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2010 DIGILAW 569 (UTT)

ASHOK v. STATE OF UTTARAKHAND

2010-08-12

PRAFULLA C.PANT

body2010
JUDGMENT This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 11.01.2007, passed by Special Judge (N.D.P.S. Act), Dehradun, in Special Sessions Trial No. 19 of 2005, whereby appellant Ashok has been convicted under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short N.D.P.S. Act), and sentenced to rigorous imprisonment for a period of ten years, and also directed to pay fine of Rs. 1,00,000/-. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that on 27.02.2005, P.W.1 Sub Inspector Narain Ram, P.W.2 Head Constable Babu Lal, P.W.3 Constable Dinesh Kumar were on checking duty. At about 16.00 hours, when they proceeded from Haripur towards Laldhang, they saw person with a bag hanging from his shoulder, who on seeing the policemen turned around and started fleeing. This made the policemen suspicious. They chased and apprehended the person. On being apprehended, the person disclosed his name Ashok (appellant). On making search from his bag smell of cannabis came. On inquiry, he told that he is carrying CHARAS. Before search he was told if he desired to be searched by any Gazetted Officer. In reply to that the accused Ashok told the policemen that since he had been apprehended, as such, they could take search of his belongings. The cannabis which was found in the bag of the appellant was got weighed and its weight was found 1 kg. On this, the policemen sealed the item, and prepared recovery memorandum (Ext. A-1), sample seal (Ext. A-4), arrest memorandum (Ext. A-2), and information memorandum (Ext. A-3) (for being sent to the house of the accused). The policemen took the accused and the seized item to the police station, and got lodged first information report (Ext. A-6) against accused/appellant Ashok, in respect of offence punishable under Section 8/20 of N.D.P.S. Act, which was registered as Crime No. 04 of 2005. Necessary entries were made in the General Diary and the item recovered was kept in the MALKHANA. P.W.5 Sub Inspector Ved Prakash Thapliyal investigated the crime. After interrogating the witnesses, he got sent the seized material to Forensic Science Laboratory, Agra, for chemical analysis. Necessary entries were made in the General Diary and the item recovered was kept in the MALKHANA. P.W.5 Sub Inspector Ved Prakash Thapliyal investigated the crime. After interrogating the witnesses, he got sent the seized material to Forensic Science Laboratory, Agra, for chemical analysis. Later, the investigation was taken over by P.W.6 Sub Inspector Ravindra Kumar Singh, who completed the investigation, and submitted charge sheet (Ext. A-15) against accused for his trial, in respect of offence punishable under Section 8/20 of N.D.P.S. Act. 4. The trial court, after giving necessary copies to the accused, on 20th of May 2005, framed charge of offence punishable under Section 8/20 of N.D.P.S. Act against accused Ashok, in reply to which he pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Sub Inspector Narain Ram; P.W.2 Head Constable Babu Lal; P.W.3 Constable Dinesh Kumar; P.W.4 Santosh Kumar; P.W.5 Sub Inspector Ved Prakash Thapliyal and P.W.6 Sub Inspector Ravindra Kumar Singh (Investigating Officer). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C. in reply to which he alleged the evidence adduced on behalf of the prosecution to be false. It is pleaded by him that on 26th February 2005, he was in a drunken state, when the two policemen came in a motorcycle and on seeing him took him to the police station. However, no evidence in defence was adduced. After hearing the parties, the trial court found accused/appellant Ashok guilty of charge of offence punishable under Section 8/20 of N.D.P.S. Act, and sentenced him to rigorous imprisonment for a period of ten years, and also directed to pay fine of Rs. 1,00,000/-. Hence, this appeal. 5. Before further discussion it is pertinent to mention here that the report dated 5th April 2005, received from Joint Director, Forensic Science Laboratory, 15 Taj Road, Agra, shows that the recovered item from the accused/appellant, on analysis, was found to be cannabis (CHARAS). As such, as far as the item said to have been recovered from the accused is concerned, there is sufficient reliable evidence that the same was Charas. 6. As such, as far as the item said to have been recovered from the accused is concerned, there is sufficient reliable evidence that the same was Charas. 6. Whether the item sent for chemical analysis was recovered from the accused/appellant Ashok or not, on this point, P.W.1 Sub Inspector Narain Ram, P.W.2 Head Constable Babu Lal and P.W.3 Constable Dinesh Kumar have sufficiently proved that on 27.02.2005, when they were on checking duty on their way from Haripur to Laldhang they met accused, who attempted to flee, and on being chased he was apprehended, and when the search was made, it was found that he was carrying CHARAS in his bag. It is also proved from the statement of these witnesses that the accused was given an opportunity for being searched by a Gazetted Officer to which he did not opt for. The recovery memorandum (Ext. A-1) prepared by the policemen at the spot is signed by the accused Ashok himself. Therefore, the recovery of charas from the accused is also proved on the record. It is also not the case of the accused that he had any license to carry CHARAS. 7. Now, the only question which is vehemently pressed before this Court is that, there is no sufficient proof of the fact that the item said to have been recovered from the accused was actually of the commercial quantity. As per the Notification No. S.O. 1055(E) dated 19th October 2001, issued under the N.D.P.S. Act, specifying small quantity and commercial quantity, at Sl. No. 23, it is mentioned that for cannabis and cannabis resin (CHARAS and HASHISH), the small quantity is 100 gm. and commercial quantity is 1 Kg. The prosecution has alleged that 1 Kg. CHARAS was recovered from the accused, which is exactly the minimum amount mentioned in the Notification for the commercial quantity. Learned counsel for the appellant argued that it is not proved on the record that actually the quantity said to have been recovered from the appellant was one kilogram or more. In this connection, attention to this Court is drawn to report No. 965-CHEM-05 dated 5th April 2005, received from the Joint Director, Forensic Science Laboratory, 15, Raj Road, Agra, in which the quantity of CHARAS has been mentioned approximately 1 Kg. Word ‘approximately’ does not rule out couple of grams less than one Kilogram. In this connection, attention to this Court is drawn to report No. 965-CHEM-05 dated 5th April 2005, received from the Joint Director, Forensic Science Laboratory, 15, Raj Road, Agra, in which the quantity of CHARAS has been mentioned approximately 1 Kg. Word ‘approximately’ does not rule out couple of grams less than one Kilogram. On the point that whether the policemen actually weighed the item recovered from the accused at the spot, questions have been put by the defence counsel before the trial court to the witnesses. P.W.1 Sub Inspector Narain Ram in his cross-examination states that when they weighed the CHARAS they got a balance and the weight measurements brought through one constable, and there was a 1 Kg. weight measurements and others were of 100 gm., 50 gm. and 250 gm. On this point, P.W.2 Head Constable Babu Lal says that the weight measurements by which the recovered item was weighed were of 1 kg, 500 gm. and 200 gm. The third witness P.W.3 Constable Dinesh Kumar says that the weighs were of 50 gm, 100 gm, 200 gm., 500 gm. and 1 kg. There is inconsistency in the statements of P.W.1 Sub Inspector Narain Ram and the other two witnesses, which create doubt as to the actual weight of the charas said to have been recovered from the accused/appellant. Also, they could not reply from where the balance and weights were brought and sent. That being so, it cannot be said that the prosecution has proved the fact beyond reasonable doubt, that the quantity of recovered CHARAS was of the commercial quantity. Even a single gram less than 1000 gram would bring the case of the present appellant under Clause (B) of clause (ii) of Sub-clause (b) of Section 20 of the N.D.P.S. Act, 1985. Therefore, the sentence which would have been awarded to the accused/appellant could not exceed to rigorous imprisonment for a period of ten years, and a fine of Rs. 1,00,000/-, but no minimum sentence is provided for that category, unlike the category mentioned in Clause (C), which is applicable to the case of commercial quantity and above. Since, the quantity of CHARAS said to have been recovered from the accused/appellant Ashok is only approximately 1 Kg., not exactly 1000 gms. 1,00,000/-, but no minimum sentence is provided for that category, unlike the category mentioned in Clause (C), which is applicable to the case of commercial quantity and above. Since, the quantity of CHARAS said to have been recovered from the accused/appellant Ashok is only approximately 1 Kg., not exactly 1000 gms. or above, the case of the present accused/appellant is covered under Clause (B) of Clause (ii) of sub-clause (b) of Section 20 of the N.D.P.S. Act. It is pertinent to mention here that accused/appellant is in jail for more than five years. Considering said fact his sentence awarded by trial court deserves to be reduced. 8. Accordingly, the appeal is partly allowed. The conviction recorded by the trial court against accused/appellant Ashok under Section 8/20 of N.D.P.S. Act, is affirmed. But, keeping in mind Clause (B) of Clause (ii) of sub-clause (b) of Section 20 of the N.D.P.S. Act, the sentence awarded by the trial court is set aside, and he is sentenced to rigorous imprisonment for a period of four years and to pay a fine of Rs. 20,000/-, in default of payment of which, he is directed to undergo further imprisonment for a period of one year. The sentence already undergone by him during the period of trial and during the period of this appeal, shall be adjusted against the sentence awarded by this Court. Since, the appellant had been in jail during the trial and during period of this appeal for more than five years, he shall be set at liberty, if not required in connection with any other crime. Copy of this judgment be sent to the Superintendent of jail concerned, where the accused/appellant Ashok is serving out the sentence. Trial court record be sent back.