Partly allowed

Guddu Ram v. State

Himachal Pradesh HC23 Dec 2022CR.A/235/2009

Case brief

AI extract

What is this about?

Appeal in narcotic drug possession case. High Court held entire seized contraband not analyzed; conviction sustained only for analyzed weight of 25 grams, treating it as small quantity. Original sentence modified to one year rigorous imprisonment.

What did the court decide?

Conviction upheld for 25 grams of charas; original sentence of 10 years reduced to 1 year rigorous imprisonment; fine set aside.

Guddu Ram Vs State — Narcotics (NDPS) | Himachal Pradesh HC (2022)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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Cr. Appeal No. 235 of 2009 Reserved on : 22.12.2022 Pronounced on: 23.12.2022

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____________________________________________________________ Guddu Ram … Appellant. Vs. State of Himachal Pradesh ….Respondent _____________________________________________________________

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Coram: Hon’ble Ms. Justice Sabina, Judge. Hon’ble Mr. Justice Sushil Kukreja, Judge.

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Whether approved for reporting?

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For the appellant : Mr. Kulwant Chauhan, Advocate. For the respondent : Mr. P.K.Bhatti, Addl. Advocate General, __________________________________________________________________________________________________________

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Sabina, Judge.

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Appellant has filed the appeal challenging the judgment / order dated 1.8.2008, passed by the Special Judge (II) Addl. Sessions Judge, Mandi District Mandi, whereby, he has been convicted and sentenced as under:-

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Under Section 20 of : Rigorous imprisonment for ten years and to the Narcotic Drugs pay a fine of Rs. 1,00,000/- (Rs. One lac and Psychotropic only). In default of payment of fine, he

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Substances Act, 1985

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shall further undergo rigorous imprisonment for one year.

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Against the Judgement/order of conviction and sentence as above mentioned in para No. 1 of the judgement, appellant had filed an appeal in this Court. Vide order dated 26^th June, 2014 appeal filed by the appellant was allowed by this Court and the appellant was ordered to be acquitted. However, the State went up in appeal against the order passed by this Court and the Hon’ble Supreme Court vide order dated 11^th March, 2022 has allowed the appeal and has remanded the case to this Court for a fresh decision. Hence, the matter has come up before us.

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Prosecution story, in brief, is that on 10^th February, 2007 SHO/Inspector Rajesh Kumar alongwith H.C Shyam Lal, H.C Ram Lal, H.C. Balam Ram had proceeded on patrol duty in an official vehicle towards Khaliar . During mid night at about 00.15 a.m while they were returning from Khaliar they reached Victoria bridge and found the appellant present there. Appellant tried to run away from the spot. On suspicion that he could be a thief, the police party apprehended the appellant and on inquiry he disclosed his name and address. Appellant was carrying a black coloured cloth bag in his right hand on which ‘ HAT’s” was written in red colour. When the bag carried by the appellant was checked it was found that it contained three polythene

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bags i.e. two were of blue colour and one was of white colour. On checking the bag, it was found that it contained charas in the shape of sticks. On weighment, the contraband weighed 5.200 kilograms. Inspector Rajesh Kumar drew the representative samples of 25 grams each, out of the recovered contraband and made them into two separate sealed parcels with seal bearing impression “ K”. The remaining contraband was also made into a sealed parcel and was sealed with seal bearing impression “ K”. NCB Form, in triplicate, was prepared. Sample seal was separately prepared. Appellant was arrested. Ruqa was sent to the Police Station for registration of F.I.R and on the basis of the same, formal F.I.R 85/07, dated 11/02/2007, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “Act” in short), was registered at Police Station Sadar Mandi, District Mandi.

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After receipt of the report of the Forensic Science Laboratory Ex.PW-9/E and on completion of other necessary formalities, challan was presented against the appellant. On 18^th July, 2007 charge was framed against the appellant under Section 20 of the Act by the trial Court. Appellant did not plead guilty to the charge framed against him and claimed trial.

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Prosecution examined 9 witnesses in order to prove its case during trial. Appellant when examined under Section 313 of the

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Code of Criminal Procedure, 1973, prayed that he was innocent and had been falsely involved in the case. He submitted that on 10^th February, 2007 he was on his way to the house of his maternal uncle and when he reached village Namlay two persons were going ahead of him who were carrying a bag in their hand. In the meantime, the police came from the other side and these two persons ran away after leaving the bag on the road. Thereafter, the police apprehended the appellant on suspicion and brought him to police station Sadar and a false case had been fabricated against him. Appellant had examined two witnesses in his defence.

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Learned counsel for the appellant has submitted that the sample examined by the Forensic Science Laboratory weighed 25 grams and there was no evidence on record to prove that the sample, which was examined in the laboratory, was representative sample drawn out of the recovered contraband from the appellant. There were material contradictions in the statements of the prosecution witnesses and the said fact rendered the prosecution story doubtful. He further submitted that no independent witness had been joined at the time of recovery and there was deficiency in filling up the columns of the NCB form.

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Shri P.K. Bhatti, learned Additional Advocate General, on

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the other hand, has opposed the appeal and has submitted that the

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prosecution had been successful in proving its case as the prosecution witnesses have duly supported the prosecution case.

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In order to prove the recovery of the contraband from the appellant, the prosecution has examined recovery witnesses PW-3 ASI Sham Lal, PW-4 H.C. Balam Ram and PW-9 Inspector Rajesh Kumar. The said witnesses have deposed as per the prosecution story. Witnesses have categorically deposed that when the bag carried by the appellant was checked it was found that it contained charas . PW-3 and PW-4 have deposed to the effect that the contraband was in the shape of sticks. Out of the recovered contraband two samples weighing 25 grams each were separated and were made into sealed parcel. One sample parcel was sent to the Forensic Science Laboratory for examination. As per the report of the Forensic Science Laboratory the sample weighed 27.875 grams and as per the result of the examination, the sample was of charas . As per the report of the laboratory the sample parcel which had reached the laboratory was bearing three seals of impression “K” and the seals were found intact and tallied with the seal impression sent by the SHO on NCB form.

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We have carefully gone through the testimonies of the recovery witnesses and their statements inspire confidence. The said witnesses were cross-examined at length but nothing could be elicited

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from their cross-examination which would render their statements doubtful.

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DW-1 Tej Ram has deposed that he was running a shop at village Navlya . On 10^th February, 2007 two persons had crossed the road in front of his shop. It was about 6 or 6.30 p.m. The said persons had gone about 100 yards ahead of his shop and one van was parked there. Four-five persons were present in the Maruti Van. The said 4-5 persons tried to catch the said two persons and they had thrown a bag on the road. The appellant, who was walking behind the said persons at a distance of 15-20 miters, was apprehended by the persons in civil dress. In his cross-examination he deposed that he had closed his shop at about 8 or 8.30 p.m. He denied the factum of apprehension of the appellant at Victoria bridge during night time. He deposed that the appellant was personally known to him since long.

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DW-2 Bhag Chand has corroborated the statement of

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DW-1 and has stated that he was sitting in the shop of DW-1 when the incident occurred. In his cross-examination he deposed that he did not know the other persons personally. He stated that appellant was known to him since long.

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Statements of DW-1 and DW-2 fail to inspire confidence

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and rebut the testimonies of the recovery witnesses. Apparently, DW-1

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and DW-2 have deposed in favour of the appellant as they were known to him since long. Moreover, the said witnesses had never moved any complaint before the higher authorities with regard to false involvement of the appellant in this case. Hence, we are of the opinion that the testimonies of the recovery witnesses are liable to be believed with regard to the recovery of the contraband from the appellant.

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Although in the present case, no independent witness was joined at the time of recovery but recovery in the present case was effected in the month of February and during mid night. Therefore, it is probable that no independent witness was available at the spot at the time of recovery. Moreover, it is a settled proposition of law that in a case where independent witness has not been joined then the said fact is not fatal to the prosecution case but the statements of the official witnesses are to be scrutinized carefully. In the present case, official witnesses were acting in discharge of their official duties and has no reason to falsely implicate the appellant in this case. Moreover, there is nothing on record to discredit the testimonies of the recovery witnesses.

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So far as NCB form Ex.PW-9/A is concerned, perusal of the reveals that the same has been duly filled in and signed by PW-9. The same has been duly proved by PW-9. There is no cutting or over

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writing in the NCB form. Hence, the argument raised by the appellant that no reliance could be placed on the NCB form or that it had not been filed in at the spot, has no basis.

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The next question that arises for consideration is with regard to the fact as to whether the prosecution has been successful in establishing that the recovered contraband from the appellant weighed 5.200 kilograms, as deposed by the official witnesses.

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From the testimonies of PW-3 and PW-9 it is evident that the seized contraband was in the shape of sticks. PW-9 had drawn two samples weighing 25 grams each from the recovered contraband. However, the recovery witnesses have not deposed anything about the mode and manner in which the representative samples were drawn from the recovered contraband. Since, in the present case the recovered contraband was in the shape of sticks it was incumbent upon the prosecution to establish that the representative samples had been drawn by making the recovered contraband into a homogeneous mixture. The recovered contraband was in the shape of sticks and in such a situation it was incumbent upon the prosecution to establish that the representative samples had been drawn out of the entire recovered contraband. There is nothing on record to establish that any specific procedure was adopted for drawing a representative sample.

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Ex.PW-9/G is the report of the Forensic Science Laboratory. A perusal of the same reveals that one sealed cloth parcel was received and the net weight of the substance was 27.875 grams. After examination, it was opined that the exhibit was of ‘ charas’.

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Since in the present case there is no evidence on record to establish that representative samples, out of the entire recovered contraband, had been drawn, hence, it can be said to be a case of recovery of only 25 grams of ‘ charas’.

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In Khekh Ram Vs NCB, Criminal Appeal No. 450 of 2016 decided on 29.12.2017, Division Bench of this High court held as under:

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“78. Additionally and more importantly, we notice that the entire bulk of the alleged contraband was not sent for analysis and only four samples of 25 grams each were, in fact, sent for analysis. Thus, taking the prosecution case at best what is proved on record is the recovery of only 100 grams of charas from the possession of the accused. Admittedly, the alleged contraband was in different shapes and sizes in the form of biscuits and flat pieces.

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79. Therefore, in this background, the question arise as to whether the entire bulk of 19.780 Kgs as was recovered, in absence of there being chemical examination of whole quantity, can be held to be charas.

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80. This question need not detain us any longer in view of the authoritative pronouncement by the Hon’ble Supreme Court in Gaunter Edwin Kircher vs. State of Goa (1993) 3 SCC 145,

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wherein the Court was dealing with the alleged recovery of two cylindrical pieces of Charas weighing 7 grams and 5 grams each. However, only one piece weighing 5 grams was sent for chemical analysis and was established to be that of Charas. The learned trial Court convicted the accused by taking the total quantity to be 12 grams and such finding was affirmed by Hon’ble Supreme Court, however, reversing such findings.”

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In State Vs Naresh Kumar, Criminal Appeal No. 782 of 2008 decided on 28.6.2019, Division Bench of this High court held as under:

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“23. As quantum of recovery is concerned, as per prosecution case, 1 Kg. 500 grams charas was recovered from the respondent and after taking out two samples of 25 grams each, the remaining contraband was sealed in parcel and samples were also sealed in two different parcels. Bulk of charas claimed to be recovered from the respondent is Ext.P2 but during investigation and thereafter also, only one sample of 25 grams of charas was sent to CFSL Chandigarh for chemical analysis and as per chemical analyst report Ext. PX the sample was found to be of charas.

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24. As per ratio laid down by the Apex Court in Gaunter Edwin Kircher vs. State of Goa, reported in (1993)3 SCC 145 the 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. The failure to send the entire mass for chemical analysis would result to draw inference that said contraband has not been analyzed and identified by CFSL as the charas.

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25. Learned Single Judge of this Court in Dhan Bahadur vs. State of H.P. reported in 2009(2) Shim.L.C. 203, after relying upon the judgment in Gaunter Edwin Kircher’s case supra, has held that only analyzed quantity of contraband can be said to have been recovered from the respondent. Applying the ratio of law laid down by the Apex Court and followed by learned Single Judge of this Court, we find that in the present case quantity of recovered contraband is to be taken as 25 grams only and therefore, respondent can be convicted for recovery of 25 grams charas from his conscious possession for which punishment has been provided under Section 20(b)(ii)(A) for a term which may extend the six months or with fine which may extend to Rs.10,000/- or/with both.”

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21. In State of HP Vs Sultan Singh and Others Criminal

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Appeal No. 324 of 2008, decided on 22.4.2016, Division Bench of this High court held as under:

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“16. Charas was recovered from three different packets. PW8 Constable Bhupinder Singh has categorically admitted in his cross-examination that IO did not mix up contents of the packets Ext. P2 to P4. PW-10 ASI Ghanshayam himself has admitted in his cross-examination that he did not mix up the contents of three polythene packets. IO should not have continued with the preparing of documents till the police official, who was sent to get independent witnesses, came back. IO should have made entire contraband homogenous for the purpose of chemical examination.”

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22. In State of Himachal Pradesh Vs Sohan Singh , Criminal

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Appeal No. 259 of 2009 decided, on 23.12.2015, Division Bench of this High court held as under:

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“16. We have not understood why IO has sent PW-2 Hitender Kumar to an area which was not thickly populated instead of sending towards an area which was thickly populated to call independent witnesses. Case of the prosecution is that accused was given option to be searched before a gazetted officer or a Magistrate. He opted to be searched by the police. Consent memo is Ext. PW-1/A. According to the prosecution case, PW-2 Hitender Kumar was present on the spot and he was the 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, the presence of PW-2 Hitender Kumar at the spot is doubtful. Rukka was prepared at 11.30 pm by IO PW-12 Kishan Chand but was sent at 12.30 pm. According to HHC Padam Singh, samples were not taken homogenously. Few sticks were taken. According to PW12 Kishan Chand from all the four packets, samples were drawn. There is variance in the statements of PW-1 Padam Singh, PW-2 Hitender Kumar and PW-12 Kishan Chand whether sample was prepared homogenously or not entire contraband was required to be mixed homogenously for preparing samples to be sent for chemical examination to SFL.”

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Thus, from the evidence available on record, we are of the opinion that the sample weighing 25 grams of charas examined by the Forensic Science Laboratory, was not the representative sample of the

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entire bulk and therefore, appellant cannot be held to have been found in illegal conscious possession of 5.200 kilograms of charas and he can be held to be in possession of 25 grams of charas , which, as per the Act, would fall within the definition of small quantity.

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Accordingly, appellant is held guilty of offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for having been found in conscious possession of only small quantity of charas and is sentenced to undergo rigorous imprisonment for one year. The sentence qua fine is set-aside. The impugned judgment of conviction and order of sentence passed by the learned trial Court is accordingly modified.

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The appellant was arrested on 11^th February, 2007. He remained in judicial custody till the end of June, 2014. The appellant has already undergone much more sentence than could be inflicted upon him and is already on bail.

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However, in view of the provisions of Section 437 of Code of Criminal Procedure, 1973, appellant is directed to furnish his personal bond in the sum of Rs. 25,000/- with one surety in the like amount before the learned Registrar (Judicial) of this Court, which shall be effective for a period of six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant

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of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court.

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The appeal is accordingly disposed of.

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(Sabina) Judge

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(Sushil Kukreja) December 23, 2022 (TM) Judge

Guddu Ram v. State

Case brief

What is this about?

What did the court decide?

Guddu Ram v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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