Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 662 (HP)

Guman Singh v. State of H. P.

2013-07-15

Dharam Chand Chaudhary

body2013
JUDGMENT Dharam Chand Chaudhary, J. This judgment shall dispose of the present appeal preferred by convict Guman Singh, (hereinafter referred to as accused No.1) alongwith Criminal Appeal No.151/2013 preferred by convict Surender Kumar, (hereinafter referred to accused No.3) and Criminal Appeal No.152/2013 preferred by convict Suresh Kumar, (hereinafter referred to as accused No.2), arising out of the same judgment passed by learned Special Judge, Kullu, on 20.3.2012 in Sessions Trial No.22/2012, whereby they all have been convicted under Section 20 read with Section 29 of the Norcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as ‘the Act’ in short), and sentenced to undergo rigorous imprisonment for 9 years and to pay fine of Rs.90,000/- each. 2. Prosecution case, as disclosed from the report under Section 173 Cr. P.C. and the documents annexed therewith, is that on 15.12.2010 at 5 p.m., PW-7 HC Nand Lal accompanied by PW-4 HC Laxman Dass, Constable Rahul Kumar and Constable Ashu Pal, left Police Station, Bhuntar for patrolling and traffic checking towards Jarad, Hurla and Thras in Govt. vehicle, being driven by Constable Dinesh Kumar. Rapat No.29(A) Ext.PW3/C to this effect was entered in the Rojnamcha. The police party spotted a Tata Specio vehicle bearing registration No.HP-01M-0472, coming from Hurla side. PW-7 HC Nand Lal signalled its driver to stop the same. The driver stopped the vehicle and the police party found three persons, including the driver, occupying the same. The person occupying the left side front seat had kept one bag (rucksack) of BONENO trademark in his lap. PW-7 HC Nand Lal asked for the documents of the vehicle from its driver. He, in turn, produced its permit. Thereafter PW-7 checked the rucksack in the lap of the person occupying the left side front seat. On search of the same, one polythene bag, having trademark “The Better Choice” on its both sides, was found to be kept therein. On checking the same, some contraband in rectangular shape, which smelled like Charas, was found to be kept therein. It was a lonely place and there was no scope of joining any local witness. Therefore, PW-4 HHC Laxman Dass was sent to the nearby area in order to bring someone for being associated as independent witness. He, however, failed to bring anyone being not available. PW-7 HC Nand Lal, therefore, associated PW-4 HHC Laxman Dass and Constable Ashu Pal to witness the search and seizure. Therefore, PW-4 HHC Laxman Dass was sent to the nearby area in order to bring someone for being associated as independent witness. He, however, failed to bring anyone being not available. PW-7 HC Nand Lal, therefore, associated PW-4 HHC Laxman Dass and Constable Ashu Pal to witness the search and seizure. In their presence, the person on the wheel of Tata Specio disclosed his name Suresh Kumar (accused No.2), the person occupying the front seat in left side as Guman Singh High Court of H.P. 4 (accused No.1) and the person sitting on rear seat as Surender Kumar (accused No.3). 3. The recovered Charas was weighed with electronic scale, the Investigating Officer was carrying with him and it was found 935 grams. The same was kept in that very polythene bag and put in the rucksack, which accused No.1 had kept in his lap. Rucksack thereafter was put into a cloth parcel, which was sealed with seal impression “A”. The sample of seal Ext.PW4/A was obtained separately on a piece of cloth. NCB-I Form Ext.PW5/B was filled in triplicate. The seal after its use was handed over to PW-4 Laxman Dass. The recovered Charas sealed in the parcel was taken into possession vide recovery memo. Ext.PW4/B. 4. As per further case of the prosecution, accused No.2 and 3 had due knowledge and notice of accused No.1 being in possession of Charas and carrying same with him. Therefore, on finding the involvement of accused No.1 in the commission of offence punishable under section 20, whereas that of accused No.2 and 3 under Section 29 of the Act, Rukka Ext.PW2/A was prepared at 6.25 p.m. and handed over to PW-4 HHC Laxman Dass for being taken to Police Station, Bhuntar for registration of the case. On receipt of Rukka Ext.PW2/A, PW-2 S.I. Jaspal Singh registered the FIR Ext.PW2/B and made endorsement Ext.PW2/C on the Rukka. Thereafter he handed over the file to PW-4 with a direction to take the same to the Investigating Officer on the spot. The I.O. also prepared the spot map Ext.PW7/A. The vehicle Tata Specio was taken into possession alongwith its documents and key vide recovery memo. Ext.PW4/C. Accused persons were arrested and made aware of the grounds of arrest vide memo. Ext.PW4.E to Ext.PW4/G. 5. The I.O. also prepared the spot map Ext.PW7/A. The vehicle Tata Specio was taken into possession alongwith its documents and key vide recovery memo. Ext.PW4/C. Accused persons were arrested and made aware of the grounds of arrest vide memo. Ext.PW4.E to Ext.PW4/G. 5. On completion of investigation on the spot, the Investigating Officer brought the accused persons and also the case property to the Police Station and reached there at 9.30 p.m. He produced the case property alongwith NCB(I) Form in triplicate before PW-5 SI/SHO Narain Singh, who resealed the case property with seal impression “T” and obtained sample of seal Ext. PW5/A. Rapat No.39 (A) Ext.PW3/D to this effect was also entered in the Rojnamcha. The case property thereafter was deposited by PW-5 SI/SHO Narain Singh in the Malkhana. The extract of Malkhana register is Ext.PW3/A. The case property thereafter was sent to FSL Junga vide RC Ext.PW3/B through PW-4 HHC Laxman Dass, who deposited the same in the laboratory and produced the receipt before MHC on his return to the Police Station. The Investigating Officer also prepared Special Report Ext.PW1/A and delivered the same to Dy. Superintendent of Police, Kullu. The entries Ext.PW1/B to this effect were made in the relevant register. 6. On the completion of investigation and receipt of report Ext.PW5/D from the laboratory, PW-5 SI/SHO Narain Singh filed report under Section 173 Cr. PC. against all the accused persons in the trial Court. 7. In view of the evidence collected by the Investigating Officer, learned trial Judge has framed charge under Section 29 of the Act against accused No.1, whereas under Section 29 read with Section 20 of the Act against accused Nos.2 and 3. They, however, pleaded not guilty and claimed trial. Therefore, learned trial Court after recording the prosecution evidence and also the statements under Section 313 Cr. P.C. of the accused persons, heard the matter finally and arrived at a conclusion that the prosecution has proved its case against all the accused persons beyond all reasonable doubt. Consequently, they have been convicted and sentenced as pointed out hereinabove at the outset. 8. Accused No.1 has questioned the legality and validity of the impugned judgment on the sole ground that the evidence, as has come on record, has not been appreciated in its right perspective. Consequently, they have been convicted and sentenced as pointed out hereinabove at the outset. 8. Accused No.1 has questioned the legality and validity of the impugned judgment on the sole ground that the evidence, as has come on record, has not been appreciated in its right perspective. The testimony of PWs 1 to 4 and PW7 could have not been relied upon being police witnesses and highly interested in the success of the prosecution case. Also that the material contradictions in the statements of the witnesses have been erroneously ignored. The non-examination of Constables Ashu Pal and Rahul Kumar is also stated to be fatal to the prosecution case. The recovery of Charas from the conscious possession of the accused persons is stated to be not at all proved. The presumption under Section 54 of the Act is also stated to be erroneously drawn. 9. On the other hand, the challenge to the impugned judgment by accused No.2 and 3 is on the sole ground that for want of evidence, suggesting that contraband was recovered from them, no findings of conviction could have been recorded. In this behalf it is submitted that it was a commercial vehicle and the person, from whose possession the Charas recovered, was travelling independently and they were not in the knowledge of the said person carrying Charas with him. Therefore, even if it is believed that Charas was recovered, no liability can be fastened in this regard upon them. The admissibility of the report of Chemical Examiner has also been questioned on the ground that the same is not in conformity with the law laid down in this behalf. The statements under Section 313 Cr. P.C. of accused persons are stated to be recorded in a casual manner, without giving them opportunity to explain the incriminating circumstances appearing against them in prosecution evidence. The questions put to accused No.1 were put to them also. They were not apprised of their valuable right of recording their statements under Section 313 Cr. P.C. 10. P.C. of accused persons are stated to be recorded in a casual manner, without giving them opportunity to explain the incriminating circumstances appearing against them in prosecution evidence. The questions put to accused No.1 were put to them also. They were not apprised of their valuable right of recording their statements under Section 313 Cr. P.C. 10. Learned counsel appearing on behalf of accused No.1 has made threefold submission, firstly that for want of legal and acceptable evidence qua recovery of contraband, allegedly Charas, the liability cannot be fastened upon the said accused, secondly the testimony of PW-6 Rajinder Kumar, Forest Guard, the so called independent witness, having turned hostile to the prosecution, has caused major dent in the prosecution story and thirdly the contradictions appearing in the statements of the prosecution witnesses go to the very root of the prosecution case and as such, according to learned counsel, no findings of conviction could have been recorded against accused No.1. 11. On the other hand, Mr. Satyen Vaidya, Advocate, assisted by Mr. Vivek Sharma, advocate, has contended that there being no evidence available on record, suggesting that accused No.2 and 3 were in the knowledge and notice of accused No.1 carrying Charas in the bag, no criminal liability can be fastened on them nor could they have been convicted in this case. It is canvassed that the vehicle being commercial one, its occupants, including the driver, cannot be held liable for any act attributed to a particular occupant, especially when the Investigating Officer did not make any effort to show that there was proximity between the accused persons and were known to each other. 12. On the other hand, learned Additional Advocate General while repelling the contentions raised on behalf of the accused persons, has forcefully contended that since the accused were travelling in the same vehicle, therefore, the Charas in question has been recovered from their conscious and physical possession. According to learned Additional Advocate General, all the accused persons have rightly been convicted and sentenced by learned trial Court by raising presumption under Section 35 and 54 of the Act and as such, the impugned judgment calls for no interference. 13. Having gone through the entire evidence and also critically analyzing the rival contentions, the pivotal question around which the controversy revolves, is the recovery of Charas from the conscious and physical possession of the accused persons. 13. Having gone through the entire evidence and also critically analyzing the rival contentions, the pivotal question around which the controversy revolves, is the recovery of Charas from the conscious and physical possession of the accused persons. As a matter of fact, the gravamen to constitute the commission of offence punishable under section 20 and for that matter 29 also, is the recovery of the Charas from the conscious and exclusive possession of the accused. It has been held so by Hon’ble Apex Court in Jagdish Rai Vs. State of Punjab, (2011) 4 SCC 571 . 14. The question whether the prosecution has been able to prove the recovery of Charas from all the accused persons or any of them, needs reappraisal of the evidence on record. 15. The documentary evidence in the form of Rukka Ext.PW2/A, recovery memo. Ext.PW4/B and special report Ext.PW1/A, reveals that it is accused No.1, occupying left side front seat, was carrying rucksack Ext.P2 having kept the same in his lap. On search of Ext.P2, one polythene bag Ext.P3 was found to be kept therein. On taking out the polythene bag Ext. P3 and its checking, Charas Ext.P4 in rectangular shape, was found to be kept therein. This part of the prosecution case finds corroboration from the testimony of PW-4 HHC Laxman Dass and PW-7 HC Nand Lal, I.O. No doubt in Rukka Ext.PW2/A and special report Ext. PW1/A there is reference that accused No.2 and 3 had due knowledge and notice of the factum of accused No.1 being in possession of the Charas and carrying the same in rucksack Ext. P2 with him, however, PWs 4 and 7, who as a matter of fact, are material prosecution witnesses in this case, have not uttered even a single word in this behalf. During the investigation also, the Investigating Officer seems to have not made any effort to show as to how accused No.2 and 3 were knowing that accused No.1 was carrying Charas with him. There is no evidence available on record nor any investigation conducted to show any proximity, friendship or relationship inter se the accused persons. True it is that the accused persons, more particularly accused No.2 Suresh Kumar, who was on the wheel of the vehicle, did not explain during the course of trial as to in which capacity accused Nos. There is no evidence available on record nor any investigation conducted to show any proximity, friendship or relationship inter se the accused persons. True it is that the accused persons, more particularly accused No.2 Suresh Kumar, who was on the wheel of the vehicle, did not explain during the course of trial as to in which capacity accused Nos. 1 and 3 were travelling in the vehicle in question, however, the onus was first on the prosecution to have established that accused No.2 was in the knowledge of accused No.1 carrying Charas with him and it is thereafter the onus to prove otherwise, would have shifted upon him and for that matter accused No.3. Mr. Vaidya has, therefore, very appropriately contended that in view of there being no evidence produced against accused No.2 and 3 by the prosecution, there was nothing for them to be rebutted in their defence. 16. Learned Additional Advocate General has placed reliance on the judgment of Apex Court in Madan Lal and another Vs. State of H.P, (2003) 7 SCC 465, and on the strength of the ratio of this judgment, it is contended that the accused persons, who were travelling in the same vehicle can legitimately be expected to have the knowledge of illicit trafficking of contraband, i.e. Charas, by accused No.1. This judgment is, however, distinguishable on facts for the reason that the vehicle, in the case before the Apex Court, was a private vehicle and there was evidence, suggesting that the persons occupying the same were known to each other; whereas in the present case, the vehicle, admittedly, was commercial, and there is no iota of evidence, suggesting that the accused were known to each other and that accused No.2 and 3 had due knowledge and notice of accused No.1 carrying Chars with him. Similarly, the ratio of judgment in State of Rajasthan Vs. Islam and others, (2011) 6 SCC 343 , relied upon by learned Additional Advocate General, is not applicable in the given facts and circumstances of this case for the reason that the vehicle involved in the case before the Apex Court, was private and it is for this reason, the Apex Court has arrived at a conclusion that both the occupants were carrying opium weighing 650 kgs. in its dickey. in its dickey. This, however, is not the position in the present case, as here the vehicle involved is commercial vehicle and there is no evidence that accused No.2 and 3 had knowledge of accused No.1 carrying Charas with him. 17. If coming to the judgment, again that of Apex Court in Harjit Singh Vs. State of Punjab, (2011) 4 SCC 441 , relied upon by learned Additional Advocate General, it was again a case where the contraband was being carried in a bag by the pillion rider going on the motor-cycle and his coaccused driving the motorcycle, on seeing the police, tried to flee away, however, unsuccessfully, because of being nabbed by the police there and then. It is in this backdrop, the Apex Court has held that both the persons, i.e., the driver of the motorcycle and the pillion rider were carrying the contraband and had due knowledge and notice thereof. 18. On the other hand, the arguments addressed on behalf of accused No.2 and 3 find support from the judgment of the Apex Court in Avtar Singh and others Vs. State of Punjab, (2002) 7 SCC 419 , In that case also, the poppy husk weighing 640 kgs was being transported in a truck. The truck, besides its driver, was being occupied by a person sitting in the cabin and three others, who were sitting on poppy husk bags in its loaded portion. Out of them, the person sitting in the cabin and one, out of the three persons sitting on poppy husk bags in the loaded portion of the truck, managed their escape by fleeing away and it is in this background coupled with the factum that the truck was a private carrier, the Apex Court has held that none of the occupants of the truck can be held liable for illicit trafficking of poppy husk. The relevant portion of the judgment reads as under: “6. Possession is the core ingredient to be established before the accused in the instant case are subjected to the punishment under Section 15. If the accused are found to be in possession of poppy straw which is a narcotic drug within the meaning of Clause (xiv) of S. 2, it is for them to account for such possession satisfactorily; if not, the presumption under Section 54 comes into play. If the accused are found to be in possession of poppy straw which is a narcotic drug within the meaning of Clause (xiv) of S. 2, it is for them to account for such possession satisfactorily; if not, the presumption under Section 54 comes into play. We need not go into the aspect whether the possession must be conscious possession. Perhaps taking clue from the decision of this Court in Inder Sain Vs. State of Punjab ( 1973 (2) SCC 372 ) arising under the Opium Act, the learned trial Judge charged the accused of having conscious possession of poppy husk.……………………………………………..………………………………………………………….………………………………………………………………..………………………………………………………. No investigation has been directed to ascertain the role played by each of the accused and the nexus between the accused and the offending goods. The word 'possession' no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants - one of whom was driving the vehicle and other two sitting on the bags, were having such custody or control? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from evidence that the appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made them selves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to* be in possession of the goods. For instance, if they are labourers engaged merely for loading and unloading purposes and there is nothing to show that the goods were at least in their temporary custody, conviction under Section 15 may not be warranted. At best, they may be abettors, but, there is no such charge here. True, their silence and failure to explain the circumstances in which they were traveling in the vehicle at the odd hours, is one strong circumstance that can be put against them. At best, they may be abettors, but, there is no such charge here. True, their silence and failure to explain the circumstances in which they were traveling in the vehicle at the odd hours, is one strong circumstance that can be put against them. A case of drawing presumption under Section 114 of the Evidence Act could perhaps be made out then to prove the possession of the accused, but, the fact remains that in the course of examination under Section 313 Cr.P.C., not even a question was asked that they were the persons in possession of poppy husk placed in the vehicle. The only question put to them was that as per the prosecution evidence, they were sitting on the bags of poppy husk. Strangely enough, even the driver was questioned on the same lines. The object of examination under S. 313, it is well known, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. It is unfortunate that no question was asked about the possession of goods. Having regard to the charge of which appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this state of things, it is not proper to raise a presumption under Section 114 of Evidence Act nor is it safe to conclude that the prosecution established beyond reasonable doubt that the appellants were in possession of poppy husk which was being carried by the vehicle. The High Court resorted to the presumption under Section 35 which relates to culpable state of mind, without considering the aspect of possession. The trial court invoked the presumption under S. 54 of the Act without addressing itself to the question of possession. The approach of both the courts is erroneous in law. Both the courts rested their conclusion on the fact that the accused failed to give satisfactory explanation for travelling in the vehicle containing poppy husk at an odd hour. But, the other relevant aspects pointed out above were neither adverted to nor taken into account by the trial court and the High Court. Non-application of mind to the material factors has thus vitiated the judgment under appeal.” 19. But, the other relevant aspects pointed out above were neither adverted to nor taken into account by the trial court and the High Court. Non-application of mind to the material factors has thus vitiated the judgment under appeal.” 19. The position in the case in hand is more or less similar different as here also the rucksack Ext.P2, from which the contraband, allegedly Charas, has been recovered, was being carried by accused No.1, by keeping the same in his lap and the vehicle, being taxi, was commercial. Again, the Apex Court in Sorabkhan Gandhkhan Pathan and another Vs. State of Gujrat, (2004) 13 SCC 608 , has held that out of four persons travelling in the auto-ricksha, only one person, from whose possession the contraband was recovered, could have been held responsible for illicit trafficking of the contraband and none-else for want of evidence, suggesting that the said person was carrying the same with due knowledge and notice of other three persons. As a matter of fact, the proposition before this Court in the present case is nearer to the one as was before the Apex Court in the above referred judgment. The relevant portion of the judgment reads as follows: “7. However, we notice that so far as Accused 1, Appellant 1 herein is concerned, the contraband in question has been seized from his possession and, in our opinion, the prosecution has established the case against the said accused and the courts below have rightly convicted the said appellant. Whereas in regard to Appellant 2, it is the prosecution case itself that he was travelling in the autorickshaw, along with three other persons. The prosecution has not produced any material whatsoever to establish that either this appellant had the knowledge that Appellant 1 was carrying the contraband or was, in any manner, conniving with the said accused in carrying the contraband. In the absence of any such material, to convict the second appellant only on the ground that he was found in the autorickshaw, in our opinion, is not justified. As a matter of fact, the courts below have rightly acquitted the other two accused on similar ground and, in our opinion, the said benefit ought to have gone to Accused 2 also. For the reasons stated, we find the prosecution has failed to establish its case against Appellant 2. As a matter of fact, the courts below have rightly acquitted the other two accused on similar ground and, in our opinion, the said benefit ought to have gone to Accused 2 also. For the reasons stated, we find the prosecution has failed to establish its case against Appellant 2. Therefore, this appeal, so far as he is concerned, succeeds and the same is allowed. The said Appellant 2, if in custody, shall be released forthwith, if not wanted in any other case. However, the appeal of the first appellant is dismissed.” 20. The law laid down by the Apex Court, therefore, makes it crystal clear that in case there is commercial vehicle, each and every occupant thereof, cannot be held guilty in connection with anything being carried out by one of the occupants, without there being any evidence to show that the other passengers had knowledge and notice of carrying of such thing by one of the occupants. In the case in hand, though there is mention in the documentary evidence referred to hereinabove that accused No. 2 and 3 were in the knowledge that accused No.1 was carrying Charas with him, however, no evidence to this effect has come on record. Even during the investigation also, no material, suggesting as to how they were in the knowledge of accused No.1 being in possession of Charas, is collected by the Investigating Officer. The present, therefore, is a case where the prosecution has miserably failed to bring the guilt home to accused No.2 and 3 beyond all reasonable doubt. Rather, there emerge two possible views, i.e. one pointing to their guilt and the other innocence. In view of the well settled legal principles in the criminal administration of justice, the view favourable to the accused should be adopted. Reference in this behalf can be made to the judgment of Apex Court in State of Rajasthan Vs. Islam and others, (2011) 6 SCC 343 , which reads as follows: “15. The golden thread which runs through the administration of justice in criminal cases is that if two views are possible, one pointing to the guilt of the accused and the other to the innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. The golden thread which runs through the administration of justice in criminal cases is that if two views are possible, one pointing to the guilt of the accused and the other to the innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from a conviction of an innocent. 21. Statements of accused No.2 and 3 recorded under Section 313 Cr. P.C. also reveal that no question, to the effect that they had due knowledge and notice of accused No.1 carrying Charas with him, was put to them. Question No.5 put to them rather is that, it is their co-accused Guman Singh, who was having bag on his legs and the Charas in rectangular shape was recovered therefrom. No doubt they have denied the said question to be wrong and their reply is a reflection on their conduct, however, this alone cannot be made basis for recording findings of conviction against them, particularly when the prosecution has failed to produce any evidence, suggesting that the factum of accused No.1 carrying Charas with him was within their knowledge. 22. Therefore, in view of the above discussion, it would not be improper to conclude that the prosecution has failed to prove its case against accused No.2 and 3 beyond all reasonable doubt. 23. If coming to the role of principal accused, i.e. Guman Singh (accused No.1), it is already observed in paras supra that the contraband, i.e. Charas weighing 935 grams, has been recovered from rucksack Ext.P2, he was carrying with him. The testimony of PW-4 HHC Laxman Dass and the Investigating Officer PW-7 HC Nand Lal leads to the only conclusion that he was occupying the front seat of the vehicle in the left side of the driver and had kept rucksack Ext.P2 in his lap. On checking of rucksack, a polythene bag Ext.P3 was taken out of it and Charas was found to be kept therein. It was a lonely place as there is no cross-examination to this part of the statements of PW-4 HHC Laxman Dass and PW-7 HC Nand Lal. On checking of rucksack, a polythene bag Ext.P3 was taken out of it and Charas was found to be kept therein. It was a lonely place as there is no cross-examination to this part of the statements of PW-4 HHC Laxman Dass and PW-7 HC Nand Lal. It is at the stage of recovery of Charas from the polythene bag Ext.P3, the Investigating Officer deputed PW-4 HHC Laxman Dass to search out someone here and there and, if available, bring with him to witness the search and seizure. PW-4 HHC Laxman Dass though tried to search out someone here and there, however, returned to the spot alone and told the I.O. that no one was available. Therefore, no doubt in this case independent witness has not been associated, however, the I.O. has made efforts in this behalf. 24. Mr. Rahi, learned counsel, has tried to satisfy that PW-4 Laxman Dass did not witness the recovery of Charas, as he was already sent in search of some person to be associated as independent witness, however, unsuccessfully for the reason that PW-4 while in the witness box has stated that it is at the stage when the I.O. signalled the vehicle and stopped the same, he was deputed to search out some person, however, it is not so, as his further testimony in the examination-in-chief reveals that the polythene bag Ext.P3 was taken out from rucksack Ext.P2 in his presence. Not only this, Charas Ext.P4 was also found to be kept in polythene bag Ext.P3, when it was opened in his presence. It has come in the statement of the I.O. that it is after finding the Charas having been kept in polythene bag Ext.P3, he deputed PW-4 HHC Laxman Dass to search out and bring some independent person, if available. In the cross-examination, their testimony remained un-shattered, as nothing material lending support to the prosecution case could be elicited therefrom. 25. It has come in the statement of the I.O. that it is after finding the Charas having been kept in polythene bag Ext.P3, he deputed PW-4 HHC Laxman Dass to search out and bring some independent person, if available. In the cross-examination, their testimony remained un-shattered, as nothing material lending support to the prosecution case could be elicited therefrom. 25. The contradictions, such as the date of occurrence, which the I.O. has disclosed as 16.12.2010 instead of 15.12.2010, according to I.O. PW-7 HC Nand Lal he had produced the case property before SI/SHO Narain Singh, but PW-5 Jaspal Singh has not stated so while in the witness box and nothing has come in the investigation about the presence of Constable Rahul Kumar on the spot being one of the member of raiding party, are not material in nature and rather minor and not render the recovery of Charas from accused No.1 improbable. The judgment of a coordinate Bench of this Court in Sohan Lal Vs. State of H.P., 2010 (1) Shim. LC 112, is, therefore, not applicable for the reason that the contradictions noticed in that case were found to be material in nature and having gone to the roots of the prosecution case. 26. True it is that PW-6 Rajinder Kumar has turned hostile to the prosecution case. He, however, being not a witness to the recovery of Charas from accused No.1, being not present on the spot, is not a material witness in this case. Otherwise also, be it stated that as per his statement recorded under Section 161 Cr. P.C., the police party had conducted investigation partly in forest Check Post, Bajaura where this witness was working as Forest Guard. There is, however, no mention in this behalf in the police report under Section 173 Cr. P.C. A suggestion has been given to the I.O. that no proceedings did take place in Forest Check Post, Bajaura. He, however, has denied the same being incorrect. Meaning thereby that the investigation partly was conducted in Forest Check Post, Bajaura. However, so far as the search and seizure is concerned, the same has taken place on the spot itself. The I.O. on account of there being darkness may have prepared some documents at Forest Check Post, Bajaura, situated near to the place of occurrence. Meaning thereby that the investigation partly was conducted in Forest Check Post, Bajaura. However, so far as the search and seizure is concerned, the same has taken place on the spot itself. The I.O. on account of there being darkness may have prepared some documents at Forest Check Post, Bajaura, situated near to the place of occurrence. However, the main investigation and documentation pertaining to search and seizure had already taken place on the spot and for that matter the spot map was also prepared on the spot itself. Therefore, some formal documents, if prepared in the Forest Check Post, Bajaura, is not a circumstance doubting the credibility of the prosecution case. It is well settled that a party may take advantage of the evidence having come on record by way of the testimony of hostile witness, if advantageous to it. A reference in this behalf can be made to the judgment of Apex Court in Balu Sonba Shinde Vs. State of Maharashtra, (2002) 7 SCC 543 , which reads as follows: “14. It is at this juncture the prosecutor declared her a hostile witness and prayed for permission to cross-examine the witness - upon however, the leave being granted, PW5 totally decried the factual aspect as contained in the complaint lodged, though however, the thumb impression was admitted - while it is true declaration of a witness to be hostile does not ipso facto reject the evidence - and it is now well settled that the portion of evidence being advantageous to the parties may be taken advantage of - but the court before whom such a reliance is placed shall have to be extremely cautious and circumspect in such acceptance. Reference in this context may be made to the decision of this Court in State of U.P. v. Ramesh Prasad Misra & Anr., JT1996 (9) SC 566 ; (1996) 10SCC360 wherein this Court stated: "It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted." 27. However, in the case in hand even if it is believed that no investigation has taken place in Forest Check Post, Bajaura, no benefit thereof is available to accused No.1. On the other hand, there is no reason to disbelieve the I.O. of this case, who had denied the suggestion that no investigation had taken place in Forest Check Post, Bajaura. The Investigating Officer has further went on stating in his crossexamination that he could write only one statement under Section 161 Cr. P.C. on the spot and conducted the remaining investigation in Check Post, Bajaura. The possibility of PW-6 Rajinder Kumar having deposed falsely for some extraneous cannot be ruled out. 28. Although a contention has also been raised that the report of Chemical Examiner is not legally admissible, however, unsuccessfully for the reason that perusal of report Ext. PW5/D makes it crystal clear that at the time of analysis of the recovered Charas in the laboratory, the presence of cannabinoids alongwith tetrahydrocannabinol was found therein. The microscopic examination of the Charas recovered from accused No.1 also indicated the presence of cystolithic hairs therein. Not only this, but the report is suggestive of the fact that quantity of cannabinoids to the extent of 41.03% was found available in the recovered stuff and as such the same was found to be the EXTRACT OF CANNABIS AND SAMPLE OF CHARAS. This is a complete report suggesting each and every constituent of Charas and as such learned trial Court has not committed any illegality or irregularity placing reliance on the report. Above all, the parcel containing Charas, when received in the laboratory, was found to be duly sealed with three seals of impression “A” and three of “T”. The seals were found intact. Not only this, the seals were found to be tallied with the specimen of seals sent separately and with the impression thereof on NCB-I Form and the Assistant Chemical Examiner had also retained the same in his safe custody till its analysis and despatch alongwith the report. 29. The seals were found intact. Not only this, the seals were found to be tallied with the specimen of seals sent separately and with the impression thereof on NCB-I Form and the Assistant Chemical Examiner had also retained the same in his safe custody till its analysis and despatch alongwith the report. 29. The link evidence is also compete in this case, as the testimony of PW-4 HHC Laxman Dass reveals that the Rukka handed over to him at 6.25 p.m. by the I.O. was taken to Police Station, Bhunter and he handed over the same to PW-5 SI/SHO Narain Singh, who after recording the FIR Ext.PW2/B at 6.55 p.m., handed over the file to PW-4 for being taken to the I.O. on the spot. PW-4 HHC Laxman Dass delivered the file to the I.O. on the spot at 7.45 p.m. The I.O. returned to the Police Station alongwith the accused persons and the case property at 9.30 p.m. The case property was produced by him at 9.50 p.m. before PW-5 SI/SHO Narain Singh, who resealed the same with his own seal “T”. Rapat Ext.PW3/A substantiates this part of the prosecution case. Samples of seals “A” and “T” Ext.PW4/A and Ext.PW5/A, respectively are also on record. The same were sent alongwith NCB-I Form to Forensic Science Laboratory alongwith the case property. It is PW-4 HHC Laxman Dass, who had deposited the sample parcel in the Forensic Science Laboratory, without allowing the same to be tampered with by anyone. 30. The re-appraisal of the legal as well as factual position, as discussed hereinabove, leads to the only conclusion that the prosecution has miserably failed to prove its case against accused No.2 Suresh Kumar and accused No.3 Surender Kumar beyond all reasonable doubt. Their conviction and sentence under Section 29 read with Section 20 of the Act is neither legally nor factually sustainable. The impugned judgment to this extent deserves to be quashed and set aside and they both deserve to be acquitted, by giving them benefit of doubt. 31. The prosecution, however, has been able to bring the guilt home to accused No.1 Guman singh and as such he has been rightly convicted under Section 20 of the Act. 32. In the matter of quantum of sentence, no doubt the present is a case of recovery of Charas more than smaller quantity and lesser than commercial quantity. 31. The prosecution, however, has been able to bring the guilt home to accused No.1 Guman singh and as such he has been rightly convicted under Section 20 of the Act. 32. In the matter of quantum of sentence, no doubt the present is a case of recovery of Charas more than smaller quantity and lesser than commercial quantity. The offence accused No.1 Guman Singh committed is punishable with imprisonment which may extend upto 10 years and also payment of fine upto one lac. Learned trial Judge has sentenced accused No.1 Guman Singh to undergo rigorous imprisonment for a period of 9 years and also to pay a fine of Rs.90,000/-. 33. It is significant to note that nothing has come on record, suggesting that accused No.1 Guman Singh is dealing in business of Charas. No investigation to this effect has been conducted by the Investigating Officer. Even his personal search also seems to be not conducted. The recovery of money or anything else such as cell phone etc., if available with him, could have thrown light to show that actually he was dealing in business or working for someone else. He was 27 years of age at the time of occurrence. Therefore, these are mitigating circumstances, warranting lenient view to be taken in favour of the said accused in the matter of award of sentence. I, therefore, reduce the sentence from 9 years rigorous imprisonment to 5 years rigorous imprisonment and the fine is reduced from 90,000/- to 50,000/-. He shall be entitled to the benefit of set off under Section 428 Cr. P.C. 34. In view of above, Cr. Appeal No.151/2013, preferred by accused No.3 Surender Kumar and Criminal Appeal No.152/2013 preferred by accused No.2 Suresh Kumar succeed and the same are accordingly allowed. They both are acquitted of the charge framed against each of them. They are in jail, undergoing the sentence imposed against each of them. Hence, they be set at liberty forthwith, if not required in any other case. 35. The sentence imposed upon convict-accused Guman Singh is also reduced from nine years to five years rigorous imprisonment and the fine from 90,000/- to 50,000/-. The impugned judgment so far as it pertains to accused No.1 Guman Singh stands modified accordingly. All the three appeals stand disposed of in the aforesaid terms.