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2012 DIGILAW 339 (HP)

MAN BAHADUR THAPA v. STATE OF HIMACHAL PRADESH

2012-06-14

SURINDER SINGH

body2012
JUDGMENT : Surinder Singh, J. 1. The appellant a Nepali, was convicted by the learned trial Court for the offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short "the Act" in Sessions Trial No. 3 of 2009, decided on 18.5.2009, for allegedly keeping in his possession less than the commercial quantity, i.e. 815.5 grams of "Charas" in the recovered stuff of 3.5 kilograms, which was kept wrapped in gunny bag Ext. P-4 and the same was further concealed in a Pithu bag, Ext. P-5 and sentenced to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year. Hence, the challenge in the present appeal. The prosecution story can be stated thus. On 12.11.2008, PW-10 Head Constable Bhagi Ram alongwith PW-2, HHC Kartar Singh, PW-4 Constable Khem Singh and SPO Parvinder Kumar were on patrol duty at Bhalei Nallah in Chamba District falling under the jurisdiction of Police Station, Kheri. Around 7.45 a.m., they came across PW-1 Raj Kumar who was accompanied by Ravi Kumar. Simultaneously, the appellant, hereinafter referred to as "the accused" came from the side of village Kandi, having a Pithu bag on his back, who on seeing the police party, tried to escape. On suspicion, he was apprehended in the presence of PW-1 Raj Kumar and Ravi Kumar, independent witnesses. His identity was asked and police conducted the search of his Pithu bag and recovered 3.5 kilograms stuff, which according to PW-10 Head Constable Bhagi Ram, was "Charas". Out of the recovered stuff, two samples of 25 grams each, were separated and sealed with seal impression "T". The remaining "Charas" was also sealed with the same seal. The seal impression was taken on a piece of cloth Ext. PW-1/B. The relevant columns of NCB forms in triplicate were filled in on the spot, one of such form is Ext. PW-10/A: (i) The case property was taken into possession vide memo Ext. PW-1/A in the presence of PW-1 Raj Kumar and Ravi Kumar which was thumb marked by the accused and signed by the independent witnesses, aforesaid. (ii) PW-10 Head Constable Bhagi Ram prepared Rukka Ext. PW-10/B and it was sent through PW-2 HHC Kartar Singh to SHO, Police Station Kheri for the registration of the case. PW-1/A in the presence of PW-1 Raj Kumar and Ravi Kumar which was thumb marked by the accused and signed by the independent witnesses, aforesaid. (ii) PW-10 Head Constable Bhagi Ram prepared Rukka Ext. PW-10/B and it was sent through PW-2 HHC Kartar Singh to SHO, Police Station Kheri for the registration of the case. Its copy was also sent through PW-4 Constable Khem Singh to the Superintendent of Police, Chamba. (iii) The accused was arrested and the grounds of arrest were informed to him. He opted not to inform any other person, but despite that, as per the report, his friend Moti Lal was informed. (iv) Thereafter, PW-11 ASI Ashok Kumar reached the spot on the direction of PW-12 Sub Inspector/SHO Kanwar Singh Guleria. PW-10 aforesaid handed over him the NCB forms as well as the case property vide inventory Ext. PW-10/C. Thereafter PW-11 aforesaid inspected the spot, prepared Site Plan Ext. PW-11/A and recorded statements of the witnesses u/s 161 of the Code of Criminal Procedure. (v) The case file and the case property were produced by PW-11 ASI Ashok Kumar before PW-12 SHO/Sub Inspector Kanwar Singh Guleria. PW-11 aforesaid also handed over the seal having impression "T" and NCB form Ext. PW- 10/A to him, who thereafter resealed the case property with seal impression "K" and also took its impression on a piece of cloth Ex. PW-12/B and filled in one of the columns in the NCB form Ext. PW-10/A. With respect to the resealing, he issued certificate Ext. PW-12/C. Thereafter, he deposited the case property with PW-7 MHC Tilak Raj. Its entry was made in the Malkhana register. The abstract of the Malkhana register is Ext. PW-7/A. (vi) A special report was prepared and sent to the Superintendent of Police concerned within the statutory period. (vii) On 14.11.2008, one of the sample parcels was sent to FSL Junga for its examination through PW-9 Constable Chaman Lal vide R.C. No. 82/2008 Ext. PW 7/B alongwith NCB form and the sample of seals. On its deposit, he obtained its receipt from the official in the Laboratory and handed over back to the MHC. (viii) On examination of the sample aforesaid, the Assistant Chemical Examiner of the State Forensic Science Laboratory, Junga issued examination report Ext. PW-12/D. The sample, so sent, inter-alia contained the resin to the extent of 23.03% weight-in-weight. On its deposit, he obtained its receipt from the official in the Laboratory and handed over back to the MHC. (viii) On examination of the sample aforesaid, the Assistant Chemical Examiner of the State Forensic Science Laboratory, Junga issued examination report Ext. PW-12/D. The sample, so sent, inter-alia contained the resin to the extent of 23.03% weight-in-weight. In the opinion of the Assistant Chemical Examiner, the entire stuff examined was a mixture of cannabis and the sample of "Charas." 2. After completing the investigation, challan was presented in the Court for the trial of the accused for the offence aforesaid. He was accordingly chargesheeted, to which he pleaded not guilty and claimed trial. 3. To prove its case, the prosecution examined its witnesses. The accused was also examined u/s 313 of the Code of Criminal Procedure. His case was denial simplicitor. According to him, he had gone to Bazaar where he was caught by the police and a case was foisted upon him. When called upon to enter his defence, he did not lead any evidence in defence. 4. At the end of the trial, the accused was convicted and sentenced by the learned trial Court for the offence aforesaid 5. Shri Anil Chauhan, learned Counsel for the accused vehemently argued that there is a material contradiction with respect to the metal of the seal as PW-2 HHC Kartar Singh stated that it was of iron, whereas other witnesses stated that it was aluminum seal. He also ventilated that the sample taken was 25 grams which was sent for analysis, but it turned out to be 25.902 grams on its receipt in the laboratory coupled with the fact that PW-1 Raj Kumar stated that the "Bhang" was recovered from the possession of the accused, whereas other witnesses stated about the recovery of "Charas", which casts a doubt in the prosecution case. 6. Contra, Shri P.M. Negi, while supporting the impugned judgment of conviction and sentence forcefully argued that the recovery, in the instant case, from the accused stands duly proved. The prosecution version stands duly supported by the official witnesses as well as the independent witnesses. Further, the link evidence, in the instant case, is complete. The alleged discrepancies, as pointed out by the learned Counsel for the accused, are of very minor nature, which do not go to the root of the case. The prosecution version stands duly supported by the official witnesses as well as the independent witnesses. Further, the link evidence, in the instant case, is complete. The alleged discrepancies, as pointed out by the learned Counsel for the accused, are of very minor nature, which do not go to the root of the case. He also argued that the difference of weight of the sample may be attributable to the fact that it was weighed in the laboratory on the electronic scales whereas the similar scales were not used by the Investigating Officer on the spot. Otherwise also, this is an ignorable increase especially when the sample is proved to have reached the laboratory untempered. 7. I have given my thoughtful consideration to the rival contentions of the parties and carefully scanned the evidence on record. 8. PW-10 Head Constable Bhagi Ram has fully corroborated the prosecution case with respect to the recovery of the incriminating article from the possession of the accused kept in a gunny bag, which was weighed on the spot. He further stated about the inclusion of PW-1 Raj Kumar and Ravi Kumar during the search and seizure and that out of the recovered stuff, two samples of 25 grams each were separated and sealed with seal impression "T" and the remaining bulk in the gunny bag was sealed with the same seal. He also drew seal impression "T" on a piece of cloth. Its facsimile was affixed on the NCB forms, one of which is Ext. PW-10/A. The case property was taken into possession vide memo Ext. PW-1/A and this fact also finds mention therein. Independent witness PW-1 Raj Kumar supported his version. He identified his signatures on the recovery memo and stated about the recovery of the incriminating substance from the accused, but according to him, it was "Bhang". PW-1 Raj Kumar is a local person and the localitas also refer the "Charas" as "Bhang" or "Sulfa" or "Shivji Ki Buti", by whatever name it is called, it has been proved to be an offensive matter (Charas). It stands proved that two samples of 25 grams each were separated out of the recovered stuff which were duly sealed on the spot. It tested positive for "Charas". During the trial PW-1 Raj Kumar identified it to be the same. According to him, Pithu bag Ext. It stands proved that two samples of 25 grams each were separated out of the recovered stuff which were duly sealed on the spot. It tested positive for "Charas". During the trial PW-1 Raj Kumar identified it to be the same. According to him, Pithu bag Ext. P-4 is also the same to which the accused was carrying and it contained the same stuff Ext. P-5 wrapped in a gunny bag, to which he addressed "Bhang". But the fact remains that it was a contraband defined as "Charas" under the Act. 9. The Investigating Officer as well as PW-1 categorically stated that the seal which was used on the spot was of aluminum. But PW-2 HHC Kartar Singh in his crossexamination stated that it was of iron metal. It has not come anywhere that there was a difference of impression of the letters in both the seals. Rather, it has come categorically on record in the statements of the witnesses that the seal used on the spot was of the impression of English letter "T". PW-1 Raj Kumar, the Independent witness and PW-10 Head Constable Bhagi Ram were meticulously examined on this and various aspects, but nothing material could be extracted. Even, PW-2 HHC Kartar Singh and PW-4 Constable Khem Singh has supported the case of the prosecution mutatis mutandis qua the recovery, sampling and sealing process but nothing material could be extracted which could shake the very foundation of the prosecution case. 10. Further, PW-11 ASI Ashok Kumar recovered the case property from PW-11 aforesaid vide Inventory Ext. PW-10/B in the same shape. He produced it before PW- 12 SHO/Sub Inspector Kanwar Singh Guleria for resealing. PW-12, aforesaid resealed it with seal impression "K" and issued his certificate Ex. PW-12/C to this effect and thereafter he deposited it in the same condition with PW- 7 MHC, Tilak Raj alongwith sample of seals and NCB forms. Its entry was duly made in the Malkhana register and on 14.11.2008 it was sent through PW- 9 Constable Chaman Lal to the laboratory vide Road certificate Ext. P.W. 7/B alongwith police docket and there is a mention of the documents which accompanied the sample. On its deposit, receipt was obtained from the Laboratory. 11. The report of the Assistant Chemical Examiner, Ext. PW-12/D reveals that the sample parcel contained four seals of "T" and four seals of "K". P.W. 7/B alongwith police docket and there is a mention of the documents which accompanied the sample. On its deposit, receipt was obtained from the Laboratory. 11. The report of the Assistant Chemical Examiner, Ext. PW-12/D reveals that the sample parcel contained four seals of "T" and four seals of "K". The seals were found intact and tallied with the seal impression sent by the SHO on the NCB-I. The sample was kept in safe custody of the Assistant Chemical Examiner during examination and till the report of the same was signed and dispatched. It also reveals that the sample so analyzed was sent back with the seal of the Laboratory. The Assistant Chemical Examined issued the report on 5.12.2008. The marginal increase in the weight of sample is ignorable, especially when the sample reached the Laboratory without tampering, which fact is not challenged in the statements of MHC and Constable taking sample to the Laboratory. 12. Therefore, in the instant case, on the scrutiny of the aforesaid evidence, I find that the accused was in possession of the recovered stuff 3.5 kilograms in weight, containing the resin of cannabis (23.03% weight-inweight), which is defined as "Charas" as per the Act and it came out to be "Charas" weighing 815.5 grams. The learned trial Court in view of the law laid down by the Division Bench of this Court in Dharampal Versus State of Himachal Pradesh 2008 (1) Crimes 337 (HP) convicted and sentenced the accused for keeping in his possession less than the commercial quantity of the contraband and sentenced him, as aforesaid. 13. In view of the above position, the learned Counsel for the appellant argued that in the facts and circumstances of the case, the sentence imposed upon the accused is quite harsh and lenient view may be taken keeping in view the age of the accused. I have considered this aspect of the case. The substantive sentence is already on the lower side keeping in view the resin content found in the possession of the accused. So far as the fine is concerned, it appears to be a little bit higher and it is reduced to Rs. 80,000/- and in default of payment of fine, instead of sentencing the accused to rigorous imprisonment for a period of one year, it is ordered to be reduced to six months. 14. So far as the fine is concerned, it appears to be a little bit higher and it is reduced to Rs. 80,000/- and in default of payment of fine, instead of sentencing the accused to rigorous imprisonment for a period of one year, it is ordered to be reduced to six months. 14. For the above reasons, the appeal subject to the above modifications in the fine and its default clause, stands dismissed. 15. The learned trial Court shall send the modified warrants qua the fine and default clause above, without disturbing the substantive sentence to the Superintendent jail concerned in conformity with this judgment. Send down the records.