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Himachal Pradesh High Court · body

2012 DIGILAW 71 (HP)

Om Parkash v. State of Himachal Pradesh

2012-03-02

SURINDER SINGH

body2012
JUDGMENT : SURINDER SINGH, J (oral) : The appellant has challenged the judgment of conviction and sentence passed against him in Sessions Trial No.57/04/04, on 19.4.2005 by the learned Additional Sessions Judge (FTC), Chamba, for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short “the Act”, for allegedly keeping in possession 800 grams of Charas, whereby he was sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of `.20,000/- with the default clause. 2. Vide order dated 18th August, 2005, the sentence of the appellant was suspended on his furnishing the bail bonds. When the matter was listed for hearing in the month of December, 2011, neither the appellant nor his counsel put in appearance, as such notice of hearing was issued to him for today, which is duly served, but despite that he is not present. 3. Shri Dushyant Dadhwal, learned counsel submitted that the appellant had taken the brief back from him. Since the appellant was represented and stood served for today and did not put in appearance, as such, Ms. Anita Dogra, Advocate, who is present in the Court and has eight years standing in the Bar, is appointed as a Amicus-curiae. Paper-Book was supplied to her and after sometime the matter was taken up for hearing, she is ready and willing to address the arguments. 4. I have heard Ms. Anita Dogra, learned Amicus-curiae at length. She forcefully argued that there has been non-compliance of the provisions of Section 50 of the Act, as also the alleged recovered stuff does not conform to the definition of the Charas as defined under the Act. She also made a reference to the other evidence on record submitting that the link evidence in the instance case is not complete, therefore, the conviction and sentence of the appellant is bad in law. 5. Contra, Shri R.P. Singh, learned Assistant Advocate General, while supporting the impugned judgment of conviction and sentence, ventilated that if the statement of the Investigating Officer is looked into carefully, it conforms to the requirement of Section 50 of the Act. Further, according to him, the recovered stuff has been opined to be the contents of Charas by the Laboratory and the percentage of the resin has also been mentioned in the report. Further, according to him, the recovered stuff has been opined to be the contents of Charas by the Laboratory and the percentage of the resin has also been mentioned in the report. He also argued that the link evidence in the present case is complete, therefore, no interference is called for. 6. I have given my thoughtful consideration to the rival contentions of the parties and have carefully, meticulously and cautiously reappraised the evidence on record. 7. In short, the prosecution case as borne out from the evidence on record is that on 22nd September, 2003, PW13 ASI Ranjeet Singh was heading the police patrol party at a place in between Ballupul and Parel. Around 12.35 P.M. they noticed appellant, hereinafter referred to as “the accused” at a distance of 300 meters coming from the opposite side having a polythene bag in his hand, who on seeing the police concealed it under his armpit and tried to escape. The police got suspicious and over powered him. They joined independent witnesses PWs 1 & 2 Desh Raj and Sat Pal respectively and obtained the consent from the accused satisfying the ingredients of Section 50 of the Act on the Memo Ext.PB. The accused opted to be searched by the police present there and appended his signatures on the endorsement so made. (ii) The identity of the accused was asked. Thereafter, PW13 ASI Ranjeet Singh rendered himself to be searched by the accused in the presence of independent witnesses, but no incriminating article was recovered. To this effect, a memo was prepared, thereafter he conducted the personal search of the accused and recovered a polythene bag containing 800 grams of Charas from beneath his armpit. (iii) Out of the recovered Charas, he separated two samples of 25 grams each, which were sealed in two separate empty cigarette packets with three seals producing the impression of English alphabet “T”. Remaining bulk was packed in a separate parcel and sealed with the same seal at six places. (iv) Case property was taken into possession vide memo Ext.PA in the presence of independent witnesses. (v) PW13 ASI Ranjeet Singh also took the sample of seal on a separate piece of cloth Ext.P3 signed by the accused as well as by the witnesses. (vi) Accused was arrested and grounds of arrest were informed to him vide memo Ext.PC. (iv) Case property was taken into possession vide memo Ext.PA in the presence of independent witnesses. (v) PW13 ASI Ranjeet Singh also took the sample of seal on a separate piece of cloth Ext.P3 signed by the accused as well as by the witnesses. (vi) Accused was arrested and grounds of arrest were informed to him vide memo Ext.PC. Thereafter he prepared Ruqa Ext.PG and sent through PW4 C. Surinder Kumar to the concerned Police Station for the registration of the case. After preparing NCB forms, one of which is Ext.PO on the spot, he also prepared inventory list Ext.PW13/B. In the meantime, PW14 SI Anjana Sharma, who was deputed by the PW15 Inspector/SHO Khub Ram to investigate the case, on receiving the Ruqa also reached the spot. She inspected the spot, prepared site plan Ext.PW14/A and recorded the statements of the independent witnesses. (vii) Thereafter, PW14 above produced case property before PW15 Inspector/SHO Khub Ram, who resealed it with seal impression “R” and also took its impressions on separate piece of cloth and a memo Ext.PH to this effect was prepared in the presence of PW5 HC Surjeet Singh. The case property was deposited with PW11 MHC Hans Raj. He sent one of the sample parcels for chemical analysis through PW12 C. Raj Kumar vide R.C. which was deposited in the CTL, Kandaghat and on analysis it tested positive. On completion, challan was presented in the Court. After trial, accused was convicted, hence this appeal. 8. On examining the aforesaid prosecution story, as testified by the witnesses, I did not find that there has been a proper compliance of Section 50 of the Act. The perusal of memo Ext.PB reveals, when the search of the accused was conducted by PW13 ASI Ranjeet Singh, contraband was allegedly found concealed under the armpit of the accused, thus on getting suspicious, he gave option to the accused to be searched before the Magistrate or a Gazetted Officer, but this document does not refer anywhere that he informed the accused his right to be searched before the aforesaid Officers. Though in his statement, he has tried to cover up this defect, but in my opinion, it is material contradiction, more specifically, when in the cross-examination, this fact has been disputed. Further the alleged independent witnesses aforesaid did not support the case of the prosecution at all. Though in his statement, he has tried to cover up this defect, but in my opinion, it is material contradiction, more specifically, when in the cross-examination, this fact has been disputed. Further the alleged independent witnesses aforesaid did not support the case of the prosecution at all. The antecedents of PW1 Desh Raj is shady. He was arrested by the police in a theft case and faced the criminal prosecution and insofar as PW2 Sat Pal is concerned, he stated that the accused was not apprehended in his presence and nothing was recovered from him. When both these witnesses were cross-examined by the learned Public Prosecutor, no suggestion was thrown that the Investigating Officer aforesaid had given an option to the accused as stated by him during the trial informing his right to be searched before the Officers mentioned therein. 9. In the instant case, Section 50 of the Act fully applies in view of the judgment passed in Ajmer Singh vs. State of Haryana [2010 (2) SCC 746] and in the judgment of the Constitution Bench of the Apex Court in Vijay Sinh Chandubha Jadeja v. State of Gujarat [ (2011) 1 SCC 609] has held that when the trial of the accused is based on the recovery of contraband on the personal search of the accused, it is mandatory to the Investigating Officer to give him, clear cut option informing his right to be searched before a Magistrate or a Gazetted Officer, failing which it vitiates trial. The object is clearly spelt out by the judgment aforesaid in para-29, while examining its various judgments on this point. It reads as follows:- “29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.” Applying the above settled law to the facts of this case, in my considered opinion, the prosecution has miserably failed to establish the compliance of Section 50 of the Act, thus, it vitiates the trial. 10. Further the report of the analysis Ext.PO reveals that the sample was received in the Laboratory for its analysis on 3.10.2003 through PW12 C. Raj Kumar. The report of analysis which is on the NCB form, does not contain the facsimile of seal used on the spot by the Investigating Officer as well as by the Inspector/SHO. The sample of seals used alleged to have been sent to Laboratory from the evidence is doubtful. The perusal of the report of the analysis shows that the examination of the sample was done by conducting two tests i.e. microscopic examination which contained the presence of cystolithic hair and beams alkaline test found positive. The contents of resin were 27%. On this basis, the Chemical Examiner opined that the exhibit contained the contents of Charas, however, there is no mention that the resin found in the sample was that of Cannabis plant to conform it to the statutory definition to fall it within the purview of contraband. 11. According to the definition of Charas as given in Section 2(iii) (a) of the Act, the stuff to fall in the category of Charas, should be resin of cannabis plant only or the concentrated preparation and resin known as hashish oil or liquid hashish. In other words, the definition does not include other parts, like flowering and fruiting tops, leaves or stem, of cannabis plant. 12. In other words, the definition does not include other parts, like flowering and fruiting tops, leaves or stem, of cannabis plant. 12. ‘Flowering and fruiting tops’ of cannabis plant have been defined to mean ganja, per Section 2(iii)(b) of the Act and when seeds and leaves of the plant accompany such flowering or fruiting tops, they also form part of ganja. When Charas, i.e. resin and/or ganja, i.e. flowering or fruiting tops of the cannabis plant, are mixed, with or without any neutral material, they fall in the category of Mixture of cannabis (hemp), as defined in Section 2(iii)(c) of the Act. 13. Being in possession of cannabis (hemp) is an offence, punishable under Section 20 of the Act. Punishment varies according to the quantity possessed. Quantities are defined as “small” and “commercial” in Sections 2(viia) and 2(xxiiia), respectively. “Small” and “commercial quantities” of Charas, ganja and mixture are different, per Table notified by the Ministry of Finance, Department of Revenue, vide notification No.S.O. 527(E), dated 16th July, 1996, under clauses vii(a) and xxiii(a) of Section 2 of the Act. 14. The Division Bench of this Court had examined the various reports including one of such appear in the case Sunil Kumar vs. State of H.P. and other connected matters [Latest HLJ, 2010 (HP) 207] of which I was also one of the member. After examining various reports in extenso, in view of the statutory definition, we did not find the same in conformity with law. 15. Now reverting to the facts of this case, the opinion of the Chemical Examiner is only to the extent that the sample contained the contents of Charas. For that resin is given 27%, without mentioning whether it was that of the Cannabis plant, which content found in the sample is Charas is not known. Therefore, the said report is not in conformity with law and cannot be made basis for the conviction of the accused. 16. For that resin is given 27%, without mentioning whether it was that of the Cannabis plant, which content found in the sample is Charas is not known. Therefore, the said report is not in conformity with law and cannot be made basis for the conviction of the accused. 16. Further the Investigating Officer stated that the case property vide Inventory list Ext.PW13/B was handed over to SI Anjana Sharma for further investigation and produced the case property before PW15 Inspector/ SHO Khub Ram for resealing, who has further stated to be deposited with MHC in the Malkhana, but the MHC aforesaid did not substantiate the fact of depositing NCB forms in the Malkhana as according to him, it was not the case property, then where these forms were kept is not known. PW11 MHC Hans Raj stated that the sample in this case alongwith some other case having the same seals was also sent for the examination to the Laboratory through PW12 C.Raj Kumar. It is not known how the same seals appear on the case property of another case when the seal was allegedly entrusted to an independent witness in this case. But this is contradicted by C. Raj Kumar and he did not substantiate this fact. He stated that he only took the sample of this very case to the Laboratory. Even the copy of the Road Certificate has not been placed and proved on record. He also did not say about taking of the NCB forms alongwith sample. Further, the report of the analysis shows that the sample was received in the Laboratory on 3.10.2003 when it was entrusted to him on 1.10.2003. There is no explanation where this case property remained for two days before its deposit, which raises a doubt on the probity of the prosecution case. 17. In the totality of the above circumstances, in my opinion, the prosecution could not prove the charge against the accused beyond reasonable doubt and in no case and no way the presumption under Section 35 of the Act the culpable mental state of the accused or under Section 54 for the Act for possessing the illicit articles can be drawn, as such, judgment of conviction and sentence passed by the learned trial Court against the accused is hereby set-aside. Consequently, the appeal is allowed and the accused is acquitted by giving him the benefit of doubt. Consequently, the appeal is allowed and the accused is acquitted by giving him the benefit of doubt. Fine amount, if any, deposited, be refunded to the accused after the statutory period. The appeal is accordingly disposed of. 18. The respondent is hereby discharged of his bail bonds entered upon by him during the proceedings of the case. 19. While disposing of this case, I record the word of appreciation for the assistance rendered by Ms. Anita Dogra, learned Amicus-curiae. 20. The matter stands disposed of. Send down the record.