensic Science Laboratory, for its examination alongwith N.C.B. forms and sample of seals and police docket. Even the N.C.B. forms bear the facsimiles of seals and as per report, the seals tallied with the sample of seals and the entire stuff which was sent was examined and tested positive for Charas. There is no cross-examination to the statement of the Investigating Officer that the recovered stuff was replaced and there is also nothing on record to show any malice of the police against the accused to implicate him in a false case. Therefore, the argument that the police did not show as to where the recovered stuff was kept throughout the night by the Investigating Officer, is of no consequence.

The testimonies of the official witnesses are found to be inspiring confidence and the same leave no manner of doubt with respect to the recovery of the contraband from the possession of the accused, as such the recovery of Charas stands proved from the accused, as alleged.

Insofar as the sentence is concerned, Shri Jaswal vehemently argued that the resin contents of Cannabis Plant was 37.56% W/W in the whole stuff, which comes to 263 grams, which is less than the "commercial quantity" and more than the "small quantity". Therefore, the sentence passed by the learned trial Court is not commensurate with the recovered quantity and is excessive.

I have examined this argument. True it is that on the basis of law laid down by the Division Bench of this Court in Dharam Pal v. State of HP 2007 HLJ 827, the quantity of resin has to be considered for determining the quantity of Charas. Therefore, keeping in view the fact that the Charas in the recovered stuff comes to 263 grams, the sentence passed by the learned trial Court appears to be a bit excessive. Therefore, it is modified to the extent that the accused shall undergo substantive sentence of imprisonment for a period of two years and six months and to pay a fine of Rs. 30,000/- and in default of payment of fine to further undergo simple imprisonment of six months for the commission of offence punishable u/s 20(b)(ii)(B) of the Act, in lieu of five years and a fine of Rs. 50,000/- as imposed by the learned trial Court. Thus, while maintaining the conviction, the sentence is modified to the above extent. With this modification in sentence, the appeal is dismissed.

The learned trial Court is directed to send amended jail-warrant to the Superintendent of concerned jail in conformity with this judgment.

Send down the records forthwith.