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Himachal Pradesh High Court · body

2009 DIGILAW 1266 (HP)

RAMAN KUMAR v. STATE OF H. P.

2009-12-11

SURINDER SINGH, SURJIT SINGH

body2009
JUDGMENT Surjit Singh, J.(Oral)- All these three appeals arise out of the same judgment, i.e. judgment dated 15.3.2007 of learned Trial Court, whereby appellants, in all the three appeals, have been convicted of offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, for being in possession of 2.240 kgs. of Charas and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.1,00,000/- each; in default of payment of fine to undergo imprisonment for a further period of three years. 2. Case of the prosecution is that on 5.1.2005 around 6 p.m., when PW-11 ASI Amin Chand of Police Station, Tissa, alongwith PW-1 HHC Diwan Chand, PW-4 HHC Dev Raj and some other police officials, was present at a place called Tilmili Mor on Tikrigarh Road, Indica Car No. HR-09A-2515 appeared from Tikrigarh side. It was got stopped and checked. On checking, a bag (Thella) was found kept on rear seat. On the two sides of bag Ext. P-4, appellants Raman Kumar and Raj Kumar were sitting and the third appellant Sat Pal was driving the car. On checking, bag was found to contain Charas, which weighed kgs. Two Samples, each weighing 20 grams, were separated. The samples and the bulk stuff were made into separate parcels and were sealed with a seal that produced the impression of letter “A” of English alphabet. Case property was deposited with PW-8 MHC Charan Singh. One part of the sample was sent to Chemical Examiner, who found 27.89% resin of cannabis in the sample. On receipt of the report, appellants were challaned. 3. Trial Court charged all the three appellants with offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. They pleaded not guilty to the charge and were, therefore, put on trial. 4. 4. Prosecution examined PW-11 SI Amin Chand, PW-1 HHC Diwan Chan and PW-4 HHC Dev Raj, to prove the search and the seizure. It also examined two independent witnesses, namely PW-5 Sher Mohammad and PW-6 Rajan Singh, who turned hostile. Report of the Chemical Examiner Ext. PX was also tendered in evidence. 5. Appellants denied that any bag, containing Charas, was recovered from them. They, however, did not deny that they were travelling by a car. 6. It also examined two independent witnesses, namely PW-5 Sher Mohammad and PW-6 Rajan Singh, who turned hostile. Report of the Chemical Examiner Ext. PX was also tendered in evidence. 5. Appellants denied that any bag, containing Charas, was recovered from them. They, however, did not deny that they were travelling by a car. 6. Trial Court believed the testimony of PW-11 SI Amin Chand, PW-1 HHC Diwan Chand and PW-4 HHC Dev Raj and came to the conclusion that on search of the car, the appellants were travelling by, Charas weighing 2.240 Kgs. had been recovered and that the report Ext. PX of Chemical Examiner proved that the contents of the stuff, recovered from the Car of the appellants, were Charas. Consequently, all the appellants were convicted and sentenced, as aforesaid. 7. The only submission that has been made on behalf of the appellants-convicts is that the appellants were sent up for trial for possessing Charas and the Charas, as per definition contained in sub-clause (a) of Clause (iii) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, means resin, in whatever form, whether crude or purified, obtained from cannabis plant and also includes concentrated preparation known as Hashish oil or liquid Hashish. It has been submitted that in the present case, as per report of the Chemical Examiner, the entire sample stuff was not resin or say Charas, but only a part of it, to the extent of 27.89 per cent, was resin and, hence, the appellants cannot be said to be in possession of 2.240 kgs of Charas. Learned counsel says that what was in possession of the appellants was not whole Charas but something which included Charas (resin) to the extent of 27.89 per cent only and the rest of the stuff was some unknown substance about which report of the Chemical Examiner is silent. He has taken us through the report of the Chemical Examiner, per which the sample contains contents of Charas. 8. We find ourselves in agreement with the aforesaid submission of the learned counsel for the appellant. His submission is supported by the judgment, delivered by a Division Bench of this Court, in Dharam Pal versus State of H.P. and another, 2008(1) Crimes 337 (HP). 8. We find ourselves in agreement with the aforesaid submission of the learned counsel for the appellant. His submission is supported by the judgment, delivered by a Division Bench of this Court, in Dharam Pal versus State of H.P. and another, 2008(1) Crimes 337 (HP). In the aforesaid case, it has been held that only the resin content of the stuff is Charas and that in the absence of the report of the Chemical Examiner about the rest of the contents of the stuff, the quantity of the Charas, based on the percentage of the resin found therein by the Chemical Examiner, is required to be worked out and the appellants-accused are to be held responsible for possessing Charas only to the extent, the stuff contains the resin content in it. 9. As noticed hereinabove, the total quantity of stuff recovered from the appellant was 2.240 kgs. The Chemical Examiner has found resin content in it to the extent of 27.89 per cent. That means the Charas/resin content in the recovered stuff was 625 grams. This quantity is less than the commercial quantity, as specified vide Notification No.S.O. 1055(E), dated 19th October, 2001, issued by the Central Government, even though it is more than the upper limit of the small quantity fixed by the same Notification. Thus, the appellants are liable to be punished not under Section 20(C) of the Narcotic Drugs and Psychotropic Substances Act, as done by the trial Court, but under Section 20(B) of the said Act for which no minimum sentence is prescribed. 10. The offence under Section 20(B) is punishable with imprisonment that may extend to ten years and with fine which may extend to Rs.1,00,000/-. Looking to the quantity of resin/Charas found in the stuff recovered from the appellants, we feel that the ends of justice would be met in case their sentence is reduced from ten years rigorous imprisonment and a fine of Rs.1,00,000/- to four years and six months (4½ years) rigorous imprisonment and fine of Rs.20,000/-, each; in default of payment of fine rigorous imprisonment for a further period of six months. We order accordingly. All the appeals stand disposed of.