Lal Chand v State of Himachal Pradesh
Himachal Pradesh High Court
20 June 2013
Cr. Appeal No. 439 of 2009
The Judgment was delivered by : V. K. Sharma, J.
1. The challenge herein in this appeal u/s. 374 (2) of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C’), is against the judgment and order dated 7.11.2009, whereby the appellant herein, who shall hereinafter be referred to as ‘the convict’, was tried by the learned Special Judge, Chamba (HP), for the offence u/s. 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) and was ultimately convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- (Rs. One Lac ) and in default to suffer further imprisonment for a period of one year.
2. Briefly stated facts of the case are that on 9.2.2009, at about 6.50 AM, a police party headed by HC Deepak Kumar, PW-12, of which HC Virender Singh, PW-1, C. Ajay Kumar, PW-2, C. Tilak Raj, PW-6, SPO Bhikham Singh, PW-4 were members, was present at ‘Bunderi Morh’, District Chamba in connection with nakabandi. In the meantime, the convict was found coming from Junmas side carrying a ‘Boru’ (a small gunny bag) on his shoulder, who on seeing the police, at once turned around and tried to flee. On being suspected, he was apprehended by the police. The convict was apprised of his right to be searched either before a Magistrate, Gazetted officer or any other police officer vide memo Ex.PW-1/A. The convict opted to be searched by the police.
The Boru being carried by the convict was searched by the police. The same was found to be containing another Boru and on opening the same, charas in the shape of sticks was found therein. The recovered contraband was weighed by the police and was found to be 9 Kgs. Thereafter, two samples of 25 grams each were separated from the recovered contraband and put in empty cigarette packets, which were sealed with seal ‘T’ at three places each after putting in separate parcels. Whereas the remaining charas was thereafter put in the same gunny bags after sealing it with the same seal at five places. Specimen of seal impression was also taken separately, which is Ex.PW-1/B.
The sample parcels and parcel containing remaining charas were taken into possession vide memo. Ex.PW-1/C and the seal after use was handed over to HC Virender Singh, PW-1. NCB-I Form Ex.PW-11/B was prepared in triplicate and seal impression was also taken on the same. Rukka Ex.PW-12/A was prepared and sent to Police Station, Tissa, for registration of a case through SPO Bhikham Singh, PW-4, on the basis of which FIR Ex.PW-12/A was recorded. One copy of rukka was sent to the Superintendent of Police, Chamba, through constable Tilak Raj, PW-6. Thereafter the convict was arrested.
3. The case property alongwith NCB-I Form and sample seal was produced by PW-12 HC Deepak Kumar before Inspector Brij Mohan Sharma, PW-11, who re-sealed the sample parcels with seal ‘H’ by affixing three seals on each parcel, whereas the parcel containing bulk of the recovered contraband was resealed with the same seal at five places vide memo Ex.PW-5/B. Specimen impression of the seal used for resealing the case property was also prepared, which is Ex.PW-5/A. Seal impression of the seal used for resealing was also affixed on the NCB-I Form by the said SHO, who also filled the relevant columns thereof.
Thereafter, the case property alongwith specimen seal impressions and NCB Forms was deposited with HC Manohar Lal, PW-3, who was officiating as MHC Police Station, Tissa, regarding which he made entry in the Malkhana Register, abstract of which is Ex.PW-3/A. He sent one of the sample parcel for chemical examination to State Forensic Science Laboratory, Himachal Pradesh at Junga, through constable Tilak Raj, PW-6, vide RC No. 168/2009, copy of which is Ex.PW- 7/A.
4. On receipt of FSL report Ex.PW-10/B, it was established that the recovered contraband was “extract of cannabis and sample of CHARAS”.
5. On completion of investigation the convict was sent up to face trial. When charged, he did not plead guilty and claimed to be tried. The prosecution evidence followed. It examined 12 witnesses in all.
6. On close of the prosecution evidence, the convict was examined by the learned trial court u/s. 313 Cr.P.C, wherein, his case was that of denial simplicitor, innocence and false implication. However, he has examined two witnesses, namely DW-1 Balak Raj and DW-2 Kundan Lal in defence. On conclusion of the trial the learned Special Judge proceeded to convict and sentence him, as already noticed.
7. We have heard the learned counsel for the appellant/convict and learned Additional Advocate General for the respondent-State and perused the records.
8. The impugned judgment has been attacked on behalf of the convict mainly on the grounds that (1) no independent witness was associated by the police to the search and seizure leading to the alleged recovery of contraband from him; (2) the evidence of the official police witnesses suffers from inherent contradictions going to the root of the case; the seal used during the proceedings was not produced in the court; (3) though as per prosecution two samples each weighing 25 grams were separated from the recovered contraband , yet FSL report Ex.PW-10/B reveals that one of the samples sent to the laboratory was weighing 27.500 grams and (4) the FSL report is not in consonance with law.
9. Per contra, the judgment under challenge is supported by the learned Additional Advocate General.
10. According to the prosecution, it was a case of chance recovery. The convict was noticed by the police while coming from Junmas side when it had laid naka at Bunderi nala on 9.2.2009. It was 6.50 a.m in the morning. It is in evidence that no independent witness was available on the spot, which is a lonely place, at that time. It is manifest from the site plan of the place of occurrence, Ex.PW-12/B and testimonies of PW-1 HC Virender Singh, PW- 2 C. Ajay Kumar, PW-4 SPO Bhikham Singh, PW-6 C. Tilak Raj and PW-12 HC Deepak Kumar, who were members of the police party, which had apprehended the convict, that the place of occurrence is a lonely place and no house and shop etc. is located there and no independent witness was available. PW-12 HC Deepak Kumar has admitted during cross examination that the police had remained on the spot for about five hours.
During this period some persons had crossed the spot. Though he had tried to associate them in the investigation, but they had declined on the pretext that they did not want to go to the court. This aspect of the matter is not of much consequence, as even in case some persons had passed through that area while the police was carrying out investigation, the fact remains that no such independent witness was available when the convict was apprehended and searched leading to recovery of the contraband from him. Thus, it cannot be said that the police had deliberately omitted to join independent witnesses in the present case.
11. The learned counsel for the convict has taken us through the statements of the witnesses, all of whom are official police witnesses, namely PW-1 HC Virender Singh, PW- 2 C. Ajay Kumar, PW-4 SPO Bhikham Singh, PW-6 C. Tilak Raj and PW-12 HC Deepak Kumar, but has not been able to point out any contradiction worth the name therein, what to say of any glaring contradiction. All the witnesses have stated in one voice about apprehension of the convict in the given circumstances and recovery of the contraband from him.
12. Admittedly, two samples each weighing 25 grams were separated by the police from the recovered contraband for chemical examination and one of them was sent to the Forensic Science Laboratory for analysis. FSL report reveals the weight of the sample as 27.500 grams . It is in evidence that whereas the sample was weighed on the spot by the police with the help of scales and weights being carried in the I.O kit, but the sample was weighed in the laboratory on electronic balance. This may be the cause for variation in the weight of sample and as such is not of much significance.
13. FSL report Ex.PW-10/B is to the following effect:-
“RESULT OF THE EXMAINATION
Various scientific tests such as physical, identification, chemical and chromatographic tests were carried out in the Laboratory with the exhibit under reference. The tests performed above indicated cannabinols including the presence of tetrahydrocannabinol in the sample. The microscopic examination indicated the presence of Cystolythic hair in the sample. Charas is a resinous mass and resin is an active ingredient of Charas, which on testing was found present. And the quantity of resin as found in sample is 35.26% w/w. The result thus obtained is given below.
The entire mass of the exhibit is extract of cannabis and the sample has been confirmed as CHARAS.”
14. A bare perusal of the above report would go to show that the same conforms to the definition of “cannabis (hemp)” contained in S. 2(iii) of the NDPS Act and there is nothing to suggest as to how the same is not in consonance with law.
15. According to PW-12 HC Deepak Kumar the seal used during the proceedings was entrusted to PW-1 HC Virender Singh, who has stated in the opening lines of his cross examination that when seal bearing impression ‘T’ was handed over to him he was directed by the Investigating Officer to keep the same in safe custody, as it was to be produced in the court. However, he has admitted that he had not brought the seal to the court on the day of his examination as a witness despite the said direction.
It has been held by this court in Fredrick George vs. State of H.P., 2002 Cr.L.J 4600 2002 Indlaw HP 20 that mere non production of the seal used in sealing and resealing the samples and the parcel containing bulk of the recovered contraband is not fatal to the case of the prosecution. It being so, the convict cannot take any advantage of non production of the seal in the court during trial.
16. In view of the above, none of the grounds pressed into service on behalf of the convict goes to advance his case. Accordingly, we do not find any reason for any interference with the impugned judgment/order of conviction/sentence. Resultantly, the appeal is dismissed being without any merit.
Appeal dismissed
