Lekh Raj vs State Of Himachal Pradesh

Sabina, J

Appellant has filed the appeal challenging the judgment/ order dated 2.11.2019/7.11.2019, passed by the Special Judge, Chamba, whereby he has been convicted and sentenced as under:-

Section 20 (b) (ii) (C) of Narcotic Drugs and Psychotropic Substances Act, 1985

Rigorous imprisonment for thirteen years and to pay a fine of Rs. 1,30,000/- (Rs. One lac and thirty thousand only). In default of payment of fine, he shall further undergo simple imprisonment for one year.

Prosecution story, in brief, is that on 16th November, 2017 ASI Govind Pal alongwith other police officials were present at Atala Dam side on Kihar Sanghni road for Nakabandi and patrol duty. At about 11.50 a.m, while they were checking vehicles, a pick-up bearing No. HP 73-2649 came from Sanghni side. The said vehicle was signaled to stop. On enquiry, driver disclosed his name as Vaneet Kumar. While they were checking the documents, a person came from Sanghni side towards Kihar, carrying a plastic sack on his right shoulder. On seeing the police party, the said person became perplexed and turned back and ran away. On suspicion, the said person was apprehended by the police officials at some distance. On enquiry, he disclosed his name as Lekh Raj. The sack of white colour on which ‘Indian Sucrose Ltd’ was written, was opened. In the sack one carry bag of light purple and orange colour with two strips of square pattern was found. On opening the said bag, hard substance in stick and ball form was recovered. On smelling, it transpired that the said hard substance was charas. On weighment, the contraband was found to be 7 kgs. alongwith the carry bag. The recovered contraband was put in the plastic sack. The plastic sack was put in cloth parcel and was sealed with seal bearing impression “M”. NCB form was prepared. Photographs were taken at the spot. Stationed House Officer, Police Station, Kihar was informed. The Stationed House Officer, ASI Surender Singh resealed the case property after checking the same with seal bearing impression “A”.

On 17th November, 2017 appellant was produced before the Court. On the same day, an application was moved for certification of inventory under Section 52A of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘the Act’). The Magistrate certified the inventory. The Magistrate opened the carry bag and out of the recovered contraband two samples of 26 gms each were taken out and placed on separate pieces of white paper which were then rolled up and placed inside two separate cloth parcels and were sealed with Court seal. The remaining contraband was kept in the same carry bag. The parcel was then sewed up and resealed with the Court seal. The samples as well as the remaining case property were handed over by the Magistrate to ASI Pradeep Kumar.

One sample was sent to the Forensic Science Laboratory for examination and as per report Ext.PX the sample was opined to be of “charas”.

After completion of investigation and necessary formalities, challan was presented against the appellant. Charge was framed against the appellant under Section 20(b)(ii)(C) of the Act.

Appellant did not plead guilty to the charge framed against him and claimed trial.

Prosecution examined 20 witnesses, in order to prove its case, during trial. Appellant when examined under Section 313 of the Code of Criminal Procedure, prayed that he was innocent and a false case has been registered against him.

Appellant did not examine any witness in his defence.

Learned counsel for the appellant has submitted that the sample examined by the Forensic Science Laboratory weighed 23.070 grams and there was no evidence on record to prove that the sample, which was examined in the laboratory, was representative sample drawn out of the recovered contraband from the appellant.

Shri Kunal Thakur, learned Deputy Advocate General, on the other hand, has opposed the appeal and has submitted that the prosecution had been successful in proving its case as the prosecution witnesses have duly supported the prosecution case.

As per the prosecution story, seven kilograms of charas was recovered from the bag carried by the appellant. As per ASI Govind Pal, PW-20, recovered contraband was in the shape of sticks and balls shape. The testimony of PW-20 in this regard is corroborated by the other spot witness i.e. PW-13 HHC Manohar Lal. PW-10 Vaneet Kumar, independent witness, did not support the prosecution case during trial.

Ex.PW-18/D is the order passed by the Magistrate dated 17th November, 2017. A perusal of the said order reveals that the parcel containing contraband had been produced before him on the said date with six seals impressions of seal ‘M’ and 3 seal impressions of seal ‘A’. The parcel weighed 7 kg. 192 grams. When the parcel was opened, it contained dark coloured substance in the shape of balls and sticks. Out of the said contraband, two samples of 26 grams each were separated and made into two separate cloth parcels and the remaining contraband had been put into the opened parcel after replacing the contraband in the carry bag. The resealed parcel alongwith sample parcels were handed over to ASI Pradeep Kumar.

Thus, as per the evidence on record, the seized contraband was in the shape of balls and sticks. Two samples, weighing 26 grams each, were drawn by the Magistrate, Chamba. PW-18 ASI Pradeep Kumar has not deposed anything about the mode and manner, in which the samples were drawn from the contraband. Magistrate Ekansh Kapil, who had drawn the samples, has not been examined as a witness during trial. However, the order passed by the Magistrate Ex.PW-18/D has been carefully perused. A perusal of the said order also does not show that while drawing the samples the recovered contraband was made into a homogeneous mixture and thereafter representative samples were drawn. The recovered contraband were in the shape of stick and balls and in such a situation it was incumbent upon the prosecution to establish that the representative samples had been drawn out of the entire recovered contraband. There is nothing on record to establish that any specific procedure was adopted for drawing a representative sample. In this situation the prosecution story becomes doubtful.

Ext.PX is the report of the Forensic Science Laboratory. A perusal of the same reveals that one sealed cloth parcel was received and on opening the said parcel, it was found that the substance was in the form of thick and thin sticks and the net weight of the substance was 23.070 grams. After examination, it was opined that the exhibit was extract of cannabis and sample of charas. Thus, the contraband which reached the Forensic Science Laboratory for examination weighed 23.070 grams and was in the shape of thick and thin sticks, whereas from the statements of the spot witnesses, it is evident that the contraband was recovered in the shape of sticks and balls.

Since in the present case there is no evidence on record to establish that representative samples, out of the entire recovered contraband, had been drawn, hence, it can be said to be a case of recovery of only 23.070 grams of charas.

In Khek Ram Vs NCB, Criminal Appeal No. 450 of 2016 decided on 29.12.2017, Division Bench of this High court held as under:

“78. Additionally and more importantly, we notice that the entire bulk of the alleged contraband was not sent for analysis and only four samples of 25 grams each were, in fact, sent for analysis. Thus, taking the prosecution case at best what is proved on record is the recovery of only 100 grams of charas from the possession of the accused. Admittedly, the alleged contraband was in different shapes and sizes in the form of biscuits and flat pieces.

Therefore, in this background, the question arise as to whether the entire bulk of 19.780 Kgs as was recovered, in absence of there being chemical examination of whole quantity, can be held to be charas.

This question need not detain us any longer in view of the authoritative pronouncement by the Hon’ble Supreme Court in Gaunter Edwin Kircher vs. State of Goa (1993) 3 SCC 145, wherein the Court was dealing with the alleged recovery of two cylindrical pieces of Charas weighing 7 grams and 5 grams each. However, only one piece weighing 5 grams was sent for chemical analysis and was established to be that of Charas. The learned trial Court convicted the accused by taking the total quantity to be 12 grams and such finding was affirmed by Hon’ble Supreme Court, however, reversing such findings.

In State Vs Naresh Kumar, Criminal Appeal No. 782 of 2008 decided on 28.6.2019, Division Bench of this High court held as under:

“23. As quantum of recovery is concerned, as per prosecution case, 1 Kg. 500 grams charas was recovered from the respondent and after taking out two samples of 25 grams each, the remaining contraband was sealed in parcel and samples were also sealed in two different parcels. Bulk of charas claimed to be recovered from the respondent is Ext.P2 but during investigation and thereafter also, only one sample of 25 grams of charas was sent to CFSL Chandigarh for chemical analysis and as per chemical analyst report Ext. PX the sample was found to be of charas.

As per ratio laid down by the Apex Court in Gaunter Edwin Kircher vs. State of Goa, reported in (1993)3 SCC 145 the amount of contraband, recovered from the respondent, cannot be held more than that which was sent to the Chemical Analyst and was affirmed by the Forensic Science Laboratory as a contraband. The failure to send the entire mass for chemical analysis would result to draw inference that said contraband has not been analyzed and identified by CFSL as the charas.

Learned Single Judge of this Court in Dhan Bahadur vs. State of H.P. reported in 2009(2) Shim.L.C. 203, after relying upon the judgment in Gaunter Edwin Kircher’s case supra, has held that only analyzed quantity of contraband can be said to have been recovered from the respondent. Applying the ratio of law laid down by the Apex Court and followed by learned Single Judge of this Court, we find that in the present case quantity of recovered contraband is to be taken as 25 grams only and therefore, respondent can be convicted for recovery of 25 grams charas from his conscious possession for which punishment has been provided under Section 20(b)(ii)(A) for a term which may extend the six months or with fine which may extend to Rs.10,000/- or/with both.

In State of HP Vs Sultan Singh and Others Criminal Appeal No. 324 of 2008, decided on 22.4.2016, Division Bench of this High court held as under:

“16. Charas was recovered from three different packets. PW-8 Constable Bhupinder Singh has categorically admitted in his cross-examination that IO did not mix up contents of the packets Ext. P2 to P4. PW-10 ASI Ghanshayam himself has admitted in his cross-examination that he did not mix up the contents of three polythene packets. IO should not have continued with the preparing of documents till the police official, who was sent to get independent witnesses, came back. IO should have made entire contraband homogenous for the purpose of chemical examination.”

In State of Himachal Pradesh Vs Sohan Singh, Criminal Appeal No. 259 of 2009 decided, on 23.12.2015, Division Bench of this High court held as under:

“16. We have not understood why IO has sent PW-2 Hitender Kumar to an area which was not thickly populated instead of sending towards an area which was thickly populated to call independent witnesses. Case of the prosecution is that accused was given option to be searched before a gazetted officer or a Magistrate. He opted to be searched by the police. Consent memo is Ext. PW-1/A. According to the prosecution case, PW-2 Hitender Kumar was present on the spot and he was the person who has taken Rukka to Police Station. However, in his cross-examination he has denied that Ext. PW-1/A was prepared in his presence. He has also admitted that Ext. PW1/E was also not prepared in his presence. Thus, the presence of PW-2 Hitender Kumar at the spot is doubtful. Rukka was prepared at 11.30 pm by IO PW-12 Kishan Chand but was sent at 12.30 pm. According to HHC Padam Singh, samples were not taken homogenously. Few sticks were taken. According to PW12 Kishan Chand from all the four packets, samples were drawn. There is variance in the statements of PW-1 Padam Singh, PW-2 Hitender Kumar and PW-12 Kishan Chand whether sample was prepared homogenously or not entire contraband was required to be mixed homogenously for preparing samples to be sent for chemical examination to SFL.”

Thus, from the evidence available on record, we are of the opinion that the sample weighing 23.070 gram of charas examined by the Forensic Science Laboratory was not the representative sample of the entire bulk and therefore appellant cannot be held to have been found in illegal conscious possession of 7 Kgs. of charas and he can be held to be in possession of 23.070 gram of charas or at the most 52 gram of charas by including the weight of other samples, which, as per the Act, would fall within the definition of small quantity.

Accordingly, appellant is held guilty of offence under Section 20 of the Act for having been found in conscious possession of only small quantity of charas and is sentenced to undergo rigorous imprisonment for one year. The impugned judgment of conviction and order of sentence passed by the learned trial Court is accordingly modified.

The appellant was arrested on 16.11.2017. He remained in judicial custody till the conclusion of trial and thereafter is undergoing sentence. Since the appellant has already undergone much more sentence than could be inflicted upon him, the appellant is ordered to be released immediately, if not required in any other case. The Registry is directed to prepare the release warrant forthwith.

In view of the provisions of Section 437 of Code of Criminal Procedure, 1973, appellant is directed to furnish his personal bond in the sum of Rs. 25,000/- with one surety in the like amount before the 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 leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court.

The appeal is accordingly disposed of. Records be sent back. Pending applications, if any, also stand disposed of.