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2011 Supreme(HP) 372
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Surinder Singh, J.
Krishan Singh ….Appellant.
Versus
State of Himachal Pradesh ..Respondent.
Cr. Appeal No. 2 of 2010
Decided on : 21st February, 2011.
For the appellant :Mr. M.S. Guleria, Advocate.
For the respondent:Mr. A.K.Bansal, Addl. Advocate General.
Strict compliance with the mandatory provisions of Section 50 of the Act, the requirement of a representative sample, and the legal presumption under Section 35 and 54 are crucial in drug-related cases.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Conviction under Section 20 - 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50, Section 35, Section 54 - The court discussed the compliance of Section 50 of the Act, the concept of substantial compliance, and the requirement of a representative sample. The court emphasized the mandatory nature of Section 50 and the need for strict compliance. It also highlighted the legal presumption under Section 35 and 54 and the failure to rebut it.
Fact of the Case:
The appellant was convicted for possessing 859 grams of Charas under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution's case was based on the recovery of the contraband from the appellant, and the appellant challenged the conviction citing breach of Section 50 of the Act and the alleged non-representative sample.
Finding of the Court:
The court found that the provision of Section 50 was fully complied with and emphasized the mandatory nature of the provision. It also concluded that the sample taken was representative and highlighted the legal presumption under Section 35 and 54, which the appellant failed to rebut. The court dismissed the appeal, upholding the conviction and sentence.
Issues: Compliance of Section 50 of the Act, requirement of a representative sample, and legal presumption under Section 35 and 54.
Ratio Decidendi: The court emphasized the mandatory nature of Section 50 and the need for strict compliance. It also highlighted the legal presumption under Section 35 and 54 and the failure to rebut it.
Final Decision: The appeal was dismissed, and the conviction and sentence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, were upheld.
SURINDER SINGH, J.
Appellant was convicted for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’, by the learned trial Court in Sessions trial No.28 of 2009, on th December, 2009, for allegedly keeping in his possession 859 grams of Charas in the total recovered stuff of 2 Kgs and 500 grams, thus, he was sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.50,000/- and in default of payment of fine, the appellant was also ordered to further undergo imprisonment for one year. The benefit of Section 428 Cr.P.C. was also accorded. Appellant has challenged his conviction and sentence in the present appeal.
2. In short, the prosecution story, as emerges from the evidence on record, can be stated thus. On 17.3.2009 PW9 Inspector Brij Mohan Sharma was heading a police party near ‘Zero Point’ at Jassurgarh (Chamba). At about 11.35 a.m., they spotted the appellant coming on foot from the upper side of the road through a bridle path, who on seeing the police became nervous. On suspicion, the appellant was apprehended by PW1 HC Virender Singh and Constable Prakash Chand. PW9 Inspector Brij Mohan Sharma asked his identity to which he disclosed. The said person was also identified by him during the trial of the case. Thereafter Inspector aforesaid expressed his suspicion that he might be having in possession some contraband and gave him an option that it was his legal right to be searched before the Magistrate, or a Gazetted Officer. This option was also reduced into writing vide consent memo Ex.PW1/A, which was prepared on the spot in the presence of PW1 HC Virender Singh and PW2 Constable Ajay Kumar. The appellant while exercising his option consented to be searched by the police party present there.
3. PW9 aforesaid conducted his personal search and discovered some cloth fastened on his back. It was untied. It contained three small bags (thallies) containing Charas. The contents of all the three bags were mixed up together and weighed. It turned out to be 2 Kgs. 500 grams. Thereafter two samples of 25 grams each were separated, packed and sealed separately with the seal impression “M”. Remaining bulk was packed in the same bags and then sealed in one parcel with the same seal. The specimen of seal was also taken on a separate piece of cloth Ex.PW1/D.
4. The case property was taken into possession vide memo Ex.PW1/B and a copy of this memo was supplied to the appellant free of cost. The relevant columns of NCB forms in triplicate were filled in by PW9 Inspector Brij Mohan Sharma on the spot, one of such form is Ex.PW9/A. The facsimile of the seal used was also affixed thereon.
5. A Ruqa Ex.PW9/B was sent for the registration of the case to Police Station Tissa, through Constable Tilak Raj, which culminated into FIR Ex.PW8/A.
6. The appellant was arrested and grounds of arrest were informed to him.
7. Site plan Ex.PW9/C of the alleged place of recovery was prepared on the spot and the statements of the witnesses were also recorded. The case property alongwith specimen seal impression, NCB forms and articles of ‘Jama-Talashi’ were deposited with PW6 MHC Madan Lal, which were duly entered by him in the Malkhana register, copy whereof is Ex.PW6/A.
8. Special Report Ex.PW4/B was sent to the Superintendent of Police, Chamba within the statutory period.
9. On 19.3.2009, PW6 MHC Madan Lal sent one of the sample parcels to Forensic Science Laboratory, Junga vide RC No.187/2009 (Ex.PW6/B) alongwith NCB forms and other documents contained in police docket through PW7 Constable Raj Singh, who after depositing the same in the FSL, took up the receipt on the said R.C. and handed it over to MHC Madan Lal on his return.
10. On examination of the sample parcel in Forensic Science Laboratory, it tested positive for Charas. Report is Ex.PW9/E. The sample contained 34.36% weight-in-weight quantity of resin.
11. After completing the investig
