Krishan Kumar vs State of Himachal Pradesh

Surinder Singh, J.—The appellant was convicted by the learned trial Court for the offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ''the Act'', whereby he was sentenced to undergo rigorous imprisonment for a period of three years and also to pay a fine of Rs. 30,000/-, in default of payment of fine to further undergo simple imprisonment for a period of four months, for allegedly keeping in possession 400 grams of Charas, hence the present appeal by him.

In short, the prosecution story can be stated thus. On 4.6.2002, at about 8.00 p.m., police party headed by PW9 SHO Dabe Ram was on patrolling and traffic checking. The police party was busy in checking the vehicles at the place known as "Bagitar". A Maruti Car bearing registration No.HP-33-5128 came from the side of Kullu. It was stopped. The appellant was on the steering wheel. Identity of the appellant was asked to which he disclosed. PW9 SHO Dabe Ram demanded the documents of the vehicle, but he failed to produce it. As such, he was Challaned under the Motor Vehicles Act. Thereafter Dabe Ram aforesaid checked the vehicle and recovered a polythene packet from beneath the seat of the driver which contained 400 grams of Charas in the shape of small sticks.

ii) Two samples of 25 grams each were separated from the recovered stuff and sealed with seal impression "T". The remaining bulk was also sealed with the same seal and NCB forms in triplicate, one of which is Ext.PJ, were prepared by him. Specimen of the seal aforesaid was taken on a piece of cloth Ext.PA. Seal after its use was handed over to PW1 HC Ram Lal.

iii) The case property was taken into possession vide memo Ext.PB. Its copy was supplied to the appellant free of cost.

iv) Rukka, Ext.PE for the registration of the case, was sent through PW4 Constable Narinder Kumar.

v) Police also prepared the site plan Ext.PK of the place of alleged recovery.

vi) The appellant was also arrested. The grounds of arrest were informed to him in writing Ext.PC. Before his arrest his personal search was also conducted and the memo Ext.PD was prepared.

vii) The appellant and the case property were brought to the Police Station. Case property was handed over to PW8 MHC Kushal Kumar alongwith NCB forms, specimen of seal etc. for its deposit in the Malkhana.

viii) PW8 MHC Kushal Kumar entered the case property and the documents handed over to him in the Malkhana register and on 7.6.2002, one of the sample parcels alongwith specimen seal, NCB form and other documents were sent to CTL, Kandaghat vide RC No.35/02 through PW2 Constable Shankar Ram. After its deposit, he handed over its receipt on the RC back to the MHC.

ix) On 5.6.2002, special report was prepared and sent within the statutory period to the Superintendent of Police, Mandi through PW7 Lady Constable Champa Devi. Its copy is Ext.PG.

After the receipt of the chemical report Ext.PL and on completing the Challan, it was presented in the Court for the trial of the appellant for the offence aforesaid.

The appellant was accordingly charge-sheeted, tried and convicted as aforesaid, hence the present appeal.

Shri Dharamvir Sharma learned Counsel for the appellant, vehemently argued that there are material contradictions in the statements of the prosecution witnesses which make the prosecution case doubtful and further that the link evidence in the present case is not complete. He also ventilated that in any case of conviction the resin content in the recovered stuff may be taken into consideration in view of the judgment passed by the Division Bench of this Court in Dharam Pal v. State of HP, Latest HLJ 2007 (HP) 827 for passing the sentence as the offensive quantity falls within the definition of "small quantity" under the Act for which the maximum punishment is imprisonment for a period of six months and to pay a fine of Rs. 10,000.

Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence and further submitted that the link evidence in the present case is complete and the contradictions are not of the nature which go to the root of the case.

I have reappraised the evidence on record carefully and cautiously went through the statements of each and every witness.

During the trial, the appellant took up the stand of his false implication in his statement u/s 313 of the Code of Criminal Procedure. He also stated that his car was out of order, which was being pushed by one person who had been traveling with him and a labourer of the Project. Police took him as well as another person, who was sitting in his car to the Police Station. During night the passenger traveling with him was found to be relative of one of the police officials, thus let-off and whereas he was falsely implicated in this case.

PW9 SHO Dabe Ram fully corroborated the prosecution case and denied the suggestion that police apprehended the appellant alongwith one child sitting in the car and further that at that time two boys were pushing his car as it was out of order, but no case was put to him in cross-examination as to who was the child/other person, who was taken to the Police Station and later let-off nor such person was produced by him as a witness in defence to probablise the story as projected by him.

PW4 Constable Narinder Kumar who was accompanying PW9 SHO Dabe Ram corroborated the prosecution story and stated that the car in question had arrived at the spot. It was stopped and checked. Appellant failed to produce documents and on its further checking polythene packet was found below the driver''s seat, which contained Charas. The very place from where the Charas was recovered proved the animus of the appellant. Further, PW2 Constable Shankar Ram arranged for the weighs and measures to measure it. This fact he testified during trial and further stated that out of recovered stuff two samples of 25 grams each were separated and the NCB forms were also filled-in at the spot. Sample of seal was taken on a piece of cloth and the seal after its use was handed over to PW1 HC Ram Lal. Case property and the car were taken into possession vide memo Ext.PB and the Rukka was prepared by the SHO aforesaid which was handed over to him to deliver it in Police Station, Aut. He also identified the parcels Ext.P1 to P3 during the trial of the case and the appellant. He also denied in the cross-examination that two persons were pushing the car and one small child was sitting in front seat of the vehicle when the police stopped and further that both persons who were pushing the car fled away on seeing the police and also denied that no recovery of the Charas was effected from the appellant.

PW8 MHC Kushal Kumar categorically stated that the case property was deposited with him alongwith Maruti car and NCB forms etc. Its entry was made in the Malkhana register. On 7.6.2002, one of the samples alongwith specimen seal, NCB form and other documents were sent to CTL, Kandaghat vide RC No.35/02 through PW2 Constable Shankar Lal. Surprisingly, this statement remained unchallenged in the cross-examination.

In addition what PW2 Constable Shankar Ram stated as referred above, also testified that MHC aforesaid had handed over one sample parcel alongwith NCB form, specimen seal impression, copy of FIR, copy of seizure memo, which were taken by him vide RC No.35/02 to CTL, Kandaghat to which he deposited on the same day and after obtaining its receipt he handed it over to PW8. MHC as well as PW2 Shankar Ram stated that so long the case property remained with them, it remained un-tampered.

The perusal of the NCB form Ext.PL corroborates the fact that the case property was received in the laboratory through PW2 Constable Shankar Ram and the Chemical Examiner on receipt certified that the seals on the sample had tallied with the specimen seal sent separately and were found intact and unbroken. Thus, the recovery of contraband from the appellant and the link evidence, in the instant case stand proved in accordance with law.

The sample so examined in the laboratory contained resin 24.40%. On its microscopic examination, cystolithic hair was found present. Beam''s alkaline test was also positive. Thus, in the opinion of the Chemical Examiner, the exhibit contains the contents of Charas, which comes to 97 grams approximately in the recovered quantity of 400 grams.

As per definition, as contained in Clause (iii) of Section 2 of the Act, "Cannabis (hemp)" has three forms, one is ''Charas'', second is ''ganja'' and the third one is any mixture of any of the first two forms of cannabis. In the present case, the appellant was tried for having in his possession Charas which, according to the definition u/s 2 Clause (iii) (a) means separated resin, in whatever form whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as ''hahish oil'' or ''liqujid hashish''. From the definition, it is clear that it is only the resin content of the cannabis plant which is Charas.

The Central Government in exercise of the powers under clauses (viia) and (xxiiia) of Section 2 of the Act has issued a notification fixing upper limit of ''small quantity'' and the lower limit of ''commercial quantity'' of various narcotic drugs and psychotropic substances. Separate limits have been fixed in respect of cannabis resin, i.e., Charas or ''hashish'' as defined vide sub-clause (a) of clause (iii) of Section 2 of the Act, ''ganja'' as defined in sub-clause (b) of clause (iii) of the Act and ''mixture'' of different narcotic drugs and psychotropic substances as defined in sub-clause (c) of clause (iii) of Section 2 of the Act, vide Entries No.23, 55 and 239 respectively.

In the case in hand, the recovered stuff has been reported by the Chemical Examiner vide report Ext.PL to contain the contents of Charas as stated above and not the Charas. This is because of the presence of the resin in the stuff. The resin in the recovered stuff is opined to be 24.40%. About the rest of the contents, the report of the Chemical Examiner is silent. The analyzing conclusion is that the entire quantity of the recovered stuff was not Charas. In terms of the weight the Charas contents of the recovered stuff in 400 grams comes to nearly 97 grams which falls within the definition of "small quantity", as per the Notification of the Central Government which was applicable at that time. Therefore, in view of the judgment passed by the Division Bench of this Court in Dharam Pal v. State of HP (supra), while maintaining the conviction of the appellant for the offence u/s 20 of the Act, the sentence awarded by the learned trial Court on the assumption that the quantity which the appellant was possessing more than "small" and less than "commercial" quantity is substituted by the sentence of one month rigorous imprisonment and fine of Rs. 10,000/-, as the offence committed falls u/s 20(A) of the Act. In default of payment of fine the appellant shall further undergo imprisonment for a period of 15 days.

The appellant remained in the custody w.e.f. 4.6.2002 to 11.6.2002. As such, he shall be entitled for the set-off, in accordance with the provision of Section 428 of the Code of Criminal Procedure.

Learned Counsel for the appellant pointed out that the appellant was on bail and the fine amount of Rs. 30,000/-as imposed by the learned trial Court stands deposited. Therefore, it is directed that the appellant shall surrender before the learned trial Court on 20.12.2011 to serve out the remaining sentence, failing which the learned trial Court shall take coercive steps to apprehend him and commit him to prison inconformity with the judgment of this Court. The remaining amount of fine, i.e., Rs. 20,000/- be refunded to him. The appeal stands disposed of accordingly.