Guddu Ram vs State Of Himachal Pradesh
2022 Latest Caselaw 11419 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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Cr. Appeal No. 235 of 2009

Reserved on : 22.12.2022 Pronounced on: 23.12.2022 ____________________________________________________________

Guddu Ram ... Appellant.

Vs.

State of Himachal Pradesh ....Respondent _____________________________________________________________

Coram:

Hon'ble Ms. Justice Sabina, Judge.

Hon'ble Mr. Justice Sushil Kukreja, Judge.

Whether approved for reporting?

For the appellant : Mr. Kulwant Chauhan, Advocate.

For the respondent : Mr. P.K.Bhatti, Addl. Advocate General,

________________________________________________________________________________________________________

Sabina, Judge.

Appellant has filed the appeal challenging the judgment /

order dated 1.8.2008, passed by the Special Judge (II) Addl. Sessions

Judge, Mandi District Mandi, whereby, he has been convicted and

sentenced as under:-

Under Section 20 of : Rigorous imprisonment for ten years and to the Narcotic Drugs pay a fine of Rs. 1,00,000/- (Rs. One lac and Psychotropic only). In default of payment of fine, he

Substances Act, 1985 shall further undergo rigorous imprisonment for one year.

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2. Against the Judgement/order of conviction and sentence

as above mentioned in para No. 1 of the judgement, appellant had filed

an appeal in this Court. Vide order dated 26th June, 2014 appeal filed

by the appellant was allowed by this Court and the appellant was

ordered to be acquitted. However, the State went up in appeal against

the order passed by this Court and the Hon'ble Supreme Court vide

order dated 11th March, 2022 has allowed the appeal and has

remanded the case to this Court for a fresh decision. Hence, the

matter has come up before us.

3. Prosecution story, in brief, is that on 10th February, 2007

SHO/Inspector Rajesh Kumar alongwith H.C Shyam Lal, H.C Ram Lal,

H.C. Balam Ram had proceeded on patrol duty in an official vehicle

towards Khaliar. During mid night at about 00.15 a.m while they were

returning from Khaliar they reached Victoria bridge and found the

appellant present there. Appellant tried to run away from the spot. On

suspicion that he could be a thief, the police party apprehended the

appellant and on inquiry he disclosed his name and address. Appellant

was carrying a black coloured cloth bag in his right hand on which

'HAT's" was written in red colour. When the bag carried by the

appellant was checked it was found that it contained three polythene

bags i.e. two were of blue colour and one was of white colour. On

checking the bag, it was found that it contained charas in the shape of

sticks. On weighment, the contraband weighed 5.200 kilograms.

.

Inspector Rajesh Kumar drew the representative samples of 25 grams

each, out of the recovered contraband and made them into two

separate sealed parcels with seal bearing impression "K". The

remaining contraband was also made into a sealed parcel and was

sealed with seal bearing impression "K". NCB Form, in triplicate, was

prepared. Sample seal was separately prepared. Appellant was

arrested. Ruqa was sent to the Police Station for registration of F.I.R

and on the basis of the same, formal F.I.R 85/07, dated 11/02/2007,

under Section 20 of the Narcotic Drugs and Psychotropic Substances

Act, 1985 (hereinafter referred to as the "Act" in short), was registered

at Police Station Sadar Mandi, District Mandi.

4. After receipt of the report of the Forensic Science

Laboratory Ex.PW-9/E and on completion of other necessary

formalities, challan was presented against the appellant. On 18 th July,

2007 charge was framed against the appellant under Section 20 of the

Act by the trial Court. Appellant did not plead guilty to the charge

framed against him and claimed trial.

5. Prosecution examined 9 witnesses in order to prove its

case during trial. Appellant when examined under Section 313 of the

Code of Criminal Procedure, 1973, prayed that he was innocent and

had been falsely involved in the case. He submitted that on 10 th

February, 2007 he was on his way to the house of his maternal uncle

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and when he reached village Namlay two persons were going ahead of

him who were carrying a bag in their hand. In the meantime, the police

came from the other side and these two persons ran away after leaving

the bag on the road. Thereafter, the police apprehended the appellant

on suspicion and brought him to police station Sadar and a false case

had been fabricated against him. Appellant had examined two

witnesses in his defence.

6. Learned counsel for the appellant has submitted that the

sample examined by the Forensic Science Laboratory weighed 25

grams and there was no evidence on record to prove that the sample,

which was examined in the laboratory, was representative sample

drawn out of the recovered contraband from the appellant. There were

material contradictions in the statements of the prosecution witnesses

and the said fact rendered the prosecution story doubtful. He further

submitted that no independent witness had been joined at the time of

recovery and there was deficiency in filling up the columns of the NCB

form.

7. Shri P.K. Bhatti, learned Additional Advocate General, on

the other hand, has opposed the appeal and has submitted that the

prosecution had been successful in proving its case as the prosecution

witnesses have duly supported the prosecution case.

8. In order to prove the recovery of the contraband from the

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appellant, the prosecution has examined recovery witnesses PW-3

ASI Sham Lal, PW-4 H.C. Balam Ram and PW-9 Inspector Rajesh

Kumar. The said witnesses have deposed as per the prosecution

story. Witnesses have categorically deposed that when the bag carried

by the appellant was checked it was found that it contained charas.

PW-3 and PW-4 have deposed to the effect that the contraband was in

the shape of sticks. Out of the recovered contraband two samples

weighing 25 grams each were separated and were made into sealed

parcel. One sample parcel was sent to the Forensic Science

Laboratory for examination. As per the report of the Forensic Science

Laboratory the sample weighed 27.875 grams and as per the result of

the examination, the sample was of charas. As per the report of the

laboratory the sample parcel which had reached the laboratory was

bearing three seals of impression "K" and the seals were found intact

and tallied with the seal impression sent by the SHO on NCB form.

9. We have carefully gone through the testimonies of the

recovery witnesses and their statements inspire confidence. The said

witnesses were cross-examined at length but nothing could be elicited

from their cross-examination which would render their statements

doubtful.

10. DW-1 Tej Ram has deposed that he was running a shop

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at village Navlya. On 10th February, 2007 two persons had crossed the

road in front of his shop. It was about 6 or 6.30 p.m. The said persons

had gone about 100 yards ahead of his shop and one van was parked

there. Four-five persons were present in the Maruti Van. The said 4-5

persons tried to catch the said two persons and they had thrown a bag

on the road. The appellant, who was walking behind the said persons

at a distance of 15-20 miters, was apprehended by the persons in civil

dress. In his cross-examination he deposed that he had closed his

shop at about 8 or 8.30 p.m. He denied the factum of apprehension of

the appellant at Victoria bridge during night time. He deposed that the

appellant was personally known to him since long.

11. DW-2 Bhag Chand has corroborated the statement of

DW-1 and has stated that he was sitting in the shop of DW-1 when the

incident occurred. In his cross-examination he deposed that he did not

know the other persons personally. He stated that appellant was

known to him since long.

12. Statements of DW-1 and DW-2 fail to inspire confidence

and rebut the testimonies of the recovery witnesses. Apparently, DW-1

and DW-2 have deposed in favour of the appellant as they were known

to him since long. Moreover, the said witnesses had never moved any

complaint before the higher authorities with regard to false involvement

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of the appellant in this case. Hence, we are of the opinion that the

testimonies of the recovery witnesses are liable to be believed with

regard to the recovery of the contraband from the appellant.

13. Although in the present case, no independent witness was

joined at the time of recovery but recovery in the present case was

effected in the month of February and during mid night. Therefore, it is

probable that no independent witness was available at the spot at the

time of recovery. Moreover, it is a settled proposition of law that in a

case where independent witness has not been joined then the said fact

is not fatal to the prosecution case but the statements of the official

witnesses are to be scrutinized carefully. In the present case, official

witnesses were acting in discharge of their official duties and has no

reason to falsely implicate the appellant in this case. Moreover, there

is nothing on record to discredit the testimonies of the recovery

witnesses.

14. So far as NCB form Ex.PW-9/A is concerned, perusal of the

reveals that the same has been duly filled in and signed by PW-9. The

same has been duly proved by PW-9. There is no cutting or over

writing in the NCB form. Hence, the argument raised by the appellant

that no reliance could be placed on the NCB form or that it had not

been filed in at the spot, has no basis.

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15. The next question that arises for consideration is with

regard to the fact as to whether the prosecution has been successful in

establishing that the recovered contraband from the appellant weighed

5.200 kilograms, as deposed by the official witnesses.

16. From the testimonies of PW-3 and PW-9 it is evident that

the seized contraband was in the shape of sticks. PW-9 had drawn

two samples weighing 25 grams each from the recovered contraband.

However, the recovery witnesses have not deposed anything about

the mode and manner in which the representative samples were drawn

from the recovered contraband. Since, in the present case the

recovered contraband was in the shape of sticks it was incumbent

upon the prosecution to establish that the representative samples had

been drawn by making the recovered contraband into a homogeneous

mixture. The recovered contraband was in the shape of sticks and in

such a situation it was incumbent upon the prosecution to establish that

the representative samples had been drawn out of the entire recovered

contraband. There is nothing on record to establish that any specific

procedure was adopted for drawing a representative sample.

17. Ex.PW-9/G is the report of the Forensic Science

Laboratory. A perusal of the same reveals that one sealed cloth parcel

was received and the net weight of the substance was 27.875 grams.

.

After examination, it was opined that the exhibit was of 'charas'.

18. Since in the present case there is no evidence on record to

establish that representative samples, out of the entire recovered

contraband, had been drawn, hence, it can be said to be a case of

recovery of only 25 grams of 'charas'.

19. In Khekh Ram Vs NCB, Criminal Appeal No. 450 of 2016

decided on 29.12.2017, Division Bench of this High court held as

under:

"78. Additionally and more importantly, we notice that the entire bulk of the alleged contraband was not sent for analysis and

only four samples of 25 grams each were, in fact, sent for analysis. Thus, taking the prosecution case at best what is proved on record is the recovery of only 100 grams of charas

from the possession of the accused. Admittedly, the alleged contraband was in different shapes and sizes in the form of

biscuits and flat pieces.

79. Therefore, in this background, the question arise as to whether the entire bulk of 19.780 Kgs as was recovered, in absence of there being chemical examination of whole quantity, can be held to be charas.

80. This question need not detain us any longer in view of the authoritative pronouncement by the Hon'ble Supreme Court in Gaunter Edwin Kircher vs. State of Goa (1993) 3 SCC 145,

wherein the Court was dealing with the alleged recovery of two cylindrical pieces of Charas weighing 7 grams and 5 grams each. However, only one piece weighing 5 grams was sent for

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chemical analysis and was established to be that of Charas.

The learned trial Court convicted the accused by taking the total quantity to be 12 grams and such finding was affirmed by Hon'ble Supreme Court, however, reversing such findings."

20. In State Vs Naresh Kumar, Criminal Appeal No. 782 of

2008 decided on 28.6.2019, Division Bench of this High court held as

under:

"23. As quantum of recovery is concerned, as per prosecution case, 1 Kg. 500 grams charas was recovered from the

respondent and after taking out two samples of 25 grams each,

the remaining contraband was sealed in parcel and samples were also sealed in two different parcels. Bulk of charas claimed to be recovered from the respondent is Ext.P2 but

during investigation and thereafter also, only one sample of 25 grams of charas was sent to CFSL Chandigarh for chemical analysis and as per chemical analyst report Ext. PX the sample

was found to be of charas.

24. As per ratio laid down by the Apex Court in Gaunter Edwin Kircher vs. State of Goa, reported in (1993)3 SCC 145

the amount of contraband, recovered from the respondent, cannot be held more than that which was sent to the Chemical Analyst and was affirmed by the Forensic Science Laboratory as a contraband. The failure to send the entire mass for chemical analysis would result to draw inference that said contraband has not been analyzed and identified by CFSL as the charas.

25. Learned Single Judge of this Court in Dhan Bahadur vs. State of H.P. reported in 2009(2) Shim.L.C. 203, after relying upon the judgment in Gaunter Edwin Kircher's case supra, has

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held that only analyzed quantity of contraband can be said to

have been recovered from the respondent. Applying the ratio of law laid down by the Apex Court and followed by learned Single

Judge of this Court, we find that in the present case quantity of recovered contraband is to be taken as 25 grams only and therefore, respondent can be convicted for recovery of 25 grams charas from his conscious possession for which

punishment has been provided under Section 20(b)(ii)(A) for a term which may extend the six months or with fine which may extend to Rs.10,000/- or/with both."

21. In State of HP Vs Sultan Singh and Others Criminal

Appeal No. 324 of 2008, decided on 22.4.2016, Division Bench of this

High court held as under:

"16. Charas was recovered from three different packets. PW- 8 Constable Bhupinder Singh has categorically admitted in his

cross-examination that IO did not mix up contents of the packets Ext. P2 to P4. PW-10 ASI Ghanshayam himself has

admitted in his cross-examination that he did not mix up the contents of three polythene packets. IO should not have

continued with the preparing of documents till the police official, who was sent to get independent witnesses, came back. IO should have made entire contraband homogenous for the purpose of chemical examination."

22. In State of Himachal Pradesh Vs Sohan Singh, Criminal

Appeal No. 259 of 2009 decided, on 23.12.2015, Division Bench of

this High court held as under:

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"16. We have not understood why IO has sent PW-2 Hitender Kumar to an area which was not thickly populated instead of

sending towards an area which was thickly populated to call independent witnesses. Case of the prosecution is that accused was given option to be searched before a gazetted officer or a Magistrate. He opted to be searched by the police. Consent

memo is Ext. PW-1/A. According to the prosecution case, PW-2 Hitender Kumar was present on the spot and he was the person who has taken Rukka to Police Station. However, in his

cross-examination he has denied that Ext. PW-1/A was

prepared in his presence. He has also admitted that Ext. PW1/E was also not prepared in his presence. Thus, the presence of PW-2 Hitender Kumar at the spot is doubtful. Rukka was prepared at 11.30 pm by IO PW-12 Kishan Chand

but was sent at 12.30 pm. According to HHC Padam Singh, samples were not taken homogenously. Few sticks were taken. According to PW12 Kishan Chand from all the four packets,

samples were drawn. There is variance in the statements of

PW-1 Padam Singh, PW-2 Hitender Kumar and PW-12 Kishan Chand whether sample was prepared homogenously or not entire contraband was required to be mixed homogenously for

preparing samples to be sent for chemical examination to SFL."

23. Thus, from the evidence available on record, we are of the

opinion that the sample weighing 25 grams of charas examined by the

Forensic Science Laboratory, was not the representative sample of the

entire bulk and therefore, appellant cannot be held to have been found

in illegal conscious possession of 5.200 kilograms of charas and he

can be held to be in possession of 25 grams of charas, which, as per

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the Act, would fall within the definition of small quantity.

24. Accordingly, appellant is held guilty of offence under

Section 20 of the Narcotic Drugs and Psychotropic Substances Act,

1985, for having been found in conscious possession of only small

quantity of charas and is sentenced to undergo rigorous imprisonment

for one year. The sentence qua fine is set-aside. The impugned

judgment of conviction and order of sentence passed by the learned

trial Court is accordingly modified.

25. The appellant was arrested on 11th February, 2007. He

remained in judicial custody till the end of June, 2014. The appellant

has already undergone much more sentence than could be inflicted

upon him and is already on bail.

26. However, in view of the provisions of Section 437 of Code

of Criminal Procedure, 1973, appellant is directed to furnish his

personal bond in the sum of Rs. 25,000/- with one surety in the like

amount before the learned Registrar (Judicial) of this Court, which shall

be effective for a period of six months with stipulation that in the event

of Special Leave Petition being filed against this judgment, or on grant

of leave, the appellant, on receipt of notice thereof, shall appear before

the Supreme Court.

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27. The appeal is accordingly disposed of.

                                                                (Sabina)
                                                                 Judge





                                                           (Sushil Kukreja)
    December 23, 2022(TM)
                    r                                          Judge