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2018 DIGILAW 2142 (HP)

Karan v. State Of H P

2018-12-03

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - The appellant/accused has filed the instant appeal against the judgment dated 28.12.2007 passed by the learned Special Judge, Fast Track Court, Kullu, in Sessions Trial No. 5/2007, whereby he has been convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.20,000/ for commission of an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act,( in short, "Act") and in default of payment of fine, to further undergo simple imprisonment for a period of six months. 2. The prosecution story, in brief, is that on 6.11.2006, HC Yashpal along with HHC Lal Singh and HHC Chander Prakash was present at Samod Nallah in connection with patrol duty and detection of crime. At about 7.30 A.M., one person came from Jai Nallah side and on seeing the police party, he turned back and tried to flee away from the spot. He was overpowered by the police. He tried to throw away polythene envelope, which he had kept underneath armpit inside his sweater. The said polythene envelope was caught by HC Yashpal. On enquiry, said person disclosed his name to be Karan, son of Dhan Bahadur, resident of Village Man Naggar, Police Station Ganeshpur, District Kapil Bastu, Nepal. He also stated that he had been living in the orchard of Man Singh of Village Katagla. The polythene envelope was checked by HC Yashpal and it was found containing Charas in the shape of ''Chapatis'' and balls. The spot was a jungle and secluded place. No independent witness was found present there. HHC Lal Singh and HHC Chander Prakash were associated as witnesses by HC Yashpal. The recovered Charas was weighed and found to be 640 grams. Two samples of Charas 25 grams each were separated from the recovered Charas. Remainder of Charas was put back in the same polythene envelope and said polythene envelope containing Charas was sealed in a separate parcel. Four seal impressions of ''H'' were affixed on each parcel. Samples of seal impressions ''H'' were obtained separately. NCB form in triplicate was filledin. Seal after use was handed over to HHC Chander Prakash. A seizure memo was prepared on the spot which was signed by the appellant and witnesses. Copy of seizure memo was supplied to the appellant free of costs and arrest memo was prepared on the spot. 3. NCB form in triplicate was filledin. Seal after use was handed over to HHC Chander Prakash. A seizure memo was prepared on the spot which was signed by the appellant and witnesses. Copy of seizure memo was supplied to the appellant free of costs and arrest memo was prepared on the spot. 3. A rukka was prepared on the spot by HC Yashpal , which was sent to Police Station, Kullu though HHC Lal Singh on the basis of which an FIR was registered against the appellant. Site plan of occurrence was also prepared. Thereafter, HC Yashpal proceeded to Police Station, Kullu, alongwith appellant and case property. HHC Lal Singh met HC Yashpal at Police Station, Kullu and case file was handed over to him. He filledin relevant columns pertaining to FIR number on various memos. The case property was handed over to SHO Joginder Singh by HC Yashpal. SHO Joginder Singh resealed the sealed parcels. Case property was deposited at police Malkhana at Kullu with MHC Manoj Kumari. On 7.11.2006, MHC Manoj Kumari handed over the sealed sample parcel and other connected documents to Constable Teja Singh to deposit the same at CFSL, Chandigarh. The sample parcel was deposited at CFSL, Chandigarh. As per the report of CFSL, Chandigarh, contents of the sample were found to be that of Charas. A special report was also prepared by HC Yashpal, which was handed over to Deputy Superintendent of Police, Headquarters at Kullu. 4. After completion of the investigation, final report, under Section 173 Cr.P.C. was prepared and presented in the Court with a prayer to take cognizance of the case to try the appellant for commission of the offence. 5. Consequently, the appellant was charged under Section 20 of the Act. 6. The prosecution examined as many as 9 witnesses and upon closer of its evidence, statement of the appellant under Section 313 Cr.P.C. was recorded, wherein he pleaded not guilty and claimed trial. 7. The learned trial court, after evaluating the evidence so adduced before it, vide judgment dated 28.12.2007, convicted and sentenced the appellant as aforesaid, constraining him to file the instant appeal. 8. I have heard the learned counsel for the parties and have also gone through the records of the case carefully. 9. 7. The learned trial court, after evaluating the evidence so adduced before it, vide judgment dated 28.12.2007, convicted and sentenced the appellant as aforesaid, constraining him to file the instant appeal. 8. I have heard the learned counsel for the parties and have also gone through the records of the case carefully. 9. It is not in dispute that out of total contraband, that is alleged to have been recovered from the possession of the appellant, was 640 grams of Charas, however only 25 grams thereof was sent for chemical analysis and, therefore, at best what is proved on record is the recovery of 25 grams of Charas from the custody of the appellant. 10. There is nothing on record to actually prove that the remaining contents of the recovered material was in fact Charas. Moreover, recovered material that was sent for sampling cannot said to be representative and corrective. 11. In the given circumstances, the appellant could have at best been convicted for possession of 25 grams of Charas, where the percentage of resin was found to be 35.62% and looking to the quantity of what has been proved on record, the appellant at best could be convicted till the rising of the court being in possession of small quantity of Charas. However, at the same time, it cannot be ignored that the appellant was initially arrested in the year 2007 and thereafter released on bail and having faced agony of protracted trial and pendency of this appeal for more than one decade, therefore, in the given facts and circumstances, ends of justice would be met in case the sentence as passed by the learned Special Judge is altered and modified to the one already undergone by the appellant. Ordered accordingly. 12. In view of the aforesaid discussions, the appeal is partly allowed and consequently, opendated warrants of arrest issued by this Court are ordered to be recalled. Pending application(s), if any, also stands disposed of.