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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
Pappudeen Son Of Shri Alafdeen, Village Kamla – Appellant
Versus
State Of Himachal Pradesh - Respondent
Criminal Appeal No. 522 of 2008
Decided on : 16-09-2022
Narcotic Drugs & Psychotropic Substances - Conviction under Section 20 - 52A, 52A(2)(c), Standing Order No. 1/89 - The court found that the samples sent for chemical analysis were not representative, creating doubt on the legitimacy of the case. The court highlighted the conflict between the statutory provision and the standing order, emphasizing the need for compliance with the statutory provisions. The court referred to previous cases to support the requirement for representative samples and the consequences of non-compliance.
Fact of the Case:
The appellant was convicted for the offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act for possession of charas. The prosecution's case was based on the recovery of charas from the appellant's vehicle during a police patrolling duty. The appellant was found in possession of 900 grams of charas, but the court raised doubts about the legitimacy of the case due to the lack of representative samples for chemical analysis.
Finding of the Court:
The court found that the samples sent for chemical analysis were not representative of the entire bulk of the substance, creating doubt on the quantity of charas found in the appellant's possession. The court also considered the appellant's custody, trial, and release on bail, ultimately sentencing the appellant to imprisonment already undergone and directing the deposit of the fine amount.
Issues: The key issues revolved around the legitimacy of the case based on the recovery of charas, the compliance with statutory provisions for sampling and chemical analysis, and the consequences of non-compliance with the legal framework.
Ratio Decidendi: The court emphasized the need for representative samples for chemical analysis, highlighting the conflict between the statutory provision and the standing order. The court referred to previous cases to support the requirement for compliance with statutory provisions and the consequences of non-compliance.
Final Decision: The appellant was sentenced to imprisonment already undergone and directed to deposit the fine amount. The judgment and sentence order passed by the trial court were modified accordingly.
JUDGMENT :
By way of instant appeal, appellant has assailed judgment dated 30.8.2008, passed by learned Special Judge, Chamba Division, District Chamba, H.P. in Sessions Trial No. 60 of 2007 along with sentence order dated 1.9.2008, whereby the appellant has been convicted for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act (for short the Act), and has been sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 5000/- and in default of payment of fine to undergo simple imprisonment for a period of one month.
2. The prosecution case in nut-shell was that on 23.2.2007, PW-11, SI, Abhay Singh along with PW-1 ASI Ramesh Kumar, PW-2, Constable Suneel Kumar, PW-3 SPO Darshan Singh, and PW-7 Salim Khan were present at Madhuwar in connection with patrolling duty and traffic checking. At about 6.10 P.M., a Maruti Van No. HP 57-1243 was stopped for checking. Appellant was driving the said vehicle and there was none else occupying the same. Charas was recovered, wrapped in white coloured polythene and kept in the dashboard of the vehicle. The charas was weighed and found to be 900 grams. Two samples of 25 grams each were drawn. The samples and also the bulk of charas were placed in separate cloth parcels and sealed with seal impressions ‘T’ & ‘S’. Recovery and seizure memo Ext. PW-1/A was prepared. Facsimile of sample seals ‘T’ & ‘S’ were preserved as Ext. PW- 1/B. Relevant columns of NCB form Ext. PW-11/A were filled by PW-11 SI Abhay Singh. Rukka Ext. PW-11/B was prepared and was sent to Police Station, Tissa for registration of case through PW-3, SPO Darshan Singh. A copy of Rukka was handed over to PW-2, Constable Suneel Kumar for submission to Superintendent of Police, Chamba. FIR Ext. PW-8/A was registered. Site plan Ext. PW-11/C was prepared. Appellant was formally arrested. The recovered contraband along with appellant was forwarded to the Police Station. SHO Swaru Ram conducted re-sealing proceedings. The contraband along with sample seals was deposited in the Malkhana at Police Station, Tissa. The samples of charas were sent for chemical analysis to SFSL, Junga and as per report Ext. PA, the same was found to be charas. Challan was prepared and presented in the Court.
3. Appellant was charged for commission of offence under Section 20 of the Act. Prosecution examined total 11 witnesses. PW-1, ASI Ramesh Kumar, PW-2, Constable Suneel Kumar, PW-3, SPO Darshan Singh, PW-7 Salim Khan were examined as spot witnesses. PW-11 SI Abhay Singh was examined as spot witness and the Investigating Officer. PW-4, Constable Om Parkash was examined to prove receipt of copy of Rukka Ext. PW-4/A and Special Report Ext. PW-4/B in the office of Additional Superintendent of Police Chamba. PW-5, Constable Tilak Raj deposed regarding re-sealing process conducted by SHO Swaru Ram. PW-6, Bansi Lal stated that the police had taken from him the weights and scale on 23.2.2007. PW-7 Salim Khan the alleged eye witness had turned hostile and did not support the case of prosecution. PW-8 HC Charan Singh proved the safe deposit of contraband in the Malkhana. PW-9 Kamlesh Kumar proved the safe transit and custody of the samples of contraband from Police Station to SFSL, Junga. PW-10, Constable Dev Raj was a formal witness and proved daily diary reports 10 and 7, as Ext. PW-10/A and Ext. PW-10/B.
4. Appellant was examined under Section 313 Cr.P.C. He did not choose to lead the defence evidence. On conclusion of trial, appellant was convicted for the offence under Section 20 of the Act and was sentenced, as noticed above.
5. I have heard learned counsel for the parties and have also gone through the record carefully.
6. Sh. N. S. Chandel, learned Senior Advocate representing the appellant contended that the samples sent for chemical analysis were not representative samples. In absence of samples being representative, the entire quantity, allegedly recovered by the police could not be said to be the chara
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