Puran Kumar Gautam vs State of H.P.

Surinder Singh, J.—Appellant was convicted and sentenced by the learned trial Court in Sessions trial No.22 of 2009, decided on 6.5.2010, for allegedly keeping in his possession 39.52% weight-in-weight resin of cannabis plant (Charas) in the recovered stuff 1.8 Kgs, as such, he was ordered to undergo rigorous imprisonment for a period of 8 years and to pay a fine of `80,000/-, in default of payment of fine to further undergo simple imprisonment for a period of one year for the commission of offence punishable u/s 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short "the Act". The period of detention already undergone by the appellant, hereinafter to be referred as "the accused", was ordered to be set off as per the provision of Section 428 of the Code of Criminal Procedure, hence the present appeal by the accused.

The prosecution story as emerges from the evidence can be stated thus. In the year 2008 PW3 ASI Yashwant Singh was posted in Police Station Bhuntar. On 26.11.2008, at about 7 p.m., he alongwith ASI Kishan Chand, PW2 HHC Gulab Chand, PW7 SHO Narain Singh and driver of the vehicle PW4 C.Tirath Ram were present at Bajaura Check Post for conducting traffic checking. Around 7.30 p.m., a private bus bearing registration No. DL-IPB-8353 owned by ''Raj National Transport, New Delhi'' arrived there. It was stopped for checking. ASI Yashwant Singh boarded the bus alongwith other police officials. When he reached near seat No.37, he noticed accused occupying said seat having a black and red coloured rucksack having the inscription of the words "North Face" over it. He checked the bag, and recovered eight packets wrapped in a polythene bag kept concealed in his personal belongings. The packets contained black coloured substance. Bus driver Sanjeev Kumar and PW1 Dev Raj its Conductor were associated as witnesses.

(ii) The police asked the identity of the accused, thereafter he was taken to the room of the Barrier nearby. Packets which were recovered smelt like Charas. It was weighed. Substance of all the packets came to be 1.8 Kgs. From each of the packets, some substance weighing about 50 grams was separated and divided into two parcels of 25 grams each for analysis. Both the sample parcels were sealed with seal impression "T". Remaining bulk was also sealed with the same seal.

(iii) The Investigating Officer filled in NCB forms in triplicate one of such forms is Ext.PW3/A. The facsimile of seal was taken on the NCB forms aforesaid and also on a piece of cloth Ext.PW1/C. Seal after its use was handed over to Sanjeev Kumar. Case property was taken into possession vide seizure memo Ext.PW2/A in the presence of the witnesses. Said memo was duly signed by them.

(iv) Accused was arrested and grounds of arrest were informed to him. Ruqa Ext.PW3/B was prepared and sent through PW2 HHC Gulab Chand for the registration of the case. Police also prepared site plan Ext.PW3/C and recorded statements of the witnesses. The accused as well as case property were produced before PW7 SHO Narain Singh. The accused was confined in the judicial lock-up whereas the case property was resealed with his own seal by the SHO producing the impression of English letter "A". Its facsimile was also put on the NCB forms as well as on the piece of cloth.

(v) Case property alongwith sample of seal and NCB forms were deposited in the Malkhana with PW8 MHC Chaman Lal. Its entry was made in the Malkhana register, the copy whereof is Ext.PW8/B. One of the sample parcel was handed over to PW5 HHC Mast Ram for its analysis vide Road Certificate No.68/08 (Ext.PW8/C) alongwith sample of seals, NCB forms and police docket for its deposit in the FSL Junga. On 29.11.2008, the aforesaid articles were deposited by him in the Laboratory. The sample was examined and as per the report Ext.PW7/B, it tested positive for Charas having resin 39.52% weight-in-weight of Cannabis Plant. Later remaining bulk and another sample parcel were also sent for analysis. As per report Ext.PA, it also tested positive for Charas.

After completing the challan, it was presented in the Court for the trial of the accused. Accordingly, accused was charge-sheeted, tried, convicted and sentenced as aforesaid for the possession of contraband, hence the present appeal.

Shri D.S. Nainta, learned counsel for the accused vehemently argued that the accused could not be connected with the alleged recovery and further that there have been material contradictions in the statements of the witnesses. It is also ventilated that the independent witness PW1 Dev Raj turned hostile and the official witnesses have given different versions with respect to the place where the sampling was conducted as also with respect to the fabric of the bag, which according to him makes the prosecution case a suspect.

Contra, Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence and further submitted that the minor contradictions are bond to appear in the statements of the witnesses owing to time of the recovery and recording statements in the Court and further that the discrepancies as stated to have been pointed by the learned counsel for the accused are not material, which go to the root of the case.

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

PW1, Dev Raj an independent witness, who was the Conductor in the bus wherein the accused was travelling, turned hostile to the prosecution and the driver of the said bus named Sanjeev Kumar was not examined as having been won over. Pertinently, the hostile witness aforesaid stated that the accused was travelling in his bus. He was having a bag with him. He also stated that the bag to which the accused was carrying was containing wearing apparels, but did not support prosecution case as far as recovery of Charas is concerned. When cross-examined by the learned Public Prosecutor, he admitted his signatures on the documents prepared on the spot which speaks of the recovery of Charas from the accused as alleged. He also admitted signatures on each parcel, which was prepared by the police on the spot. Said witness was contradicted with his statement recorded by the police u/s 161 Cr.P.C., therefore, his statement in view of the above facts cannot be said to be of any advantage to the accused.

Insofar as the official witnesses are concerned, there is no rule of law that the statements of the official witnesses cannot be relied upon without any corroboration or they are to be looked with the tainted glasses. Their statements are also required to be seen and examined like any other witness with respect to their competency and relevancy.

It is also equally settled that the Court while appreciating the evidence must not give undue importance to the minor discrepancies. The discrepancies which do not shake the very basis version of the prosecution case, may be discarded. The discrepancies which are due to normal error of perception or observation should not be given importance, because it owes to the lapse of memory or the time taken from the time of recovery till the witnesses examined in the Court.

The discrepancies which have been pointed out in the statements of the official witnesses by the learned counsel for the accused are of not much importance, which shake the prosecution case. Although, PW2 Gulab Chand stated that no other person was sitting at seat No.38 which was beside the seat occupied by the accused, whereas PW3 Yashwant Singh in his cross-examination stated that some other person was occupying that seat and also that PW2 Gulab Chand stated that bag which was recovered from the accused was of a fabric and PW3 Yashwant Singh stated that it was of a rexine is no consequence at all. Both the discrepancies do not appear to be of much importance owing to the fact that the alleged incident had taken place on 26.11.2008 and the witnesses were examined exactly after one year in the Court. Further the bag was exhibited in the statement of PW3 Yashwant Singh when examined in the Court and he testified that this was the same bag, which was recovered from the accused and it contained the alleged contraband, so its identity stands established.

Further Shri D.S. Nainta, learned counsel for the accused pointed out that prosecution witness PW2 Gulab Chand aforesaid stated that the personal search of the accused was conducted consequent to the recovery, whereas, PW3 Yashwant Singh stated that he was searched before searching the bag. This contradiction is also not of a serious nature as the alleged recovery was effected from the rucksack and not from the personal search of the accused. It is pointed out that PW2 Gulab Chand stated that the police party did not go inside the tent, whereas PW7 SHO Narain Singh stated that the investigation was carried out in the tent itself. Even this discrepancy is not enough to throw out the case of the prosecution. The fact remained that the bag in question which was identified during the trial by the Investigating Officer and he testified that the recovery of the alleged contraband was effected from that bag which was with the accused alongwith his other articles makes him liable to explain the very possession of the contraband, which was recovered from him, to which he failed to offer any explanation.

Further PW3 Yashwant Singh stated about taking sample from each of the packets randomly which was mixed up. Two sample parcels of 25 grams each were prepared and sealed with seal impression "T" on the spot and the case property was taken into possession vide seizure memo in the presence of the witnesses, which was also signed by the hostile witness PW1 Dev Raj. The sample parcels as well as accused both were produced before PW7 SHO Narain Singh. The accused did not raise even the voice against the illegal arrest and he also did not make any complaint when he was produced before the Court at the time of remand that he was wrongly implicated in the case. For the first time during trial, he took up the defence that there was an abandoned/ unclaimed bag in the bus and he being Nepali, it was foisted upon him, could not be probablised, however, the reasons for implicating him in the false case were also not spelt out.

In the instant case, the link evidence is complete. It stands proved that the sample, which was tested in the Laboratory was taken from the recovered stuff, was in the possession of the accused, thus the case against the accused stands fully proved. I also do not find any infirmity in the case of the prosecution as far as the conviction is concerned.

Confronted with the above situation, learned counsel for the accused submitted that though learned trial Court had given the benefit of the judgment rendered by this Court in Dharam Pal vs. State of H.P. [Latest HLJ 2007 (HP) 827] with respect to the resin contents found in the recovered stuff, but the sentence is still on the higher side.

I have examined the above arguments of the learned counsel for the accused. On the basis of resin contents of Cannabis plant, the offensive matter comes to about 700 grams in the recovered stuff, thus the sentence appears to be slightly on the higher side. Thus, to maintain consistency in sentence, it is modified to the extent that the accused shall undergo rigorous imprisonment for a period of seven years instead of eight years as imposed by the learned trial Court and to pay a fine of `70,000/- instead of `80,000/-, without disturbing the default clause. With these modifications in sentence, the appeal stands disposed of.

The learned trial Court shall send the modified warrants in consonance with the judgment to the jail concerned in the above terms to the Superintendent Jail concerned.

The matter stands disposed of. Send down the record.