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2011 DIGILAW 515 (HP)

Trilochan Singh v. State of H. P.

2011-02-22

SURINDER SINGH

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JUDGMENT SURINDER SINGH, J In the present appeal, appellant has challenged his conviction and sentence passed in Sessions Trial No.4 of 2009, decided on 1st December, 2009, for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’, allegedly for keeping in possession of 157.65 grams of Charas in the recovered stuff of 650 grams. 2. In short, the prosecution story as emerges from the evidence on the record can be stated thus. On 24.11.2008 PW10 Head Constable Dev Raj was heading the police party. They were on routine traffic checking and patrolling near “Ballu bridge” in District Chamba, they spotted the appellant coming from opposite side, who on seeing the police turned back and tried to run away. On suspicion, he was apprehended in the presence of PW1 Haniff and PW2 Rakesh Kumar who incidentally happened to be present on the spot. The appellant was having a bag in his right hand, it was found containing polythene envelope, containing 650 grams of Charas. Out of the recovered quantity, two samples of 25 grams each were separated and were put in different parcels. Each of the parcels was sealed with seal “A” and the remaining Charas was also sealed with the same seal. The case property was taken into possession vide memo Ext.PW1/A. Police also filled-in NCB forms in triplicate and one of which is Ext.PW9/E. The facsimile of the seal was also affixed on the NCB forms. One sample of the specimen seal was also taken. It is Ext.PW1/B. 3. Police sent Ruqa Ext.PW8/A for the registration of the case to the Police Station, which culminated into FIR Ext.PW9/A. 4. The appellant was arrested and the grounds of arrest were informed to him. Police also prepared the site plan of the alleged place of recovery. 5. The special report was sent to Superintendent of Police concerned within statutory period. 6. Case property was produced before PW9 SI/SHO Diwan Chand. He resealed it with his own seal producing the impression of English letter “H”. Seal sample was taken separately. It is Ext.PW9/C and resealing memo Ext.PW9/D was also prepared. The relevant columns were filled-in by the said Sub Inspector. NCB forms and the seizure memos were deposited with PW12 MHC Kailash Chand. Its entry was made in the Malakhana register. The abstract is Ext.PW12/A. 7. Seal sample was taken separately. It is Ext.PW9/C and resealing memo Ext.PW9/D was also prepared. The relevant columns were filled-in by the said Sub Inspector. NCB forms and the seizure memos were deposited with PW12 MHC Kailash Chand. Its entry was made in the Malakhana register. The abstract is Ext.PW12/A. 7. On 25.11.2008, one sample parcel alongwith NCB form, seizure memo and photocopy of the FIR were sent to the Forensic Science Laboratory, Junga through PW6 HHC Des Raj vide RC Ext.PW12/B. The sample was analyzed in Laboratory and it tested positive for Charas. The report is Ext.PX. 8. On the completion of the investigation, the case was presented in the Court against the appellant for his trial. The appellant was accordingly charge-sheeted for the offence aforesaid and at the end of trial he was convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of ` 20,000/-, in default of payment of fine he was further ordered to undergo imprisonment for six months. 9. During the arguments the learned Counsel for the appellant did not seriously challenge the conviction of the appellant, but submitted that the sentence is disproportionate to the alleged quantity of contraband recovered. On the scrutiny of evidence on record, I find that the Investigating Officer (PW10) has fully corroborated the prosecution case with respect to the recovery and seizure. He also testified that two samples of the recovered stuff were separated and sealed as stated above and further that after completing all the formalities the case property was produced before PW9 SI/SHO Diwan Chand, who received and resealed it and deposited in the Malkhana. PW12 MHC Kailash Chand corroborates this version and stated having so deposited and entry was made in the relevant register. Further, according to him, one of the samples was sent through PW6 HHC Des Raj for analysis alongwith the relevant documents mentioned in the RC Ext.PW12/B, which includes NCB forms and sample of seals used. In the Laboratory the sample tested positive for Charas and the quantity of the resin of cannabis plant was detected in the Laboratory to the extent of 24.27% weight in weight. 10. The case of the appellant was denial simplicitor. No specific defence was put in the cross-examination of the official witnesses aforesaid. Even no dent could be caused to their version. 10. The case of the appellant was denial simplicitor. No specific defence was put in the cross-examination of the official witnesses aforesaid. Even no dent could be caused to their version. However, the independent witnesses PW1 Haniff and PW2 Rakesh Kumar did not support the case of the prosecution, but admitted their signatures on various documents prepared by the police on the spot. Nothing has been brought on the record nor pointed out as to why the official witnesses deposed against him. I find that their statements are consistent, without material contradictions and worth inspiring confidence. The link evidence is complete. Thus conviction of the appellant cannot be faulted with and was rightly recorded by the learned trial Court in view of law laid down by the Division Bench of this Court in Dharam Pal v. State of HP 2008 (1) Crimes 337 (HP) for keeping in possession of Charas lesser than the ‘commercial quantity’ and grater than the ‘smaller quantity’ based upon the percentage of resin. 11. In view of the quantity of the Charas found in the recovered stuff, which comes to 157.65 grams, the substantive sentence appears to be bit excessive and it is required to be reduced to one year and nine months from three years as awarded by the learned trial Court without disturbing the fine and default clause. Since the appellant also remained in the custody with effect from 24.11.2008 to 5.12.2008, i.e., for 11 days, he is given the benefit of Section 428 of the Code of Criminal Procedure. Ordered accordingly. 12. The learned trial Court is directed to send amended jail-warrant to the Superintendent of concerned jail in conformity with this judgment. Appeal stands accordingly disposed of.