Back
2010 Supreme(HP) 272
HIMACHAL PRADESH HIGH COURT
HON’BLE MR. JUSTICE SURJIT SINGH & HON’BLE MR. JUSTICE SURINDER SINGH, JJ.
RENU GOGAR
Appellant
VERSUS
STATE OF H.P.
Respondent
Cr. Appeal No. 279 of 2007
Decided on 08-01-2010.
For the Appellant:Mr. Sunil Chaudhary, Advocate.
For the Respondent:Mr. Ramesh Thakur Assistant Advocate General.
The main legal point established in the judgment is the requirement for conclusive evidence to prove the possession of contraband under the Narcotic Drugs and Psychotropic Substances Act, 1985, and the inadequacy of forensic reports in establishing the nature of the recovered substance.
Headnote:
Narcotic Drugs - Conviction under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20 - Summary of Acts and Sections: Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - The judgment discusses the interpretation and application of Section 20 of the Act, the definition of 'charas' under Section 2(iii)(a) of the Act, and the legal provisions related to possession of cannabis (hemp) as an offence under the Act.
Fact of the Case:
The appellant, a Nepali National, was convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for allegedly possessing 8 kg of charas. The prosecution's case was based on the recovery of the contraband from the appellant's bag by the police.
Finding of the Court:
The court found that there were discrepancies in the evidence presented by the prosecution, including contradictions in the sealing of the case property and the delay in sending the contraband for analysis. The court also highlighted the inadequacy of the forensic report in proving that the recovered substance was 'charas' as defined in the Act.
Issues: The issues revolved around the reliability of the prosecution's evidence, the validity of the forensic report, and the interpretation of the legal provisions related to possession of contraband under the Act.
Ratio Decidendi: The court's decision was based on the lack of conclusive evidence connecting the recovered substance to the offense of possessing 'charas' as defined in the Act. The discrepancies in the prosecution's case and the inadequacy of the forensic report led to the conclusion that the appellant's conviction was unsustainable.
Final Decision: The court set aside the conviction and sentence of the appellant, ordering her immediate release if not required in any other case.
Surinder Singh, J.- Appellant, a Nepali National, has assailed her conviction under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ‘the Act’, passed by the learned trial Court in Sessions Trial No. 01 of 2007, whereby she was sentenced to undergo imprisonment for a period of ten years and to pay a fine of rupees one lac and in default of payment of fine, further to undergo rigorous imprisonment for a period of one year for allegedly possessing 8 kg. of charas.
2. In short, prosecution case can be stated thus. On 13.6.2006, PW3 ASI Lal Man, along with PW2Constable Chaman Lal and another Chaman Lal of Home Guards, was on patrolling duty and detection of crime at Garahan-nullah forest, falling under the jurisdiction of Police Post Manikarn, District Kullu, H.P. Around 5.15 a.m., appellant was noticed coming from the opposite direction through a bridle-path amidst the forest carrying a bag on her back. On seeing the police party, she tried to run away, which raised suspicion. Therefore, she was apprehended. Police asked her identity. Since the Police was apprehensive that she might be carrying some contraband thus, PW2 Constable Chaman Lal was sent to find out independent witness. After sometime, he returned and told ASI Lal Man that he could not find any witness. Thus, PW3 ASI Lal Man associated PW2 HHC Hem Raj and PW2 Chaman Lal as the witnesses in the case. PW3 ASI Lal Man rendered himself to search to the said witnesses in the presence of the appellant but no incriminating article was found in his possession. To this effect, memo Ext. PA was prepared.
3. Although it was not required yet the appellant was given an option to get her bag searched in the presence of the Magistrate or a Gazetted Officer. She agreed that her bag be searched by the Police party. To this effect, consent memo Ext. PB was also prepared.
4. Thereafter, PW3 ASI Lal Man conducted the search of the bag of the appellant and recovered 8 kg. charas, contained in a polythene envelope, wrapped in two green coloured pieces of cloth.
5. PW3 ASI Lal Man separated two samples of 25 grams each from the recovered stuff, each were separately sealed with seal that produced the impression of letter ‘H’ of English alphabet and the remaining bulk was also sealed along with polythene wrapper and cloth in the said bag with the same seal.
6. NCB forms in triplicate were filled-in and its seal impression was taken on a piece of cloth Ext. PF. The case property was taken into possession, vide memo Ext.PC. The seal after its use was handed over to PW1 HHC Hem Raj.
7. Appellant was arrested and grounds of arrest Ext. PD were informed to her.
8. Ruka Ext.PG was sent for the registration of the case to Police Station Kullu, on the basis of which FIR Ext. PM was formally registered. To this effect, endorsement was made by PW6 SI/SHO Mohinder Singh.
9. Appellant was brought to Police Post Jari, where her personal search was conducted by a lady constable Chandra Devi but nothing incriminating was found on her personal search.
10. ASI Lal Man produced the appellant along with the case property before PW6 SI SHO Mohinder Singh. He re-sealed all the three parcels with his seal that produced the impression of letter ‘T’ of English alphabet. The samples of seal impression ‘T’ were also taken separately. Memo Ext. PO to this effect was prepared. He filled- in column Nos. 9 to 11 of the NCB forms, which were stated to be prepared on the spot in triplicate.
11. Thereafter SI/SHO Mohinder Singh handed over the case property along with NCB forms in triplicate and other connected documents to PW10 Addl. MHC Jia Lal at 3 p.m. on the same day to deposit in the Malkhana.
12. One of the sample parcels was sent through PW11 constable Pawan Kumar on 8.6.2006 along with sample of seal, NCB forms in triplicate for its analysis to C.F.S.L. Hyderabad, vide R.C No. 172/2006 but the said Laboratory did not accept the said sample on the ground that they did not a
