Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 2173 (HP)

Gumat Ram v. State Of H P

2018-12-07

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - The appellant/accused has filed the instant appeal against the judgment dated 8.8.2008 passed by the learned Special JudgeII, Mandi, H.P., camp at Karsog, in Sessions Trial No. 16/2004, whereby he has been convicted and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.10,000/- 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 rigorous imprisonment for a period of two months. 2. The prosecution story, in brief, is that SI/SHO Mangat Ram, Police Station, Karsog, on 7.4.2004 received telephonic information that one person, coming from ShankarDehra side towards Sanarli Chowk, was carrying Charas with him. The SHO recorded the information in daily diary and he sent one copy of the same under Section 42(2) of the Act to the SDPO/Dy.S.P., Sundernagar. Thereafter, SI/SHO, Mangat Ram along with ASI, Ramasra, HC Parma Ram, Constable Tej Ram and Constable Ami Chand went to Sanarli Chowk, where Surat Ram and Chuni Lal were also associated and the police party laid ''Nakka'' at Sanarli Chowk. At 11.00 A.M., the appellant was seen coming on foot from Kelodhar side and when he saw the police men, though he tried to run away, but he was overpowered. On interrogation by SI Mangat Ram, the appellant disclosed his name and address. The Sub Inspector asked the appellant about his option as to whether he wanted his personal search to be conducted in presence of Magistrate or Gazetted Officer or by the Police party and the appellant, in turn, opted to be searched by the police party. The Sub Inspector after giving his personal search conducted personal search of the appellant and recovered two polythene bags containing Charas, which were tied by the appellant with waistband of his underwear. The recovered Charas was weighed and the same was found to be 400 grams. The Sub Inspector dealt with the recovered contraband in accordance with provisions of the Act and drew two samples of 25 grams each out of the recovered Charas. The two samples were packed in separate parcels and the remaining Charas was packed in separate parcel and the parcels were sealed with seal having impression ''X''. The Sub Inspector filled in NCB form and took specimen seal impression. The two samples were packed in separate parcels and the remaining Charas was packed in separate parcel and the parcels were sealed with seal having impression ''X''. The Sub Inspector filled in NCB form and took specimen seal impression. The case property was taken in possession and accordingly, search and seizure form was prepared. Thereafter, the appellant was arrested. 3. The Sub Inspector sent Rukka to Police Station, Karsog through Constable Ami Chand in order to register an FIR. Investigation on the spot was completed by the Sub Inspector and thereafter he took the case property and the appellant to Police Station, Karsog. Later on, one part of the sample was sent to the Chemical Examiner, CTL Kandaghat, and the Chemical Examiner sent his report to the effect that the sample was containing 30.09% resin and as such the same was of Charas. 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 11 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 8.8.2008, 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 the total contraband, that is alleged to have been recovered from the possession of the appellant, was 400 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 of the sample recovered. 11. 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 of the sample recovered. 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 30.09% 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 2004 and thereafter released on bail and having faced agony of protracted trial and pendency of this appeal for 14 years, 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 in the aforesaid terms. Pending application(s), if any, also stands disposed of.