Prem Kumar vs State of Himachal Pradesh

Surinder Singh, J.—Appellant has challenged his conviction and sentence passed by the learned trial Court, for the offence punishable u/s 20(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ''the Act'', for allegedly keeping in his possession 568 grams of Charas in the total recovered stuff of 2 Kgs, which is less than "commercial quantity" and more than the "small quantity", thus, he was sentenced to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.40,000/-, in default of payment of fine, he was also ordered to further undergo imprisonment for one year. The period pre-trial and during the trial spent by him is ordered to be set off against the substantive sentence, as per provisions of Section 428 of the Code of Criminal Procedure.

In short, the prosecution story, as emerges from the evidence on record, can be stated thus. On 24th October, 2008, police party headed by PW8 ASI, the then HC Hans Raj was on patrolling duty in the area of "Baggi-Pool" falling under the jurisdiction of Police Station Nirmand. They noticed the appellant, hereinafter referred to as "the accused" coming from the opposite side with a bag hung on his right shoulder. On seeing the police party, he had tried to escape, police got suspicion and apprehended him. He was given an option for his personal search in writing Ext.PW1/A to be searched before the Gazetted Officer or a Magistrate, but he rendered himself to be searched by the policy party, but nothing incrimination was found on his personal search. To this effect, a memo Ext.PW1/B was prepared. Thereafter PW8 HC Hans Raj conducted the search of the bag of the accused and recovered 2 Kgs stuff, which was in the shape of small sticks and balls.

(ii) Out of the recovered stuff, he drew two samples of 25 grams each and sealed with seal producing the impression of English letter "H". The remaining bulk was also sealed with the same seal. Its impression was taken on a piece of cloth Ext.PW1/D. NCB forms in triplicate were filled in on the spot and the facsimile of the seal used was also taken on the said forms against the relevant column and seal after its use was handed over to PW7 C. Nanak Chand. The case property was taken into possession vide seizure memo Ext.PW1/C in the presence of the official witnesses PW1 C. Rohit Verma and PW7 C. Nanak Chand.

(iii) Ruqa Ext.PW8/B was sent through PW2 C. Bal Mukand, which culminated into FIR Ext.PW3/A.

(iv) The accused was arrested and the grounds of arrest were informed to him vide memo Ext.PW1/E.

(v) Case property was produced before PW3 HC Lal Chand, who was officiating as SHO. He resealed the case property with seal impression "T". Its facsimile was taken on the NCB forms and on the piece of cloth. Thereafter the case property was deposited in the Malkhana alongwith sample of seals. Its entry was made in the relevant register. Photocopy of the Malkhana register is Ext.PW3/C.

(vi) Special Report Ext.PW4/A was sent to the Dy. Superintendent of Police within the statutory period.

(vii) On 26.10.2008, one sample parcel was sent through PW1 C. Rohit Verma vide R.C. No.53/2008 for its examination to FSL Junga. On examination, the sample sent tested positive for Charas having 29.18% weight-in-weight resin of Cannabis plant. Report of the Public Analyst is Ext.PW6/A.

(viii) During the pendency of trial, on 25.3.2010, remaining bulk alongwith second sample parcel were also sent for examination to FSL Junga, through PW7 C. Nanak Chand after obtaining the orders of the learned Special Judge on the application moved u/s 311 of the Code of Criminal Procedure. He took it vide R.C. No.30/2010 Ext.PW7/A, which was delivered by him in the Laboratory. The report is Ext.PW3/F. It also tested positive for Charas. The resin contents of the Cannabis plant were found to be 28.39% in the bulk and 29.86% weight-in-weight in the second sample parcel, thus supplementary challan was presented.

The accused had pleaded not guilty to the charge and claimed trial.

To prove its case, prosecution examined its witnesses. Accused was also examined u/s 313 of the Code of Criminal Procedure. From the trend of the cross-examination as also his own statement as aforesaid, the stand taken up by the accused was that he was traveling in the bus boarded for Shimla for his treatment. He was alighted from the bus by the police and a case was fabricated against him. When called upon to enter into his defence, he did not lead any evidence in defence. At the end of trial, learned trial Court convicted and sentenced him as aforesaid.

Shri Bhupinder Thakur, learned counsel for the accused vehemently argued that the link evidence in the present case is missing and further that during the trial, sample packets were not produced for comparison of the seals and no reliance can be placed upon the person, who investigated the case. It is also argued that the report of the analysis is not linked with the alleged recovery, prosecution witnesses were highly interested in the success of the case and the learned trial Court placed his explicit reliance on their contradictory statements.

Contra, 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 reappraised the evidence on record in extenso.

At the very outset, I would like to say that the accused could not probablise the defence version that he was traveling in the bus, the police alighted him and fabricated a case against him. No motive has been imputed by him for his alleged false implication. Further, it is specifically suggested in the cross-examination of all the witnesses that one Phoola Devi, BDC Member was also traveling in the same bus. She had raised objection when the accused was being taken into custody by the police, but the suggestion put has been denied and no attempt was made to probablise the defence, even by examining Phoola Devi aforesaid despite reasonable and repeated opportunities accorded by the learned trial Court.

As far as the statement of the prosecution witnesses are concerned, PW8 ASI, the then HC Hans Raj has corroborated the prosecution case in toto. He testified that the place from where the accused was apprehended was a lonely and secluded place. On seeing the police, though he tried to escape but was apprehended by them and the recovery of the contraband was effected by him from his bag as aforesaid. He categorically stated that the spot, where he was apprehended was not inhibited area and no independent witness was available, as such, the search of his bag was effected in the presence of the police personnel which contained 2 Kgs. Contraband. Accordingly he separated two samples of 25 grams each which were duly sealed with seal impression "H" and remaining bulk was also sealed with the same seal. Case property was taken into possession vide seizure memo and accused was arrested. He was informed about the ground of arrest. Thereafter case property was produced before PW3 HC Lal Chand, who was officiating as SHO. He resealed the same with his own seal "T" and deposited in the Malkhana. Thereafter one sample parcel was sent through PW1 C. Rohit Verma for its analysis vide R.C. which was deposited by him and after depositing, he handed over the receipt. It is also clear from the abstract of the Malkhana register that the seal used by the Investigating Officer was also deposited alongwith NCB forms on which facsimile of the seal was used and these items were sent alongwith the sample parcel to the Laboratory for examination.

It is pertinent to note that sampling process has not been assailed in the cross-examination either of PW8 HC Hans Raj or any of the other witnesses of proceedings of search and seizure. The fact which is not disputed is admitted to be correct.

Further the factum of recovery stand fully corroborated by PW1 C. Rohit Verma, PW2 C. Bal Mukand, PW3 HC Lal Chand and PW7 C. Nanak Chand. In their cross-examination, nothing material could be extracted so as to shatter the recovery of the alleged contraband. The link in this case from the time of recovery till its examination is also complete.

The second sample parcel and the bulk were sent for its examination through PW7 C. Nanak Chand, but its report also confirms that it was containing the contents of Charas, however, it is not explained from where the seal of Tehsildar Rampur Mahasu appeared thereon. Although, the accused cannot be given any benefit thereof because one of the sample (S1) taken on the spot tested positive for Charas as aforesaid. There is no challenge that it was not a representative sample or that the sampling process was incorrect, therefore, the sample parcel of 25 grams sent for analysis through PW1 C. Rohit Verma is held to be a representative sample, which tested positive for Charas and stands connected with the remaining bulk stuff. Therefore, on the basis of resin percentage, the learned trial Court rightly applied the judgment of Division Bench of this Court rendered in Dharam Pal v. State of Himachal Pradesh and Another (Latest HLJ 2007 (HP) 827) holding that the only resin contents of the Cannabis plant is Charas and the accused is held responsible for the possession of the 568 grams of Charas found in the recovered stuff, calculated upon the percentage the resin, which is less than "commercial quantity" and more that "small quantity" and the sentence imposed is also commensurate to the recovery of the contraband, which requires no interference.

In result, the appeal sans merits and is accordingly dismissed.