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 result in the inference that the contraband has not been analyzed and identified.

JUDGMENT :

SABINA, J.

1. Appellant has filed the appeal challenging the judgment/order dated 21.11.2022, passed by the Special Judge-II, Kinnaur at Rampur Bushahr, District Shimla, whereby, he has been convicted and sentenced as under:

2. Prosecution story, in brief, is that on 25th February, 2021 H.C. Kesar Singh alongwith other police officials were present near Dhishni Mod on patrol duty. At about 3.30 a.m. a person came from Karshala side carrying a bag in his right hand. H.C. Sandeep stopped the vehicle near that person and inquired from the person as to why he was roaming around at such odd hours. The said person became nervous and failed to give any satisfactory reply to the query and tried to flee from the spot. On suspicion the said person was apprehended by the police and on inquiry he disclosed his name as Kehar Singh (appellant). When the bag carried by the appellant was checked it was found that it contained charas. Before checking the bag Mohinder Singh was joined as an independent witness alongwith the police party. The recovered contraband was in the shape of balls and on weighment it weighed 2 kilograms and 603 grams. The recovered contraband was made into a cloth parcel and was sealed with seal bearing impression ‘A’. NCB form was prepared and seal after use was handed over to Mohinder Singh. Photographs were taken at the spot. Appellant was arrested. Ruqa was sent to the Police Station through H.C. Kesar. After registration of the F.I.R. and H.C. Rajesh reached the spot for further investigation.

3. After completion of investigation and on receipt of the report of the Chemical Examiner Ex. P-5/PW-7, Challan was presented against the appellant. On 13th January, 2022 charge was framed against the appellant under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as the Act) by the trial Court. Appellant did not plead guilty to the charge framed against him and claimed trial.

4. Prosecution examined 13 witnesses in order to prove its case during trial. Appellant when examined under Section 313 of the Code of Criminal Procedure, 1973, prayed that he was innocent and a false case has been registered against him. The appellant did not examine any witness in his defence.

5. Learned counsel for the appellant has submitted that the sample examined by the Forensic Science Laboratory weighed 39 grams and there was no evidence on record to prove that the sample, which was examined in the laboratory, was a representative sample drawn out of the recovered contraband from the appellant. Independent witness PW-1 Mahender Singh had not supported the prosecution case during trial.

6. Shri Varun Chandel, learned Additional Advocate General, on the other hand, has opposed the appeal and has submitted that the prosecution had been successful in proving its case as the prosecution witnesses have duly supported the prosecution case.

7. As per the prosecution, 2.603 Kilograms of charas was recovered from the bag carried by the appellant. In order to prove the recovery of the contraband from the bag carried by the appellant prosecution examined recovery witnesses PW-3 Kesar and PW-10 HC Sandeep Kumar. The said witnesses have categorically deposed that the appellant on the day of recovery was carrying a bag in his hand and on seeing the police party, he tried to run away. When the bag carried by the appellant was searched, it was found that it contained charas in the shape of balls. Photographs on record also reveal that the recovered contraband was in the shape of small balls.

8. We have carefully gone through the testimonies