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2022 Supreme(HP) 321
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Sabina, Satyen Vaidya, JJ.
Ramesh Kumar, Son Of Shri Rajesh Kumar - Appellant
Vs.
State Of Himachal Pradesh - Respondent
Criminal Appeal No. 280 of 2020
Decided On : 11-07-2022
Advocate Appeared:
For the Appellant :Sh. Malay Kaushal, Advocate
For the Respondent:Sh. Kamal Kant, Deputy Advocate General
Point of Law: Amount of contraband, recovered from the respondent, cannot be held more than that which was sent to the Chemical Analyst and was affirmed by the Forensic Science Laboratory as a contraband.
Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 20, 29, 52A – Conviction – Appeal – Safe transit and custody of the sample in sealed parcel from SFSL – Search and Seizer of Charas – Safe transit and custody of the sample in sealed parcel from SFSL – Sample of 25 grams examined by SFSL, Junga was not representative of entire bulk of substance and hence, the appellants cannot be held to have been found in conscious possession of 4.166 K.G. of charas. The appellants can only be held to be in possession of 25 grams or at the most 50 grams of charas by including the weight of other sample, which as per Act is small quantity. [Para 22]
Finding of the Court:
Officer in-charge of Police station is required to prepare an inventory of the Narcotic Drugs Psychotropic Substance seized, containing details relating to description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars, as may be considered relevant, by the officer concerned and is further required to make an application to the Magistrate for the purposes specified in sub-section (2) of Section 52A of the Act, including permission to draw representative samples of such drugs or substances in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. Substance found from the possession of the appellants was not a single mass. The evidence on record clearly reveals that police had seized the plurality of masses from the possession of the appellants.
Result: Disposed of
JUDGMENT :
By way of instant appeal, appellants have assailed judgment and sentence order dated 17.3.2020, passed by the learned Special Judge-II, Kinnaur at Rampur Bushehar, H.P. in Case No. 17 of 2018, whereby appellants have been convicted and sentenced under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) as under:
| Sr. No. | Name of the appellant | Sentence of imprisonment. | Fine | In Default of payment of fine. |
| 1. | Ramesh Kumar | To undergo rigorous imprisonment for 10 years for commission of offence punishable under Section 20 of the NDPS Act. | Rs. 1,00,000/- | In default of payment of fine, to undergo simple imprisonment for six months. |
| 2. | Man Bahadur | To undergo rigorous imprisonment for 10 years for commission of offence under Section 29 of the NDPS Act | Rs. 1,00,000/- | In default of payment of fine, to undergo simple imprisonment for six months. |
2. The prosecution case in brief is that on 8.8.2018, PW-3 SI Ranjeet Singh, PW-8 ASI Man Dev, PW-4 Constable Sumit Thakur along with ASI Yoginder Singh and HHG Tilak Raj were on patrol duty toward Nirmand Bazaar, Awera etc. At about 5.45 a.m., the police party consisting of aforesaid police officials found appellants approaching Deodhank. On noticing the police party, both of them got perplexed and tried to escape. Appellant Ramesh Kumar threw a bag held by him in his hand, on noticing the police officials. The bag was checked and 4.210 kg charas was recovered. Recovery and seizure proceedings were conducted vide recovery and seizure memo Ext. PW-3/A. Part of NCB Form Ext. PW-3/B was filled up on spot. Rukka Ext. PW-3/D was prepared and sent to Police Station for registration of FIR. FIR Ext. PW-7/A was accordingly registered. The appellants were formally arrested. Case property and appellants were taken to Police Station. Case property was deposited in “Malkhana”.
3. On 10.8.2018, PW-3 SI Ranjeet Singh along with PW-7 HC Vikram Singh No. 61 presented an application before learned JMFC, Anni for drawing proceedings under Section 52A of the Act. Order Ext. PW-3/G came to be passed by learned JMFC, Anni recording that two representative samples of 25 grams each were drawn in his presence from the bulk charas and were sealed in two separate small cloth parcels bearing four seals each with seal impression ‘O’. The remaining charas was also re-sealed with four seals bearing seal impression ‘O’. The inventory was thus certified.
4. One of the sample drawn during proceedings under Section 52A of the Act was sent to SFSL, Junga and was found to be charas vide examination report Ext. PX. The bulk weighing 4.166 kg was destroyed on 28.5.2019 and certificate Ext. PY was issued in this behalf.
5. On completion of investigation, challan was prepared and presented before the Court and the appellants were tried in Case No. 17 of 2018 by the learned Special Judge-II, Kinnaur at Rampur Bushehar, H.P. and sentenced, as noticed above.
6. We have heard learned counsel for the parties and have also gone through the record carefully.
7. Prosecution examined total eight witnesses. PW-3 SI Ranjeet Singh, PW-8 ASI Man Dev and PW-4 Constable Sumit Thakur were examined as spot witnesses. PW-1 Constable Dalip Singh No. 424 was examined to prove the safe transit and custody of the sample in sealed parcel from SFSL Junga to Police Station Nirmand on 16.9.2018. PW-2 was examined to prove the receipt of special report sent by PW-3 to Sub Divisional Police Officer, Anni on 8.8.2018. PW-5 Ram Singh No. 666 proved the safe custody and transit of sample from Police Station Nirmand to SFSL, Junga on 13.8.2018. PW-6 LC Bhishma No. 91 proved Daily Diary Report Ext. PW6/A to Ext. PW-6/C. PW-7 HC Vikram Singh No. 61 proved the safe custody and transit etc. of the case property and sample in the Malkhana and also proved the extract of Ma
