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2016 Supreme(HP) 1814
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR, JJ.
Arun Kumar - Appellant
Versus
State of Himachal Pradesh - Respondent
Cr. Appeal No. 181 of 2015
Decided on : 21-10-2016
Advocate Appeared:
For the Appellant :Mr. Anoop Chitkara, Advocate.
For the Respondent: Mr. D.S. Nainta, Addl. A.G.
The main legal point established in the judgment is that the quantity of the recovered charas must be considered to determine the appropriate section of the NDPS Act for sentencing.
Headnote:
NDPS Act - Recovery of Charas - Section 20
Fact of the Case:
The appellant was convicted under Section 20 of the NDPS Act for possessing one kilogram of charas. The police party found the appellant holding a rucksack containing charas during a routine traffic check. The trial court found the appellant guilty and sentenced him to 10 years of rigorous imprisonment and a fine of Rs.1,00,000. The appellant appealed to quash the conviction and sought a reduction in the sentence.
Finding of the Court:
The court found that the recovery of charas from the appellant's possession was proven. However, it held that the quantity of charas recovered was less than the commercial quantity, and therefore, the appellant should have been sentenced under a different provision of the NDPS Act. The court reduced the sentence to the period already served and a fine of Rs.10,000.
Issues: The issues included the validity of the recovery, compliance with NDPS Act provisions, and the quantity of charas recovered.
Ratio Decidendi: The court held that the recovery of charas from the appellant's possession was proven, but the quantity was less than the commercial quantity, leading to a reduction in the sentence. The court also found no violation of the provisions under Sections 42 and 50 of the NDPS Act.
Final Decision: The court partly allowed the appeal, reduced the sentence, and ordered the release of the appellant. It also initiated proceedings against a witness for making false statements.
Appellant Arun Kumar herein is a convict. He has been convicted by learned Special Judge Mandi, District Mandi under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’ in short) vide judgment dated 17.04.2015 passed in Sessions Trial No. 51/2010 and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay Rs.1,00,000/- as fine.
2. On 26.04.2010, a Police party comprising lady PSI Reeta Devi, PW-9 ASI Mohan Lal (II), PW-1 Head Constable Kamal Kant, HHC Prakash Chand and Constable Puran Chand of Police Station, Balh District Mandi left towards village Nagchala side at about 3.00 p.m. for laying ‘nakka’ and conducting traffic checking. Rapat Ext. PW-5/A in this regard was entered in daily diary. They laid ‘nakka’ at Nagchala and started traffic checking there. Around 4.15 p.m. HRTC bus bearing registration No. HP65-1768 enroute Manali to Delhi reached at the place of ‘nakka’. The bus was got stopped at the place of ‘nakka’. The police party started checking the bus. The convict allegedly occupying seat No. 36 was found to be holding a black, red and grey coloured rucksack (bag) on his legs. On seeing the police party, he became nervous and behaved in a suspicious manner. Looking such behaviour of the convict, the I.O PW-9 suspected some incriminating substance in his possession. Therefore, his antecedents were inquired into in the presence of Shri Hari Singh, driver of the bus and PW-6 Bakshi Ram its conductor. Thereafter, the police personnel offered their search first, however, nothing incriminating was recovered from their possession. Memo Ext. PW-6/C was prepared in this regard. It is thereafter the rucksack, the convict was holding on his legs was searched and one polythene packet wrapped in a white colour cloth was recovered therefrom. On opening the said packet, charas in the shape of sticks was recovered in presence of S/Shri Hari Singh and Bakshi Ram aforesaid. The recovered charas was weighed and found one kilogram. PW-9 resorted to the sampling and sealing process and sealed the recovered charas in a parcel with 15 impressions of seal ‘D’. The sample of seal Ext. PW-9/A was drawn separately. The recovered charas was taken in possession vide seizure memo Ext. PW-6/A. The NCB-I forms Ext. PW-7/E were filled in on the spot in triplicate. The facsimile of seal ‘D’ was also put on these forms. It is thereafter rukka Ext. PW- 7/A was prepared and sent to the Police Station through HC Kamal Kant, PW-1. On the basis of rukka FIR Ext. PW- 7/B came to be recorded by PW-7 Surinder Pal, the then Station House Officer, Police Station, Balh. PW-7 had also made endorsement Ext. PW-7/C over the rukka. The case file was taken to the I.O on the spot by PW-1. The I.O. PW-9 had prepared the spot map Ext. PW-8/B. The ticket of bus Ext. PA was recovered from the convict and taken into possession vide memo Ext. PW-6/C. The grounds of arrest were disclosed to the convict vide memo Ext. PW-6/D and he was arrested. The personal search of the convict was also conducted vide memo Ext. PW-6/B.
3. On the completion of investigation at the spot, the convict along with case property was brought to Police Station, Balh. The IO PW-9 has produced the case property along with sample of seal, NCB forms and seizure memo etc., before PW-7 the Station House Officer. Rapat Ext. PW-5/B was entered in this regard in daily diary. PW-7, the Station House Officer has re-sealed the parcels containing the recovered charas with seal ‘A’. He has also drawn the sample of seal, which is Ext. PW-7/D. It is thereafter the case property along with sample of seals, NCB forms and seizure memo was handed over to PW-4 Head Constable Prabhakar, the then additional MHC, Police Station, Balh for safe custody in the Malkhana. Rapat Ext. PW-5/C in this regard was also entered in daily diary. A memo Ext. PW- 4/A to this effect was also prepared. PW-4 has received the case property
