Kullu vs Unknown
2022 Latest Caselaw 8373 HP

                                       1




     IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA




                                                                .
                  ON THE     11th DAY OF OCTOBER, 2022





                                  BEFORE
                      HON'BLE MS. JUSTICE SABINA





                                      &
                HON'BLE MR. JUSTICE SUSHIL KUKREJA
                    CRIMINAL APPEAL No. 561 of 2019.
    Between:-





    PARKASH S/O SH. CHAKKAR
    BHADUR, R/O VILLAGE AND P.O.
    TAKSIRA,    DISTRICT     RUKAM
    ANCHAL, NEPAL AT PRESENT R/O

    VILLAGE BALADHI, JARI, P.O. JARI
    TEHSIL   BHUNTAR,      DISTRICT

    KULLU, H.P., AGED ABOUT 52
    YEARS.

                                                              .... APPELLANT



    (BY  MR.        MANOJ        PATHAK,
    ADVOCATE.)

    AND




    STATE OF HIMACHAL PRADESH





                                                            ....RESPONDENT
    (BY MR. KUNAL THAKUR,
    DEPUTY ADVOCATE GENERAL)





                This appeal coming on for hearing this day, Hon'ble Ms.
    Justice Sabina, delivered the following:

                            JUDGMENT

Prosecution story, in brief, is that on 30th October, 2017

ASI Nand Lal incharge Police post Manikaran alongwith other police

officials was present on Naka Bandi in official vehicle driven by driver

Bhim Sen at Jai Nallah. At about 3.30 p.m., the police party noticed a

person coming from from Katagla link road side. The said person was

.

carrying a pithu bag on his back. When the said person reached the

main road he saw the police party and tried to flee. On suspicion the

said person was apprehended by the police party and was brought to

the place where Naka had been laid. In the mean time, a vehicle

bearing No. HP-01K-4032 came from Kasol side and was signaled to

stop. The driver of the vehicle, namely, Than Singh was joined by the

police party as an independent witness. Thereafter, the person, who

had been apprehended, disclosed his name as Prakash. When the

Pithu bag carried by the appellant was checked it was found it

contained one blue coloured carry bag tied with a knot. When the said

bag was opened, it contained 41 transparent polythene packets. On

opening the said packets black coloured substance in rectangular

shape, balls and sticks were found. The said substance was found to

be 'charas'. On weighment, the contraband carried by the appellant

was found to be 5.454 kilograms. The recovered contraband was put in

the same carry bag alongwith polythene packets and was then put in

the Pithu bag. The Pithu bag was made into a cloth parcel which was

sealed with seal bearing impression "V". Photographs were taken at

the spot. NCB form in triplicate was prepared. Ruqa was sent to the

police station for registration of the case and on the basis of the same

F.I.R NO. 256 was registered on 30th October, 2017 at Police Station

Kullu, District Kullu under Section 20 of the Narcotic Drugs and

.

Psychotropic Substances Act (hereinafter referred to as the Act)

2. On 1st November, 2017 the case property was produced

before the Chief Judicial Magistrate, Kullu for conducting proceedings

under Section 52-A of the Act. Two representative samples of 25

grams each was drawn from the recovered contraband. One sample

was sent to the Forensic Science Laboratory for examination.

3. After the receipt of the report of the Chemical Examiner

and on completion of other formalities, challan was presented against

the appellant.

4. Charge was framed against the appellant under Section 20

of the Act on 5th March, 2018 by the Special Judge, Kullu. Appellant

did not plead guilty to the charge framed against him and claimed trial.

5. During trial, prosecution examined 10 witnesses in order to

prove its case. Appellant when examined under Section 313 of the

Code of Criminal Procedure, prayed as under:-

"I am innocent and have falsely been implicated by the police. On 30.10.2017, I was taking bath in Hot Spring at Manikaran and a Baba who was handicapped, was also there. I had kept my clothes on the stairs when two police officials of P.P. Manikaran came and noticed a bag lying between my clothes, which

belonged to said Baba. The police officials inquired about the bag but its ownership could not be established. The said bag was checked by the police

.

officials and thereafter I was brought to Police Post

Manikaran alongwith the said handicapped Baba and after sometime, the Baba was let off by the police as

he was handicapped and I being of Nepal origin was implicated in the present case."

6. The appellant did not examine any witness in his defence.

7. Trial Court vide judgment/ order dated 24.09.2019,

convicted and sentenced the appellant as under:-

Section 20 of Narcotic : Rigorous imprisonment for fourteen years

Drugs and and to pay a fine of Rs. 1,50,000/- (Rs.

Psychotropic One lac and fifty thousand only). In default Substances Act, 1985 of payment of fine, he shall further undergo

simple imprisonment for one year.

8. Hence, the present appeal by the appellant.

9. Learned counsel for the appellant has submitted that the

sample examined by the Forensic Science Laboratory weighed 24.118

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 alleged recovered contraband from the appellant.

10. Shri Kunal Thakur, learned Deputy 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.

11. As per the prosecution story, 5.454 Kilograms of charas

.

was recovered from the Pithu bag carried by the appellant. As per PW-

10 ASI Nand Lal, the recovered contraband was in rectangular pieces,

and in ball and stick shape. PW-8 constable Ramesh Kumar, deposed

that the recovered contraband was in the shape of Chapati, rectangle

and balls. PW-7 Than Singh did not support the prosecution case

during trial with regard to the recovered contraband from the appellant.

12. A perusal of the order dated 1st November, 2017 passed

by the Chief Judicial Magistrate, Kullu, reveals that on the said date

case property was produced before him. All the seals were found to be

intact. The parcel was weighed and its gross weight was 5.783 Kgs.

On opening the parcel one red and grey coloured Pithu zip bag was

found. On opening the said bag, blue coloured carry bag was

recovered. On checking the said bag, it was found that it contained 41

empty poly packets and the alleged charas was in the shape of balls,

squares, rectangular pieces and chapatti. Poly packets were

separated and the weight of said poly packets was 85 grams. The

charas weighed 5.454 Kgs. Inventory in this regard was prepared.

Two separate representative samples of 25 grams each from the bulk

charas were drawn and were sealed with four seals bearing impression

'CJM'. The remaining/residue charas was weighed and it was found to

be 5.405 Kgs. The said contraband was put into the carry bag

alongwith poly packets and was then put into the Pithu Zip bag and the

.

said bag was sealed with four seals bearing seal impression 'CJM'.

The case property was handed over to MHC Param Chand.

13. A perusal of the report of the FSL Ex. PW-10/E reveals

that on opening the sealed cloth parcel, the cannabis was found in the

form of irregular shaped pieces and on weighment the exhibit weighed

24.118 grams, whereas, the weight of the cloth parcel was 12.660

grams and the total weight of parcel was 36.778 grams.

14. Thus, as per the evidence on record PW-10 Nand Lal

deposed that the recovered contraband was in the shape of

rectangular pieces, balls and sticks, whereas PW-8 constable Ramesh

Chand stated that the recovered contraband was in the shape of

Chapati, rectangle pieces and balls. So far as the report of FSL is

concerned it is mentioned that the sample was in the form of irregular

shaped pieces. So far as the Chief Judicial Magistrate is concerned he

has stated that the contraband was in the shape of balls, squares,

rectangular pieces and chapatti. Thus, there is difference in the

statements of the witnesses with regard to shape/form of the

contraband recovered and the order passed by the Chief Judicial

Magistrate. Be that as it may, a perusal of the order passed by the

Chief Judicial Magistrate dated 1st November, 2017 does not show that

while drawing the samples the recovered contraband was made into a

homogeneous mixture and thereafter representative samples were

.

drawn. Although, the Chief Judicial Magistrate has stated that two

representative samples of 25 grams each were drawn, but whether the

recovered contraband was made into a homogeneous mixture or not, is

not forthcoming from the order dated 1st November, 2017. The

recovered contraband was in the shape of balls, squares, rectangular

pieces and chapaties. Consequently, it was incumbent upon the

prosecution to establish that the representative samples have been

drawn out of the entire recovered contraband after making it into a

homogeneous mixture. There is nothing on record to establish that any

specific procedure was adopted for drawing the representative

samples. In this situation, the prosecution story becomes doubtful.

16. Ex.PW-10/E is the report of the Forensic Science

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

was received and on opening the said parcel, it was found that the

substance was in the form of irregular shaped pieces and the net

weight of the substance was 24.118 grams. After examination, it was

opined that the exhibit was extract of cannabis and sample of 'charas'.

Thus, the contraband which reached the Forensic Science Laboratory

for examination weighed 24.118 grams and was in the form of irregular

shaped pieces.

17. 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 24.118 grams of charas.

18. In Khek 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 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.

.

19. 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 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.

20. 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."

21. 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:

"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."

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

opinion that the sample weighing 24.118 gram 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 5.454 Kgs. of charas and he

can be held to be in possession of 24.118 grams of charas or at the

most 50 grams of charas by including the weight of other sample,

which, as per the Act, would fall within the definition of small quantity.

23. Accordingly, appellant is held guilty of offence under

Section 20 of the Act 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 under

Section 20 of the Act. The impugned judgment of conviction and order

of sentence passed by the learned trial Court is accordingly modified.

24. The appellant was arrested on 30th October, 2017. He

remained in judicial custody till the conclusion of trial and thereafter is

undergoing the sentence. Since the appellant has already undergone

much more sentence than could be inflicted upon him, the appellant is

ordered to be released immediately, if not required in any other case.

The Registry is directed to prepare the release warrant forthwith.

25. In view of the provisions of Section 437 of Code of

Criminal Proc edure, 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.

26. The appeal is accordingly disposed of. Records be sent

back. Pending applications, if any, also stand disposed of.

.

                                                               (Sabina)





                                                                Judge


                                                         (Sushil Kukreja)





      th
    11 October, 2022 ™                                        Judge




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