Jyoti Parkash vs State of Himachal Pradesh

Surinder Singh, J.—This jail appeal filed by the Appellant-convict against the judgment of his conviction and sentence passed by the learned trial Court in Sessions trial No. 9 of 2010, on 8.11.2010/ 18.11.2010, whereby he was convicted for the 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 four years and to pay a fine of Rs. 25,000/-, in default of payment of fine, to further undergo imprisonment Whether reporters of the local papers may be allowed to see the judgment? for a period of six months, allegedly for keeping in possession approximately 182 grams of Charas in the recovered stuff of 1 Kg.

Since the Appellant had requested to provide counsel to represent him in the instant appeal, vide order dated 4th January, 2011 Mr. Tarlok Chauhan, Advocate was appointed as legal-aid counsel for the Appellant. Copy of the paper book was ordered to be supplied to him and the appeal was admitted for hearing. An opportunity was also accorded to inspect the record.

Shri Tarlok Chauhan, learned Counsel for the Appellant has made his submissions that in view of the contradictions appearing in the statements of the official witnesses, learned trial Court could not have convicted the Appellant. He led me through the evidence on record and also ventilated that the link evidence in the instant case is not complete. He further argued that in any case of conviction, sentence imposed by the learned trial Court, is too excessive keeping in view the resin contents in the recovered stuff, which requires to be modified, commensurate to the possession of the offensive matter.

Shri P.M. Negi, learned Deputy Advocate General has supported the impugned judgment of conviction and sentence.

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

Evidence on record proves that PW7 HC Varinder Singh was heading the police patrol party and was present on 17th January, 2010 at about 7.30 p.m., at the place known as ''Koti Chowk. In the meantime, Scooty bearing No. PB-08AF-0206 came from the opposite site. It was stopped. The said Scooty was being driven by the Appellant, who was identified by PW7 aforesaid even during the trial of the case. On seeing the police, Appellant got perplexed and tried to run back. Thus, police got suspicion, therefore, he was nabbed alongwith Scooty and was apprised of the fact that they were suspicious and he has a right to be searched before the Gazetted Officer or before the Masgistrate, vide memo Ext.PW5/A, the Appellant consented to be searched by the police present there. Since the place of recovery was lonely place, even shops were found closed and No. independent witness was present, therefore PW7 HC Virender Singh conducted the search of the Appellant in the presence of PW5 HC Kartar Singh and PW6 C. Mohd. Aslam. They also corroborated this version. On his personal search, PW7 HC Virender Singh found two military coloured pads wrapped on his each of the legs under the knees, which were removed and on opening, both pads were found containing Charas in the shape of sticks. On its weightment, it came to be 1 Kg. The whole recovered stuff was put into same pads and then packed in one parcel and sealed with the seal impression of English letter "A". The facsimile of the sample of seal was also taken on a piece of cloth Ext.PW5/C. Signatures of PW5 HC Kartar Singh and PW6 C.Mohd. Aslam were obtained on the sample. NCB forms in triplicate were prepared on the spot. Seal after its use was handed over to PW6 Constable Mohd. Aslam. Specimen of seal used at the time of sealing the sample parcel were also affixed on the NCB forms in triplicate, out of which one is Ext.PW1/D.

It is also proved that recovered stuff was taken in to possession vide seizure memo Ext.PW5/D. PW7 HC Virender Singh identified the parcel of Charas Ext.P1, Pads Exts.P2 and P3 and the Charas Ext.P4 during the trial of the case. The above evidence remains unchallenged.

Case property was deposited with PW2 MHC Pawan Kumar after its resealing by PW1 ASI Mukesh Kumar on the same day alongwith specimen seal impressions "A" and "H", NCB forms in triplicate and recovery memo etc. Its entry was made in the Malkhana register the abstract whereof is Ext.PW2/A. MHC aforesaid also stated that the entire case property alongwith recovery documents aforesaid was sent to the Forensic Science Laboratory Junga through LHC Joginder Singh vide RC No. 6/10 copy whereof is Ext.PW2/B. After depositing the case property in the FSL Junga, Joginder Singh aforesaid handed over the receipt to PW2 MHC Pawan Kumar on his return to the Police Station. On the examination, of the recovered stuff, the quantity of resin was found to be 18.06% weight-in-weight of Cannabis and the recovered stuff approximately comes to 120 graMs.

In the instant case, link evidence is complete from the time of its receiving till examination in the laboratory.

The report of the analysis reveals that various scientific tests were conducted by the Chemical Examiner. He also found the presence of cannabinols including the presence of tetrahydrocannabinol in the stuff examined by him. In addition, he also noticed the presence of cystolithic hair and also came to the conclusion that quantity of the resin to the extent of 18.06% w/w in the stuff examined by him and in his opinion, exhibit contains the contents of cannabis and sample of Charas.

The case of the Appellant is denial simplicitor. No. evidence in defence was led. Even nothing favourable could be extracted in the cross-examination of prosecution witnesses. Association of independent witness was not imperative. The statements of official witnesses are confidence inspiring.

Thus, on the critical analysis of the evidence discussed above, which is duly corroborated in material particulars on record, I am of the view that No. fault has been committed by the learned trial Court for convicting the Appellant for the offence aforesaid, for keeping in his possession the recovered stuff to the extent of 120 grams and the resin contents of Cannabis was found to be 18.06% w/w. Thus, in view of the judgment of the Division Bench passed by this Court in Dharam Pal and Anr. v. State of Himachal Pradesh Latest HLJ 2007 (HP) 827 the Appellant has to be convicted for keeping in possession to the extent of the Charas found in the recovered stuff.

For the imposition of the sentence, the quantity of the narcotic found in possession of the Appellant in neutral substance has to be taken into consideration and not the entire stuff recovered. In the instant case, recovered quantity of Charas is approximately 182 grams, which is less than commercial quantity, thus the sentence passed by the learned trial Court appears to be excessive, therefore, it is reduced to two years instead of four years as imposed by the learned trial Court without disturbing the fine and default clause. Ordered accordingly.

With the above modification in sentence, the appeal filed by the Appellant is dismissed. The Appellant is in jail undergoing the sentence, therefore, learned trial Court is hereby directed to send amended warrants to the Superintendent Jail concerned in conformity with the judgment passed by this Court.

The matter stands disposed of. Send down the records.