Parmod Kumar vs State of Himachal Pradesh

Surinder Singh, Judge

Convict Parmod Kumar is in appeal. He has been convicted by the learned trial Court in Sessions Trial No. 20 of 2008, whereby he has been sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 20,000/-with default clause, for the offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short, ''the Act'', allegedly for keeping in possession of 254.80 grams of Charas, in the recovered stuff of one kilogram, which has been challenged by him in the present appeal. Precisely, the prosecution case as emerges from the evidence can be stated thus. On 29.2.2008, PW 9 Head Constable Krishan Lal of Police Station, Gohar was heading a police party and had put a Naka at National Highway-21 near "Pandoh Dam". Around 12.45 p.m., a private bus ("Kanika Service") bearing registration No. HP-33-9044 came from Kullu side. It was stopped at the Naka. Inder Pal was its Driver whereas PW2 Sanjay Kumar was the Conductor. They came out from the bus. PW 9 Head Constable Krishan Lal joined them as independent witness. During checking of the passengers, the appellant, hereinafter referred to as "the accused" was found sitting on seat No. 23, holding a bag Ext. P-2, which was searched. On opening its one of the pockets, handkerchief Ext. P-8 was recovered. The second pocket contained pant Ext. P-9, shawl Ext. P-6, two gloves Ext. P-5 and cap Ext. P-7. In the third pocket of the bag aforesaid, jacket Ext. P-3 was taken out, which was having two polythene packets containing some black substance. One recovered packet was having the material like small balls and the second was having toffee and marbles like material. It smelt like "Bhang." The identity of the accused was asked. Both the packets were weighed. It came to be one kilogram. Out of the recovered stuff, 50 grams of Charas was taken separately and divided into two sample parcels of 25 grams each. Both the sample parcels were packed in a small cloth parcel and sealed with seal impression "T" at six places each. The remaining recovered stuff alongwith jacket and polythene bags were packed into one parcel and sealed with seal impression "T" at 14 places. The remaining recovered stuff-parcel was marked as Mark-A and each of the sample parcels were marked as Mark A-1 and A-2. The case property was taken into possession vide memo Ext. PW1/A in the presence of witnesses. The sample of the seal Ext. PW 1/C was drawn on a piece of cloth, which was signed by the independent witnesses aforesaid. The accused had also appended his signatures on it. NCB forms in triplicate Ext. PW 1/B were filled in. During personal search of the accused, bus ticket Ext. P1/A, a small diary and currency notes of different denominations amounting to Rs. 730/- were recovered and taken into possession vide memo Ext. PW 9/A.

The police prepared site plan Ext. PW 9/C of the place of alleged recovery. One of the NCB forms is Ext. PW9/B. A Ruka was prepared and sent for registration of the case through Constable Virender Kumar which culminated into FIR Ext. PW 8/B.

The case property was handed over to PW 10 Inspector/SHO Jagdish Chand. He resealed the case property with his own seal producing the impression of English letter "H". Facsimile of the seal was taken on the NCB form. The case property alongwith sample of seals and NCB form were deposited with MHC PW 5 Inder Dev. The abstract of Malkhana is Ext. PW 5/B.

On 2.3.2008, one of the sample parcels Mark A-2 was sent to FSL, Junga vide R.C. No. 156/-07-08 through PW 7 Constable Yashyant Singh. On its deposit, he obtained receipt Ext. PW 5/C and handed over back to MHC. To this effect, he made entry in the Rojnamcha, which is Ext. PW 5/D.

After the recovery, the accused was arrested on the spot. The grounds of arrest were informed to him in writing.

Special report was sent to the Officer superior within the stipulated time.

On examination, the sample tested positive for Charas in the laboratory. The report is Ext. PW 9/D.

After completing the investigation, challan was presented in the Court against the accused for his trial. The learned trial Court found substance in the case of the prosecution and at the end of the trial, he was convicted and sentenced as aforesaid by giving him the benefit of Section 428 of the Code of Criminal Procedure. Since the time of his arrest i.e. 29th February, 2008, the accused is in jail and has already undergone the sentence of more than four years.

Learned Counsel for the accused does not agitate the findings of facts qua the conviction of the accused, but according to him, as per the quantity of the substance, the sentence appears to be slightly excessive, but even though, the substantive sentence has already been undergone by him and now he is undergoing his sentence qua the non-payment of amount only. Therefore, he prays that a lenient view in the sentence may be taken, to avoid hardship to him.

I have reappraised the evidence on record and the arguments advanced.

The prosecution story as revealed by PW9 Head Constable Krishan Lal stands fully corroborated by independent witness Sanjay Kumar. He was subjected to lengthy cross-examination, but nothing could be extracted. He also identified the recovered stuff during the trial of the case and the sample which contained his signatures, received after the examination was exhibited during the trial. He also proved the seizure memo Ext PW 9/A. PW9 Head Constable Krishan Lal produced the case property before PW 10 Inspector/SHO Jagdish Chand, who resealed it and took the facsimile of the seal used by him on the NCB form. The case property and NCB forms etc. were deposited in the Malkhana on the same day, as deposed by him. Its entry finds mentioned in Ext. PW 5/B. A copy of the Road Certificate is Ext. PW 5/C, substantiates the fact that one of the sample parcels was sent through PW 7 Constable Yashwant Singh for analysis, which was received in the laboratory on 3.3.2008. The case property including the sample parcel as well as NCB forms so long as remained in the custody of Constable Yashwant Singh, were not tampered with and remained intact. Even the report of the analysis makes it abundantly clear that the sample-parcel of the description mentioned in the Road Certificate was received in the laboratory and the seals were found to be intact. There is overwhelming evidence qua the recovery of the Charas from the possession of the accused. The link evidence is complete. Therefore, in my considered opinion, there is no error in the judgment of the learned trial Court convicting the accused for the offence charged keeping in view in his possession of non-commercial quantity of the said contraband.

Calculated upon the resin contents on the sample examination in the laboratory, the total quantity of Charas comes to 254.80 grams whereas the appellant-accused was sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 20,000/-and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months. As already stated above, he has undergone the substantive sentence of more than four years and is in jail on account of the default clause.

To keep consistency in the matter of the sentence, sentence upon the accused appears to be slightly excessive, therefore, the sentence is modified to the extent of three and half years instead of four years, as awarded by the learned trial Court without disturbing the fine and default clause. Since the accused has already undergone the sentence so imposed, he be released forthwith, if not required in any other case. With the above modification in sentence, the appeal stands disposed of. The Registry is hereby directed to issue warrants of release in favour of the accused in conformity with this judgment forthwith.