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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Hon'ble Judges: Surinder Singh, J.
Andre Moll – Appellants
Vs.
State of Himachal Pradesh – Respondent
Cr. Appeal No. 74 of 2010
Decided On: 14.09.2010
Narcotic Drugs - Possession - Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - 20(b)(ii)(B) - Summary: The court discussed the prosecution's case of possession of 'Charas' by the appellant, the evidence presented, and the legal provisions of the Act. The court also considered the defense raised by the appellant and the arguments put forth by both parties. The court ultimately rejected the defense and upheld the conviction based on the evidence and compliance with legal provisions.
Fact of the Case:
The appellant, a Swiss National, was convicted for possession of 'Charas' under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution's case was based on the recovery of 'Charas' from the appellant's bag during a police search.
Finding of the Court:
The court found the prosecution's evidence, including the testimony of police witnesses, to be credible and sufficient to establish the appellant's possession of 'Charas'. The court rejected the defense's arguments regarding false implication and non-compliance with legal provisions.
Issues: The issues involved the credibility of the prosecution's evidence, compliance with legal provisions, and the defense's claim of false implication.
Ratio Decidendi: The court relied on the credible testimony of police witnesses, the absence of complaint by the appellant during remand, and the lack of merit in the defense's arguments to uphold the conviction.
Final Decision: The appeal was dismissed, and the appellant's conviction for possession of 'Charas' under Section 20(b)(ii)(B) of the Act was upheld.
Surinder Singh, J.
1. Appellant is a Swiss National. He was charge-sheeted, tried for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short 'the Act', but convicted for the offence punishable under Section 20(b)(ii)(B) of the Act, for allegedly keeping in possession the non-commercial quantity of "Charas", as such sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 50,000/- with default clause, by the learned trial Court, which has been assailed by him in the instant appeal.
2. In short, the prosecution story, as emerges from the evidence on record, can be stated thus. On 18.1.2009 at about 7.00 am, PW-9 Sub-Inspector Pawan Kumar alongwith police party consisting of Head Constable Mohar Singh (PW-1), HHC Chaman Lal, HHC Uttam Singh and HHG Garish Kumar, was present at Kasol near the English-Wine-shop. The appellant went inside the liquor-vend. He was carrying a blue-black coloured bag on his back. The said Sub-Inspector asked about his identity. His identity was checked with reference to the passport carried by him finding it to be correct, he was further asked as to what he was carrying in his bag. He gave very cursory reply that nothing objectionable was therein. On this the Sub-Inspector (PW-9) aforesaid got suspicious and asked him to show the contents of the bag. Appellant started dilly-dallying. The Police Officer further enquired from him about the place where he was residing. On this, he replied that he was staying in the house of 'Alans family' at Kasol. The Police Officer associated PW-2 Piar Chand, the salesman of the liquor-vend and sought the consent of the appellant for the search of the bag in his presence. On checking the bag, in the presence of Piar Chand aforesaid and other police officials, he recovered one polythene-bag containing "Charas" in the shape of small sticks and balls, which were found wrapped in the polythene paper. On removing the polythene paper he checked its contents carefully and became sure about it that it was "Charas". On weighing it came to be 1.200 Kgs. He drew two samples of 25 grams each separately and wrapped in polythene paper and the same were sealed in a white piece of cloth with seal impression "A". Three impressions of said seal were put on each parcel. The remaining "Charas" was put in the same bag from which it was recovered, which was also sealed with the same seal at three places. The seal impression was also taken on the piece of cloth Ext.PW1/B.
3. NCB forms one of which is Ext.PW4/C were filled in triplicate. The seal after its use was handed over to Piar Chand aforesaid.
4. The case property was taken into possession vide seizure memo Ext.PW1/A in the presence of Piar Chand (PW-2) and Mohar Singh, the then Head Constable (PW-1). The copy of the seizure memo was also supplied to the appellant.
5. Ruka Ext.PW9/A was sent for the registration of the case through Constable Uttam Singh.
6. PW-9 Sub-Inspector Pawan Kumar prepared the site plan Ext.PW9/B of the place of recovery.
7. The appellant was arrested. The grounds of arrest were informed vide memo Ext.PW1/C. Personal search of the appellant was also conducted. Memo to this effect is Ext.PW1/D.
8. The information with respect to the arrest of the appellant was supplied to his friend on telephone as intimated by him. Memo to this effect is Ext.PW9/C.
9. Constable Uttam Singh aforesaid on return from the Police Station handed over the case file after registration of the FIR, to PW-9 Sub-Inspector Pawan Kumar around 11.30 am. Thereafter he filled up the number on the documents prepared during the search and seizure.
10. Sub-Inspector Pawan Kumar (PW-9) produced the case property before Inspector/SHO Prem Dass (PW-8). It was re-sealed by him with his seal producing impression of English letter "B". Thereafter the case property was handed over to MHC Manoj Kumari. The search of 'Alans Family House' where the appellant was staying,
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