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Himachal Pradesh High Court · body

2009 DIGILAW 682 (HP)

IQBAL SINGH v. STATE OF H. P.

2009-07-31

DEEPAK GUPTA, SURINDER SINGH

body2009
JUDGMENT Surinder Singh, J.-Both these appeals have arisen from a common judgment, passed by the learned trial court in Sessions Trial No.36 of 2005, decided on 29.3.2007, therefore taken together for its decision. 2. The learned trial Court convicted and sentenced the appellant Iqbal Singh under Sections 307 and 333 of the Indian Penal Code, whereas, appellant Joginder Pal @ Ram Lubhaya was acquitted for the aforesaid offences. However, both the appellants were also convicted and sentenced under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ‘the Act’ as under: 3. Royal Enfield Motorcycle No.PB-07J-2933 pertaining to the accused Iqbal Singh was ordered to be confiscated to the State. 4. Both the appellants have challenged their conviction and sentence for the aforesaid offences by filing their separate appeals. 5. The prosecution case as emerges from the evidence on record can be stated thus. On 4.11.2004, at about 12.20 p.m., PW3 HHC Bhagat Ram received a telephonic message from S.P. Mandi that two persons were on their motorcycle bearing registration No.PB-07J-2933 did not stop at Police ‘naka’ at Bindravani. Since there were lots of cases of theft of the mobile phones, a direction was given by S.P. Mandi to stop and check, the Motorcycle and also to ask from him as to why he did not stop at Police ‘Naka’. 6. The aforesaid information was entered into the daily diary Ex. PJ at 12.20 P.M. Thereafter the police party headed by HC Kuldeep Singh of P.P. Drang put a ‘naka’ on the road nearby. Around Name of the Appellant Offence under Section Period of Sentence. Iqbal Singh Under Section 20 of Rigorous Imprisonment for a period of NDPS Act, 1985. fourteen years and fine of Rs.1,00,000/- and in default of payment fine undergo imprisonment for two years. Under Section 307 & 333 I.P.C. Rigorous Imprisonment for a period of three years and fine of Rs.2,000/-under each of the section and in default of payment of fine to undergo imprisonment for six months under each count. Joginder Pal alias Ram Under Section 20 of Rigorous Imprisonment for a period of Lubhaya, NDPS Act, 1985. fourteen years and fine of Rs.1,00,000/- and in default of payment fine undergo imprisonment for two years. Joginder Pal alias Ram Under Section 20 of Rigorous Imprisonment for a period of Lubhaya, NDPS Act, 1985. fourteen years and fine of Rs.1,00,000/- and in default of payment fine undergo imprisonment for two years. 12.50 p.m., the police noticed the aforesaid motorcycle, to which Iqbal Singh appellant was driving on a very high speed and Joginder Pal appellant was the pillion rider. Iqbal Singh was having a black Raxine bag put on his shoulder. The police signaled them to stop, but neither they lowered the speed nor stopped the motorcycle and allegedly hit HC Kuldeep Singh intentionally. He fell down on the spot and sustained the injuries. The Motorcyclist alongwith the pillion rider fell apart on the road. Joginder Pal pillion rider managed to escape and whereas Iqbal Singh sustained minor injuries and was apprehended on the spot. On checking his bas, HHC Bhagat Ram found “Charas” and “Poppy Husk” in two separate parcels alongwith his personal effects. HC Kuldeep Singh (PW4) was immediately removed to PHC Palli for his treatment in a car which came there immediately after the aforesaid accident. 7. PW26 ASI Baldev Singh, Incharge Police Post Drang was returning in his Motor-bike after attending the court. He was informed by HHC Hoshiar Singh on his mobile phone about the aforesaid incident. He came to the spot and found Iqbal Singh accused and HHC Bhagat Ram (PW3) on the side of the road around 2 P.M. and recorded the statement (Ex.PD) of HHC Bhagat Ram. In Ex.PD HHC Bhagat Ram stated about the above facts and further revealed that the pillion rider whose name and identity was disclosed by Iqbal Singh had fled away from the spot. Whereas Iqbal Singh appellant was having a black Raxine bag, which fell on the spot after the accident. It was checked. It contained “Charas” and another polythene envelope was containing “Poppy Husk”. His aforesaid statement was sent for registration of the case, which was recorded as FIR Ex.PZ and investigation of the case started. 8. ASI Baldev Singh (PW26) of P.P. Drang took over the investigation and joined PW6 Bhupender, Pradhan of the Gram Panchayat, who was running a PCO and PW11 Kashmir Singh, owner of a tea stall and sweet shop, nearby. A local Photographer from the bazaar was called for. “Charas” and “Poppy Husk” both were weighed. The “Charas” was 2 K.Gs and “Poppy Husk” 200 grams. A local Photographer from the bazaar was called for. “Charas” and “Poppy Husk” both were weighed. The “Charas” was 2 K.Gs and “Poppy Husk” 200 grams. 9. The weighing proceedings were photographed. Thereafter 50 grams of “Charas” was separated from the recovered stuff, which was divided into two parts of 25 grams each and both the sample-parcels were sealed with seal impression ‘H’. Remaining “Charas” was sealed separately with the same seal and marked as Ex.P1 and both the samples of “Charas” were marked as Ex.P2 and Ex.P3. 10. Further out of the recovered quantity of “Poppy Husk”, two samples of 25 grams each were separated and sealed with seal impression ‘H’ and remaining bulk was also sealed with the same seal and “Poppy Husk” was marked as Ex.P4 and both the samples were marked Exts.P5 and P6. 11. The sample of seal ‘H’ was taken on separate pieces of cloth, one of which is Ex. PE. The signatures of the witnesses were taken on the sealed parcels as well the sample parcels. The seal after its use was handed over to PW6 Bhupender. 12. Thereafter NCB forms in triplicate were filled in and the case property was taken into possession vide memo Ex. PF, its one copy was given to Iqbal Singh accused. He was arrested and he was apprised of his grounds of arrest (Ex. PN). 13. During the search of the said bag (Ex.P1), Patka Ex.P2, Mufflar Ex.P3 Gloves Exts. P3 and P4 were recovered, which were taken into possession vide a separate memo Ex. PG, its copy was also supplied to Iqbal Singh accused. 14. The motorcycle aforesaid alongwith its keys and registration certificate were also taken into possession vide memo Ex.PH in the presence of the witnesses. 15. The case property was produced before SI/SHO Om Parkash (PW21), which was resealed by him with his seal producing the English letter ‘T’. The facsimile of said seal was also put on the NCB forms. One of such form is Ex. PAA. The sample of seal was also taken separately on a piece of cloth Ex. PAB. 16. The case property along with documents and specimen were handed over to HHC Baldev Singh (PW15) on the same day, which was thereafter deposited in the Malkhana. 17. A special report, the copy of which is Ex. One of such form is Ex. PAA. The sample of seal was also taken separately on a piece of cloth Ex. PAB. 16. The case property along with documents and specimen were handed over to HHC Baldev Singh (PW15) on the same day, which was thereafter deposited in the Malkhana. 17. A special report, the copy of which is Ex. PV was also sent to the Deputy Superintendent of Police, headquarter at Mandi, within the statutory time. 18. HC Kuldeep Singh, who was taken to PHC Palli was examined by PW1 Dr. Dinesh Thakur. He noticed the following injuries on his person:- “(i) Abrasion on forehead, left side and hamaetoma on occipital region on right side, swelling on right cheek. Lacerated injury on mucosal surface of lower lip right central and lateral incisor teeth and socket displaced posteriorly. It suggested fracture of mandible. To rule out fracture he was advised X-ray of the skull and mandible- AP and lateral and referred to the opinion of dental surgeon and treatment. (ii) There was also an abrasion on the left leg just above two c.m. left patella and lacerated wound of 5 cm x .5 skin deep on sheen of Tibia in middle lying transversely.” 19. In the opinion of the doctor, the injuries were fresh and were caused within few hours. Thedoctor issued MLC Ex.PA and referred the injured to zonal hospital Mandi. In his opinion, injury No.2 was simple in nature whereas injury No.1 was grievous, to this effect. His opinion is Ex.PA/1. 20. In Zonal hospital, HC Kuldeep Singh was medically examined by PW2 Dr. Bharti Sharma. He noticed the deformity of the mandible and a swelling on the right angle thereof. He got X-ray of both the sides of mandible done the skigrams are Exts.P1/1 to P1/3. On examination of the X-rays, he noticed the fracture of the body to the mandible and Condylar region. Thereafter, he referred the injured to the IGMC, Shimla for further treatment and management of injury on the mandible, which was opined to be grievous in nature as per Ex. PC. The motorcycle aforesaid was got mechanically examined from HC Brestu Ram Motor-Mechanic, his report is Ex. PO. 21. The appointment letter of HC Kuldeep Singh Ex.PR and posting orders Ex. PS were obtained. The site plan of the place of incident Ex.PAE was also prepared. 22. PC. The motorcycle aforesaid was got mechanically examined from HC Brestu Ram Motor-Mechanic, his report is Ex. PO. 21. The appointment letter of HC Kuldeep Singh Ex.PR and posting orders Ex. PS were obtained. The site plan of the place of incident Ex.PAE was also prepared. 22. On 5.11.2004, PW15 MHC Baldev Singh proceeded on leave and handed over the charge to PW16 MHC Rajiv Kumar. 23. On 16.12.2004, PW16 MHC Rajiv Kumar handed over two parcels i.e. one of “Charas” mark P2 and another of “Poppy Husk” (Mark P5) along with the NCB forms, copy of FIR, specimen seals ‘H’ and ‘T’, copy of the statements recorded under Section 154 of the Code of Criminal Procedure etc. vide RC No.181/4 to PW13 Constable Mehar Chand for its deposit in CTL Kandaghat for its examination. He deposited it on the same day and obtained the receipt on the ‘Road-Certificate’. 24. On 21.4.2005, the case file for further investigation was handed over to PW22 ASI Suresh Kumar to arrest Joginder Pal alias Ram Lubhaya the absconded accused was a dismissed constable of Punjab Police, whose particulars were supplied by Iqbal Singh to the police. 25. On 23.4.2005, the brother of the appellant, namely Ashok Kumar identified the appellant Joginder Pal alias Ram Lubhaya to ASI Suresh Kumar and he was arrested and produced before the SHO and thereafter before the Magistrate on 26.4.2005, where after he was remanded to the judicial custody. 26. On the receipt of report Ex.PX of the Chemical Examiner from CTL Kandaghat, on completing the investigation of this case, the challan was presented in the court for the trial of the accused-appellants. 27. Both the accused persons were charge-sheeted for the offences as stated above including Section 15 of the Act. They pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and each of the accused persons were also examined under Section 313 of the Code of Criminal Procedure. 28. According to Iqbal Singh accused, the police had gheraoed his motorcycle at the place of alleged occurrence, on account of which his motorcycle got imbalanced and fell down. He had denied the recovery of the contraband from him and alleged false implication in the case. 28. According to Iqbal Singh accused, the police had gheraoed his motorcycle at the place of alleged occurrence, on account of which his motorcycle got imbalanced and fell down. He had denied the recovery of the contraband from him and alleged false implication in the case. He further explained that the accident took place by the sheer negligence and over doings of the police officials, who came in the middle of the road, thus HC Kuldeep Singh sustained the injuries because of his own fault. To take revenge, a false case was foisted upon them. 29. Joginder Pal accused took the stand that he was arrested on the basis of suspicion. He was not traveling with Iqbal Singh and denied his arrest on 23.4.2005 from Talwara as alleged. However, he admitted that earlier he was in the police department in Punjab and was dismissed from service. 30. On consideration of the evidence on record, the learned trial court called upon the accusedpersons to enter into their defence. They examined DW1 ASI Ashok Kumar of PAP Bn. Jullandhar. He had brought the official record. He stated that Joginder Paul s/o late Nand Lal R/o Talwara had joined PAP 75 Bn, on 8.11.91 on compassionate ground after the death of his father. He did not know Joginder Pal personally. He also stated that in the official record he was not shown by his alias name and also as son of Gurbax Singh. 31. DW2 Ashok is the brother of the appellant Joginder Pal. He stated that the name of his father is Nand Lal. They are the real brothers. The name of their mother is Sita Devi. Their father died in the year 1974. Joginder Pal is his elder brother and they have one sister Vijay Kumari. After the death of his father, they were residing in Talwara and living together. According to him, police took Joginder Paul from their house around 4.30 P.M. They did not make any enquiry from him. He admitted that PW25 Ashok Kumar was a class-mate of Joginder Paul accused. 32. At the end of trial, the appellants were convicted and sentenced by the learned trail court as stated above, which is under challenge in this appeal. 33. He admitted that PW25 Ashok Kumar was a class-mate of Joginder Paul accused. 32. At the end of trial, the appellants were convicted and sentenced by the learned trail court as stated above, which is under challenge in this appeal. 33. On perusal of the judgment of the learned trial court, at the very outset, we are surprised that the learned trial court did not record any finding with respect to the charge under Section 15 of the NDPS Act, for the reasons best known to the learned trial court. The trial was conducted in a very cursory manner. It is not expected from a senior Judicial Officer that he omits to give findings on a charge framed under Section 15 of the NDPS Act for possessing “Poppy Husk”. We could have sent the matter back to the learned trial court to record his findings with respect to the charge aforesaid, but to save public money and time and at the same time undue harassment to the accused persons, we have decided to give our findings ourselves on the basis of the evidence adduced on record to advance the substantial justice. 34. We have heard the learned counsel for the parties. 35. Sh. D.S. Dole, learned counsel for accused (appellant Iqbal Singh in Cr. Appeal No.157 of 2007) submitted that on the perusal of the prosecution evidence it emerges that the motorcycle skidded off on the road, causing injuries to HC Kuldeep Singh aforesaid and the motorcyclist because of his (Kuldeep Singh’s) fault. According to him, seeing it from any angle it is not a case of attempt to murder as laid, but the circumstances show that it was pure and simple case of motor-vehicular accident which could be attributed to the police party. 36. He further argued that there is no evidence that accused deterred said HC Kuldeep Singh in performance of his official duties. Further according to him, there are material contradictions regarding the recovery of alleged contraband and he referred to the statement of PW3 HHC Bhagat Ram to pin-point that the prosecution case lacks probity and further argued that there has been a non-compliance of Section 50 of the NDPS Act. He also argued that on the examination of the “Charas”, the Chemical Analyst found 35.08 % resin, which is the content of “Charas”. He also argued that on the examination of the “Charas”, the Chemical Analyst found 35.08 % resin, which is the content of “Charas”. Therefore, if this percentage is calculated on the quantity recovered, it comes less than the “commercial quantity”, thus his alternative prayer was the sentence as imposed by the learned trial court is wrong and illegal and it deserves to be reduced. He prayed that the appellant is inside the jail w.e.f. 4.11.2004, the date of incident, therefore, the sentence already undergone with a reasonable fine would meet the ends of justice. 37. Sh. Lalit Kumar Sharma, learned counsel for the accused- appellant Joginder Pal @ Ram Lubhaya (Cr. Appeal No.251 of 2007) forcefully argued that there is not even an iota of evidence to establish the identity of said Shri Joginder Pal, who is stated to be a pillion rider on the motorcycle of Iqbal Singh, on the day of alleged incident. He also argued that appellant could not be connected with the alleged recoveries of the contraband in any manner. To support his arguments, he pointed out the relevant evidence to us, which shall be dealt with hereinafter. 38. Contra, Shri R.K. Bawa, learned Advocate General duly assisted by learned Deputy Advocate Generals submitted that he has no objection that in the circumstance in case the findings with respect to the offence punishable under Section 15 of the NDPS Act is recorded by this court with respect to the recovery of “Poppy Husk”. But however, while supporting the impugned judgment of conviction and sentence, the learned Advocate General argued that in the instant case the identity of appellant Joginder Pal and the recovery of contraband from both the accused stands fully proved and they deserves to be adequately punished in accordance with law. He also guardedly argued that in case this Court comes to the conclusion that it was not a case of attempt to murder and deterring the public servant in discharge of his official duties but it stands proved that the appellant Iqbal Singh was guilty of rash and negligent driving thereby causing injuries to a police official, therefore, the sentence may be modified. 39. 39. On considering the rival contentions of the parties and upon going through the record, in our anxious consideration, the following points are required to be answered by us:- (I) Whether the identity of appellant Joginder Pal @ Ram Lubhaya as a pillion rider with appellant Iqbal Singh at the relevant time stands proved? (II) Whether the appellant Iqbal Singh had committed an offence of attempt to murder of PW4 HC Kuldeep Singh by striking him with his motorcycle and caused the obstructions in discharge of his official duties? (III) Whether there has been violation of Section 50 of the NDPS Act? (IV) Whether the alleged contraband was recovered from the accused persons, if so from whom? (V) Conclusion & final order. POINT NO.I. The identity of Joginder Pal in this case is in question. 40. Ex.PD is the first statement which was made by complainant PW3 HHC Bhagat Ram to PW26 ASI Baldev Singh of Police Post Drang on the same day i.e. on 4.11.04 at 2.45 p.m. In this statement, according to Bhagat Ram, Ram Lubhaya is resident of Sector-I, near Police Station Talwara was a pillion rider as disclosed by his co-accused. 41. On 21.4.2005 i.e. after about more than five months, the case file was handed over for further investigation to PW22 ASI Surinder Kumar to arrest Ram Lubhaya and on 23.4.2005, till then no attempt was made to arrest him. PW22 arrested him from Talwara. His identity was certified to him by his brother Ashok Kumar, who also disclosed that the said accused was also called as Joginder Pal, but this fact is denied by DW2 Ashok Kumar, but it stands proved on record that the appellant Joginder Paul was arrested by PW22 on 23.4.2005 from his residence at Talwara. Further the accused took the defence that he is not the son of Nand Lal but he is son of Gurbax Singh and admitted that after death of his father Nand Lal who was in Punjab Police, he sought the employment in PAP 75 Battalion in the year 1991 on compassionate ground. DW1 ASI Ashok Kumar identified him as the same person Joginder Pal s/o Nand Lal and these particulars confirms the record brought by him but it did not disclose anywhere that he was also nicknamed as Ram Lubhaya. 42. DW1 ASI Ashok Kumar identified him as the same person Joginder Pal s/o Nand Lal and these particulars confirms the record brought by him but it did not disclose anywhere that he was also nicknamed as Ram Lubhaya. 42. PW25 Ashok Kumar was the school mate of appellant who knew the said accused personally. According to him appellant Ram Lubhaya @ Joginder Pal is son of Gurbax Singh, residing in Sector-I, Talwara township and he was arrested by the Himachal Police in this case. Even if we admit for the argument sake that Joginder Paul @ Ram Lubhaya is the same person, who is shown to be son of Gurbax Singh, then the next question is whether he is the same person who was accompanying Iqbal Singh on his motor-bike on the day of alleged incident. For that the scrutiny of the statements of the following witnesses is necessary. 43. PW3 HHC Bhagat Ram, the complainant stated that he only had the glimpse of the pillion rider. In his statement Ex.PD recorded under Section 154 Cr.P.C., he did not supply any physical details of the accused, who had absconded from the spot. PW4 HC Kuldeep Singh, who was injured in the said accident, stated that he did not know any of the accused prior to the aforesaid incident, but without explaining further he has stated that it was Ram Lubhaya @ Joginder Pal, who was pillion rider. He identified accused Ibal Singh, during the trial but did not say anything about the accused Joginder Pal. Further PW5 C. Liak Chand, who was present with the police party at Drang although stated that the said accused was a pillion rider, but admitted that no identification parade (TIP) was conducted immediately after his arrest. Significantly, he stated it was the Investigating Officer, who disclosed the name of the pillion rider as Ram Lubhaya on the next day of the incident. 44. According to PW12 HC Ram Lal, who was also present was not able to say that the other person who was a pillion rider with Iqbal Singh was appellant. 45. Except the aforesaid evidence, we could find that no witness could say with any authority that it was Joginder Pal @ Ram Lubhaya accused, who was the pillion rider with accused Iqbal Singh on 4.11.2004. 45. Except the aforesaid evidence, we could find that no witness could say with any authority that it was Joginder Pal @ Ram Lubhaya accused, who was the pillion rider with accused Iqbal Singh on 4.11.2004. Therefore, in our considered opinion, from the aforesaid evidence, the identity of the pillion rider could not be established in accordance with law. The Point No.1 is answered accordingly. POINT NO.II. 46. It stands established on record that the ‘Naka’ was put by the police party headed by H.C. Kuldeep Singh (PW4) on the road opposite to the police post Drang to nab the Motorcyclist, who had escaped earlier from the police ‘Naka’ at Mandi. HHC Bhagat Ram (PW3) and C. Liak Chand (PW5) were also present. This fact finds corroboration from the daily diary Ex.PJ. Police spotted the motorcycle coming from Mandi side coming on a very high speed with a pillion rider. According to HC Kuldeep Singh the motorcyclist did not stop despite the signal given to him by them and he drove the motorcycle towards him, as a result of which, he was hit and fell on the road. The motorcyclist also fell at some distance. On sustaining the injuries, Kuldeep Singh became unconscious and thereafter he was taken to the hospital. Similar is the statement of HHC Bhagat Ram and C. Liak Chand witnesses. 47. In fact “attempt” is an intentional preparatory action which fails in its object, which so fails through circumstances independent of the person who seeks its accomplishment. To punish the person for the ‘attempt to commit murder’, it must be an act capable of causing death in the natural and ordinary course of things and if the act complained of is not of that description, the accused cannot be convicted for the said offence. 48. Looking at the background facts, we find that the Motorcyclist had escaped first the ‘Naka’ put at Mandi and he might have tried to escape the second ‘Naka’ for the obvious reasons, but facts remain that he was lacking the intention to commit murder by striking his motorcycle against HC Kuldeep Singh, because there was also a peril of the grievous injuries or even causing his own death by doing such an act. There is nothing on record to show whether the police had put any barricade on the road. There is nothing on record to show whether the police had put any barricade on the road. Whereas the site plan Ex.PAE shows mark ‘B’ the place where the motorcyclist allegedly hit the injured on the National Highway, which is quite wide. There was a slight curve and the motorcycle alongwith its rider fell at a distance of 24’.2” away where Kuldeep Singh got hit. The alleged incident had taken place opposite to the compound of the police post Drang, on the road. It is not understandable as to why HC Kuldeep Singh had come almost to the centre of the road putting his life in peril. The possibility cannot be ruled out that on seeing the police the motorcyclist Iqbal Singh got baffled since he was driving his vehicle rashly and negligently on a public Highway and could not control his vehicle which hit HC Kuldeep Singh, as a result of which he got the simple injuries on the parts of the body and fracture of Mandible. 49. Thus, in the instant case, to our mind, there was no intention of causing death of said HC Kuldeep Singh. It has however been proved that the accused was guilty of running the risk of doing such an act with recklessness and indifference to the consequences. By the aforesaid act, as proved by the circumstances established on record, he endangered human life and the personal safety of others and caused the grievous hurt to HC Kuldeep Singh. 50. Thus, in our opinion, on the proved facts, the appellant Iqbal Singh is guilty of the offences punishable under Sections 279 and 338 of the Indian Penal Code and cannot be held liable under Sections 307 and 333 of the I.P.C. Point No.2 is accordingly answered. POINT NO.III. 51. As per the case of the prosecution, the alleged offending articles were recovered from the bag Ex.P2, which was hanging on the shoulder of appellant Iqbal Singh and after the aforesaid accident the bag had fell off from his person, which was later picked up. 52. PW3 HHC Bhagat Ram checked his bag and found the contraband therein as aforesaid. The recovery of the aforesaid articles is from the bag to which the appellant was allegedly carrying. 52. PW3 HHC Bhagat Ram checked his bag and found the contraband therein as aforesaid. The recovery of the aforesaid articles is from the bag to which the appellant was allegedly carrying. Section 50 of the NDPS Act makes it obligatory to the empowered officer and his duties before conducting search of the person of a suspect on the basis of the prior information to inform the suspect that he has the right to require his search to be conducted in the presence of a Gazetted Officer or a Magistrate. Failure to inform the suspect of his right renders the search illegal because he would not be able to take the protection which is in compliance of Section 50 of the Act. 53. In the instant case, the recovery of the contraband did not take place from the personal search of the accused nor it was conducted. The alleged contraband was recovered on routinely checking the bag after the accident, therefore, Section 50 of the Act aforesaid will have no application in the facts and circumstances of the case. The Point is answered accordingly. POINT NO. IV. 54. As already discussed above, the presence and identification of accused Joginder Pal @ Ram Lubhaya at the time of alleged incident could not be established, therefore, the recovery of any contraband cannot be attributed to him. 55. Insofar as accused Iqbal Singh is concerned, there is ample evidence against him that the Raxine bag Ex.P2 was hung on his shoulder when he was driving the motorcycle. This fact also finds mentioned in the earlier statement Ex.PD which was got recorded by PW3 HHC Bhagat Ram to PW26 ASI Baldev Singh. This fact has also been testified on oath by PW3 Bhagat Ram aforesaid. According to him, he formally checked the bag, “Charas” and “Poppy Husk” were found in the said bag. Thereafter, PW26 ASI Baldev Singh was informed on his mobile. Baldev Singh received the call from HHC Hoshiar Singh (PW7), who had requested him to reach the police post immediately. 56. According to ASI Baldev Singh HHC Bhagat Ram and Iqbal Singh accused were standing on the side of the road near police post where the statement Ex.PD of HHC Bhagat Ram was recorded by him and it was sent for registration of the case through C. Brij Lal (PW10). 56. According to ASI Baldev Singh HHC Bhagat Ram and Iqbal Singh accused were standing on the side of the road near police post where the statement Ex.PD of HHC Bhagat Ram was recorded by him and it was sent for registration of the case through C. Brij Lal (PW10). He also associated local witnesses PW6 Bhupender, Pradhan and PW11 Kashmir Singh in the investigation of the case. Both the aforesaid witnesses reached the spot from their nearby shops. A local photographer was also associated. HHC Bhagat Ram opened the bag in their presence. It was found containing 2 Kgs of “Charas” in one packet and 200 grams “Poppy Husk” in another packet. The weighing procedure was photographed from a local Photographer. The photographs are Exts.P13, P16, P17, P18, P19, P20, P22, P23 and P24. Two samples from each recovered stuff were taken. The sampling photograph is Ex.P21. The remaining stuff as also each of the samples were separately marked and sealed with seal impression ‘H’ as stated above. The case property was taken into possession vide recovery memo. Both the aforesaid witnesses have corroborated this version and admitted the execution of the recovery memo. They also identified their signatures on the said document. 57. We have also closely examined the statement of PW3 HHC Bhagat Ram to appreciate the arguments by Sh. D.S. Dolle, Advocate. But we find that it is of no assistance to him nor it caused any dent to the case of the prosecution with respect to the recovery of both these articles from the bag which was in the possession of accused Iqbal Singh alongwith his personal effects as indicated in Ex.PJ. The statement of Investigating Officer and independent witnesses corroborate the prosecution case in its entirety qua its recovery. 58. The recovered stuff was also produced before PW21 SI Om Parkash, the then SHO, Police Station Balh, who was the then officiating SHO of Police Station Mandi. He resealed the case property with his seal producing the English letter ‘T’ and its facsimile was also put on NCB forms in triplicate, one of which such form is Ex. PAA. The case property was handed over by the SHO Om Parkash to MHC Baldev Singh. He deposited it in the Malkhana. 59. He resealed the case property with his seal producing the English letter ‘T’ and its facsimile was also put on NCB forms in triplicate, one of which such form is Ex. PAA. The case property was handed over by the SHO Om Parkash to MHC Baldev Singh. He deposited it in the Malkhana. 59. On 5.11.2004, aforesaid Baldev Singh proceeded on leave and the charge of the Malkhana was handed over to HC Rajiv Kumar along with the case property and the documents. In this case on 6.11.2004, he (PW16) handed over two parcels marked P2 and P5, one of “Charas” and another of “Poppy Husk” respectively, duly sealed with documents, NCB forms, FIR copy, specimen seal ’H’ and ‘T’ and statement recorded under Section 154 Cr.P.C. to Constable PW13 Mehar Singh through RC No.181/04 for its analysis to Composite Testing Laboratory (CTL) Kandaghat, who on its deposit obtained the receipt and handed back to MHC, which fact has been proved by him. The aforesaid witnesses stated that so long as the case property/ samples remained in their possession, no one had tempered with it. Thus we find and hold that recovery of the alleged contraband was effected from the bag Ex.P2 which was in the possession of Iqbal Singh accused. The point is accordingly answered. 60. After the examination of the aforesaid samples Mark P2 of ”Charas” and Mark P5 of “Opium Husk” in CTL Kandaghat, Report Ex.PX was received. In the sample of “Charas” mark P2, we find that the resin which is content of “Charas” was found to be 35.08 %, which comes to 700.16 grams in the recovered stuff, of 2 Kgs., which is less than the “commercial quantity” and more than the “small quantity”. 61. A Coordinate Bench of this Court in Dharam Pal vs. State of H.P. [Latest HLJ 2007 (HP) 827 very minutely noticed the definition of “Cannabis (hemp)” and held that the “Charas” as per the definition means separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as ‘hashish oil’ or ‘liquid hashish’. From this definition, it is clear that it is only the resin content of the cannabis plant which is “Charas”. 62. From this definition, it is clear that it is only the resin content of the cannabis plant which is “Charas”. 62. The Central Government in exercise of the powers under clauses (viia) and (xxiiia) of Section 2 of the Act has issued a notification fixing upper limit of ‘small quantity’ and the lower limit of ‘commercial quantity’ of various narcotic drugs and psychotropic substances. Separate limits have been fixed in respect of cannabis resin, i.e. “Charas” or “hashish” as defined vide sub-clause (a) of clause (iii) of Section 2 of the Act, ‘ganja” as defined in sub-clause (b) of clause (iii) of the Act and ‘mixture’ of different narcotic drugs and psychotropic substances as defined in subclause (c) of clause (iii) of Section 2 of the Act, vide Entries No.23, 55 and 239 respectively. 63. The resin contents in this case, in the recovery of 2 Kgs. stuff comes to 700.16 grams, which is more than the ‘small quantity’ and lesser than the ‘commercial quantity’, as fixed vide entry No.23 of the Notification issued on 19th October, 2001, published in Gazette of India Extra PTII Section 3(ii) dated 19th October, 2001. 64. The Act aforesaid came to be materially amended w.e.f. 2nd October, 2001 in its various facets with a view to rationalize the sentencing structure, which, prior to the amendment, was uniform in nature in regard to sentencing and the minimum fixed sentence of ten years was to be awarded irrespective of the quantity of the contraband, but the aforesaid amendment brought in existence the graded sentence i.e. different for the ‘commercial quantity’ and different for the ‘small quantity’. 65. The quantity has to be fixed on the basis of the purity of the offensive circumstance recovered, therefore, the sentence is required to be passed on the basis of the quantity held to be quantity of the contraband recovered from the accused. [State of NCT of Delhi v. Ashif Khan @ Kalu [JT 2009 (3) SC 275]. (A) POINT NO.V-CONCLUSION: 66. [State of NCT of Delhi v. Ashif Khan @ Kalu [JT 2009 (3) SC 275]. (A) POINT NO.V-CONCLUSION: 66. Therefore, for the reasons aforesaid, we are of the firm view that only the appellant Iqbal Singh is required to be convicted and sentenced for keeping in possession the contraband of “Charas”, which is punishable under Section 20(B) of the Act, which provides the Rigorous Imprisonment for a term, which may extend to ten years and with fine, which may extend to Rs.1.00 lac, but we did not find the involvement of the appellant Joginder Pal @ Ram Lubhaya as it could not be proved by the prosecution beyond a reasonable doubt. 67. Therefore, in view of this, we hold Iqbal Singh appellant guilty of the offence punishable under Section 20 (B) of the NDPS Act. 68. Insofar as the simultaneous recovery of the “Poppy Husk” from the bag, which was with the appellant Iqbal Singh is concerned, the report of the Chemical Examiner Ex.PX is that the sample mark P5 contained the contents of “Poppy Husk” (Chura Post). To come to this conclusion, the sample tested positive in the meconic acid and morphine, but the percentage of the morphine is not mentioned therein. 69. The definition of “poppy straw” and “opium poppy” given in the Narcotic Drugs and Psychotropic Substances Act, 1985, need to be noticed. The same is reproduced here for ready reference. “Section 2(xviii), “poppy straw” means all parts (except the seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom. Section 2(xvii), “opium poppy” means__ (a) the plant of the species Papaver somniferum L.; and (b) the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government may, by notification in the Official Gazette, declare to be opium poppy for the purposes of this Act.” 70. From the definition of “poppy straw”, as reproduced hereinabove, it is clear that to understand the meaning of ‘poppy straw’, it is essential to refer to the meaning of ‘opium poppy’. From the definition of “poppy straw”, as reproduced hereinabove, it is clear that to understand the meaning of ‘poppy straw’, it is essential to refer to the meaning of ‘opium poppy’. ‘Poppy straw’, when read alongwith the definition of ‘opium poppy’, means (a) all parts (except seeds) of the plant of the species of papaver somniferum-L and all parts (except seeds) of the plant of any other species of papaver from which opium or any other phenanthrene alkaloid can be extracted and which the Central Government may by notification in the official gazette declare to be ‘opium poppy’ for the purposes of Narcotic Drugs and Psychotropic Substances Act, 1985. 71. In Rajiv Kumar alias Guglu vs. State of H.P.[ Latest HLJ 2008(HP) 247] the Division Bench of this court, of which one of us (Surinder Singh, J) was also the member, with respect to the similar type of report it was held that it did not indicate that the stuff examined consisted of the parts of either the plant of the species of papaver somniferum-L or a plant of any other species of papaver from which opium or any other phenanthrene alkaloid can be extracted and which the Central Government may have notified to be the opium poppy for the purposes of the Narcotic Drugs and Psychotropic Substances Act, 1985. That being so, the report of the Chemical Examiner, Ex. PX, that the stuff contained contents of “poppy husk”, which term is similar to the term “poppy straw”, cannot be used as enough evidence to hold that the stuff recovered from the appellant, the sample of which was analyzed by the Chemical Examiner, was “poppy straw”. 72. Therefore, in view of the above, the substance allegedly recovered from the appellant Iqbal Singh has not been “poppy straw” within the meaning of the Act. Therefore, he is not liable to be convicted and punished for the offence punishable under Section 15 of the NDPS Act, 1985. Thus, he stands acquitted of the charge framed under Section 15 of the said Act. V (ii) FINAL ORDER: 73. For the reasons aforesaid, the appeal of accused Iqbal Singh stands partly allowed. He is acquitted for the offences under sections 307 and 333 of the Indian Penal Code but he stands convicted under Sections 279 and 338 of the Indian Penal Code. V (ii) FINAL ORDER: 73. For the reasons aforesaid, the appeal of accused Iqbal Singh stands partly allowed. He is acquitted for the offences under sections 307 and 333 of the Indian Penal Code but he stands convicted under Sections 279 and 338 of the Indian Penal Code. Therefore, he is sentenced to undergo imprisonment for an offence under Section 338 of the Indian Penal Code for a period of one year and to pay a fine of Rs.1,000/-. No separate sentence is being passed under Section 279 of the Indian Penal Code as he has been sentenced for a graver offence under Section 338 I.P.C. 74. Further we convict appellant Iqbal Singh under Section 20(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 for keeping in his possession ‘Charas’ less than the ‘commercial quantity’ and more than the ‘small quantity, thus the sentence passed by the learned trial court is modified to the extent that he shall undergo the Rigorous Imprisonment for a period of 6 years and to pay a fine of Rs.30,000/- in default of payment of fine to further undergo Rigorous Imprisonment for a period of six months; however, he stands acquitted of the charge framed under Section 15 of the NDPS Act. 75. The appellant Iqbal Singh is given the benefit of Section 428 Cr.P.C. All the sentences aforesaid shall run concurrently. 76. Though no arguments were addressed about the confiscation of motor cycle of Iqbal Singh appellant, yet we find that it was used for carrying the narcotic by him, therefore, it was rightly ordered to be confiscated by the learned trial Court. 77. The learned trial Court is hereby directed to send the modified warrant of imprisonment to the concerned jail. 78. The Cr. Appeal No.251 of 2007, filed by appellant Joginder Pal @ Ram Lubhaya is allowed. The conviction and sentence passed by the learned trial court, is set-aside, consequently the appellant is acquitted by giving the benefit of doubt. He be released forthwith, if not required in any other case. 79. The Registry is directed to send the release warrant of appellant Joginder Pal @ Ram Lubhaya forthwith. Both the appeals are accordingly disposed of. Send down the records.