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2022 Supreme(HP) 309
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SABINA, SATYEN VAIDYA, JJ.
TAJ DEEN S/O SHRI NOOR MOHAMMAD – Appellant
Versus
STATE OF HIMACHAL PRADESH – Respondent
Criminal Appeal No. 289 of 2021
Decided On : 05-07-2022
Advocate Appeared:
For the Appellants : N.K. THAKUR, DIVYA RAJ SINGH.
For the Respondent: KAMAL KANT.
Point of Law: Recovery and seizure - If it is not practicable, to send entire quantity then sufficient quantity by way of samples from each of packets or pieces recovered should be sent for chemical examination under a regular panchnama and as per provisions of law.
Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20, 52A - Appeal - Registration of FIR - Search and seizure - Police party belonging to State Narcotic Crime Control and Field Unit Kangra, while on routine patrolling duty had apprehended the appellant at place Zero Point - He was carrying a bag in his right hand - On search of the bag, 2.032 kg charas was recovered - The recovered contraband was seized and kept in the same bag, which was sealed with six seals of seal ‘N’ - The seizure memo Ext.PW7/D was prepared. NCB form in triplicate was filled - If it is not practicable, to send entire quantity then sufficient quantity by way of samples from each of packets or pieces recovered should be sent for chemical examination under a regular panchnama and as per provisions of law.
Findings of the Court:
Court are convinced that the sample of 26 grams examined by SFSL, Junga was not representative of entire bulk of substance and hence, the appellant cannot be held to have been found in conscious possession of 2.032 k.g. of charas. The appellant can only be held to be in possession of 26 grams or at the most 52 grams of charas by including the weight of other sample, which as per Act is small quantity - Accordingly, appellant is held guilty of offence under Section 20 of the Act for having been found in conscious possession of only small quantity of charas and is sentenced to undergo rigorous imprisonment for one year - The impugned judgment and sentence order passed by the learned trial Court is accordingly modified - The appellant was arrested - He was ordered to be released on bail by Single Bench of this Court vide order and in compliance thereof, finally released - In this manner, the appellant had remained in custody i.e. for a period of ten months - Appellant is further undergoing the sentence, after passing of impugned judgment and sentence order. Since the appellant has already undergone much more sentence than could be inflicted upon him, the appellant is ordered to be released immediately, if not required in any other case - The Registry is directed to prepare the release warrant forthwith.
Result: Appeal disposed of.
JUDGMENT :
SATYEN VAIDYA, J.
1. By way of instant appeal, appellant has assailed judgment dated 7.8.2021 and sentence order dated 31.8.2021, passed by the learned Special Judge, Chamba Division Chamba, H.P. in Sessions Trial No. 62 of 2018, whereby appellant has been convicted under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and has been sentenced to undergo rigorous imprisonment for a period of twelve years and to pay fine of Rs. 1,50,000/-. In default of payment of fine, to further undergo rigorous imprisonment for a term of one year.
2. The prosecution case in brief is that on 7.7.2018 a police party belonging to State Narcotic Crime Control and Field Unit Kangra, while on routine patrolling duty had apprehended the appellant at place Zero Point Jassourgarh on Tikarigarh to Chamba Road at about 7.00 a.m. He was carrying a bag in his right hand. On search of the bag, 2.032 kg charas was recovered. The recovered contraband was seized and kept in the same bag, which was sealed with six seals of seal ‘N’. The seizure memo Ext.PW7/D was prepared. NCB form Ext.PW18/A in triplicate was filled. Facsimile of sample seal was preserved as Ext.PW7/C.
3. PW-18 SI Nirmal Singh prepared “Rukka” Ext.PW7/E and sent the same to Police Station Tissa, through PW-7, MHC Manohar Lal, for registration of FIR. The investigation was handed over to PW-17, ASI Surjeet Singh, who had reached on spot along with other police officials on receiving information about recovery of contraband. PW-17, ASI, Surjeet Singh was incharge of Police Post Nakrad, falling within the jurisdiction of Police Station, Tissa, District Kangra, H.P. ASI, Surjeet Singh reached the spot. Appellant was formally arrested. The case property along with appellant were taken to Police Station, Tissa and handed over to PW-14, SHO/Inspector Surinder Kumar. The case property was re-sealed with six seals of TD and was deposited with PW-2, HC Pawan Kumar, who was posted as MHC, Police Station, Tissa. The requisite entry Ext.PW2/A was made in Malkhana Register.
4. On 8.7.2018, PW-17, ASI Surjeet Singh produced the case property before JMFC, Chamba for conducting proceedings under Section 52A of the Act. Application Ext.PW17/D with Annexure Ext.PW17/E was presented to the learned JMFC, Chamba, who passed order Ext.PW17/F and issued certificates Ext.PW17/G and Ext.PW17/H. Two samples of 26 grams each were drawn. The samples and remaining bulk were separately sealed with seal impression JM Chamba. Photographs of Court proceedings Ext.PW13/A to Ext.PW13/D were taken.
5. One sample was sent to SFSL, Junga for chemical examination on 9.7.2018 through PW-6 and after the chemical analysis was received back in Police Station on 20.7.2018 through PW-12. The sample was found to be charas by SFSL, Junga vide report Ext.PX.
6. The bulk weighing 1.980 k.g. was destroyed in accordance with law on 28.9.2018 and certificate in this behalf was issued as Ext.PW14/C.
7. On completion of investigation, challan was prepared and presented before the Court. Appellant was tried in Sessions Trial No. 62 of 2018 and was convicted and sentenced, as noticed above.
8. We have heard learned counsel for the parties and have also gone through the record carefully.
9. Prosecution examined total 18 witnesses. PW-18, SI Nirmal Singh, PW-7, HHC Manohar Lal, PW-8 HHC Mohammad Aslam and PW-15, Constable Rockey Kumar were examined as spot witnesses. PW-17 ASI Surjeet Singh was the Investigating Officer. PW-2 HC Pawan Kumar deposed about the safe keeping of contraband in the Malkhana, its transit and receipt, entry in Malkhana Register Ext.PW2/A. PW-6 HHC Dharminder Kumar and PW-12 Constable Suresh Kumar proved the transit and safe custody of the sample from Police Station Tissa to SFSL Junga and back.
10. Sh. N.K. Thakur, learned Senior Advocate, representing the appellant raised the issue as to the mode and manner in which the sample was drawn during investigation of the case. He contended with
