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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sabina, Satyen Vaidya, JJ.
Shri Ashok Kumar, Son of Shri Nand Lal - Appellant
Versus
State of Himachal Pradesh – Respondent
Criminal Appeal Nos. 15, 23 & 86 of 2009
Decided On : 07-04-2022
Narcotic Drugs Psychotropic Substance Act, 1985 - Section 20, (1) (b), 57, 52, 53, 2, 52A (2) ©, A(1), 20(b)(ii)(A) - Indian Evidence Act, 1872 - Code of Criminal Procedure, 1973 - Vehicle Stopped For Checking - Bag - Charas - A vehicle came from side of Solan and was stopped for checking - Said vehicle was being driven by appellant Ashok Kumar and appellant Ramesh was found sitting on front seat as passenger - Ramesh Chand was holding a bag on his lap - Bag was checked and a carton was found inside - Black coloured substance in shape of balls and cakes, wrapped in polythene sheets were found in carton - Recovered substance was found to be charas from its smell.
Finding of the court:
According to prosecution case, PW-2 was present on spot and he was person who has taken Rukka to Police Station - However, in his cross-examination he has denied that Ext. PW- 1/A was prepared in his presence - He has also admitted that Ext. PW1/E was also not prepared in his presence - Thus, presence of PW-2 at spot is doubtful - Rukka was prepared by IO PW- 12 - According to HHC Padam Singh, samples were not taken homogenously - Few sticks were taken - According to PW12 from all four packets, samples were drawn - Thus, from entirety of evidence available on record Court is not convinced that sample of 25 grams was representative of entire bulk and hence appellants in appeals can be held to be in conscious possession of 25 grams of Charas or at most 50 gms. by including weight of other sample, which as per Act is small quantity.
Result: Appeal dismissed.
JUDGMENT :
Satyen Vaidya, J.
All these appeals are being disposed of together, as they arise from the single judgment and sentence dated 31.12.2008/17.01.2009 and also involve identical questions of facts and law.
2. Ashok Kumar and Ramesh Chand were jointly tried for commission of offence under Section 20 of the NDPS Act in Sessions Trial No. 13-S/7 of 2008 by learned Special Judge II, Solan. Both were convicted for said offence and were sentenced to undergo imprisonment for two years each with fine of Rs. 40,000/- each and in default of payment of fine to further undergo imprisonment for six months each. While passing the aforesaid sentence learned Special Judge has recorded reasons as under:
3. Whereas, in Cr. Appeals No. 15 of 2009 and 23 of 2009 appellants Ashok Kumar and Ramesh Chand have assailed their respective conviction and sentence, State has filed appeal No. 86 of 2009 seeking enhancement of their sentence.
4.1 The case as set up by prosecution was that on 8.5.2008, a police party consisting of Insp/SHO Ramesh Chand (PW-9), ASI Prithvi Chand (PW-10), HC Kanwar Singh (PW-1), HC Nand Lal (PW- 2), C. Gurbax Singh (PW-3) and C. Desh Raj (not examined) left Police Station, Parwanoo, District Solan, H.P., at 9.10 PM for patrolling and crime detection vide DDR No. 41(A) Ext. PW-7/D. They laid check Naka on NH-22, Sector-6, Parwanoo.
4.2 At about 10.00 PM a vehicle (Trax) No. HP-02A-0289 came from the side of Solan and was stopped for checking. The said vehicle was being driven by appellant Ashok Kumar (Criminal Appeal No. 15 of 2009) and appellant Ramesh (Criminal Appeal No. 23 of 2009) was found sitting on front seat as passenger. Ramesh Chand was holding a bag on his lap. The bag was checked and a carton was found inside. Black coloured substance in the shape of balls and cakes, wrapped in polythene sheets were found in the carton. The recovered substance was found to be charas from its smell and identification memo Ext PW-1/A was prepared.
4.3 The recovered substance was weighed and found 4 Kg 200 grams. Two separate samples weighing 25 grams each were taken. The samples as well as balance bulk contraband were sealed in separate cloth parcels with six seals each having impression “W”. Facsimile of seal impression was separately preserved on piece of cloth Ext PW-1/B. NCB form Ext.PW-1/C was filled. Seizure memo of bulk contraband and samples Ext. PW-1/D was prepared.
4.4 PW-9 Insp./SHO Ramesh Chand prepared “RUKKA” Ext. PW-3/A and sent the same to Police Station for registration of FIR through PW-3 C. Gurbax Singh. PW-8 ASI Prem Singh made endorsement Ext PW-8/A thereon. FIR No. 84/08 Ext. PW-7/A was registered.
4.5 PW-9 Insp./SHO Ramesh Chand handed over further investigation to PW-10 ASI Prithvi Chand vide memo Ext PW-1/E. Appellants were stated to have been formally arrested.
4.6 The recovered contraband and samples were handed over to PW-7 HC Hem Raj (MHC) and report Ext PW-7/B was made to this effect in Malkhana Register. On 9.5.2008 one sealed sample Ext P-5 was sent to FSL Junga for chemical examination through PW-4 C. Krishan Kumar. On the same day i.e. 9.5.2008 special report PW-5/A under section 57 of the Act was prepared and sent to superior officer. On 20.6.2008 the SFSL report along with sample were received back at Police Station through C. Vijay Kumar (not examined). The SFSL, Junga reported the samples sent to it to be the charas.
5. On completion of investigation, challan was presented and appellants were accordingly charged
Point of law: Section 52-A as amended by Act 16 of 2014, deals with disposal of seized drugs and psychotropic substances. It reads as Disposal of seized narcotic drugs and psychotropic substances.—(1....
The amount of contraband, recovered from the respondent, cannot be held more than that which was sent to Chemical Analyst and was affirmed by the Forensic Science Laboratory as a contraband.
The main legal point established in the judgment is the requirement for representative samples for chemical analysis in cases involving narcotic drugs and psychotropic substances, emphasizing the nee....
Thee amount of contraband, recovered from the respondent, cannot be held more than that which was sent to Chemical Analyst and was affirmed by Forensic Science Laboratory as a contraband.
Failure to comply with mandatory sampling procedures under Section 52A of the NDPS Act invalidates the prosecution's case, leading to acquittal.
The nature of contraband under the NDPS Act must be seen as per the statutory definition, and procedural compliance with the Act, including communication of rights to the accused, is crucial.
The main legal point established in the judgment is that only the analyzed quantity of contraband can be considered as recovered, and failure to send the entire mass for chemical analysis would resul....
Non-compliance with the procedure for drawing up the sample of the narcotic, lack of compliance with the prescribed procedure under the NDPS Act, 1985 at all the stages, and the case being based on t....
Appellate court upholds acquittal under NDPS Act if trial view possible; strict compliance with sampling procedures essential; witness contradictions, no independent corroboration fatal to prosecutio....
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