Partly allowed

Ravinder Kumar v. State of Hp

Himachal Pradesh HC10 Nov 2022CR.A/607/2019

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal against conviction and sentence under Section 20 of the NDPS Act. The court held that one kilogram of charas falls between small and commercial quantities, not as commercial quantity. Consequently, the sentence was reduced from ten years to four years rigorous imprisonment and the fine was adjusted.

What did the court decide?

Conviction upheld; sentence reduced to four years rigorous imprisonment; fine reduced to Rs. 25,000; default imprisonment reduced to three months.

Ravinder Kumar Vs State of Hp — Narcotics (NDPS) | Himachal Pradesh HC (2022)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 3^rd DAY OF NOVEMBER, 2022

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BEFORE

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HON’BLE MS. JUSTICE SABINA

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HON’BLE MR. JUSTICE SUSHIL KUKREJA

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CRIMINAL APPEAL NO.607 OF 2019

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RESERVED ON: 3^rd NOVEMBER, 2022

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PRONOUNCED ON: 10^th NOVEMBER, 2022

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Between:-

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RAVINDER KUMAR, SON OF SH. BHALE RAM, RESIDENT OF AVERA KHEDI, TEHSIL PANIPAT, HARYANA, THROUGH SMT. SUSHMA, WIFE OF SH. RAVINDER KUMAR, RESIDENT OF AVERA KHEDI, TEHSIL PANIPAT, HARYANA, WIFE-CUM-NEXT FRIEND OF APPLICANT/APPELLANT. (BY MR. DALIP K. SHARMA, ADVOCATE AS LEGAL AID COUNSEL) AND

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….APPELLANT

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STATE OF HIMACHAL PRADESH ….RESPONDENT (MR. KUNAL THAKUR, DEPUTY ADVOCATE GENERAL)

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______________________________________________________

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This Criminal Appeal coming on for hearing this day, Hon’ble Ms. Justice Sabina, delivered the following:

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J U D G M E N T

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Appellant has filed the appeal, challenging the

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judgment/order dated 19.06.2019/24.06.2019, whereby, he has

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been convicted and sentenced as under:-

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Section	Sentence imposed on the convict
Under Section 20 of the	Rigorous imprisonment for
Narcotic Drugs and	ten years and to pay a fine of
Psychotropic Substances	Rs.1,00,000/- (Rupees one
Act, 1985.	lac). In default of payment of fine, the convict shall
	further undergo simple
	imprisonment for six months.

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Prosecution story, in brief, is that on 30.06.2010, at

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about 07.00 p.m, S.H.O. Sita Ram alongwith other police officials, were present at Bazir Baoli on patrol duty. In the meantime, one person was seen coming from Nirmand side towards Bazir Baoli. The said person was carrying a black coloured bag in his right hand. On seeing the police party, the said person got perplexed and tried to escape from the spot. The said person was apprehended by the police officials. On

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inquiry, the said person disclosed his name as Ravinder Kumar.

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On the basis of suspicion, Station House Officer gave his search to the appellant in the presence of other police officials. Thereafter, Station House Officer gave an option to the appellant under Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’ in short) vide Ex.PW-4/B that he had a right to get his search effected in the presence of a Magistrate or a Gazetted Officer. The appellant reposed confidence in the police party. As per the prosecution case, the place of recovery was a secluded place and no independent witness was available. Therefore, the black coloured bag carried by the appellant was opened by the police party. On opening the bag, a carry bag of rust colour was recovered. When the said rust colour bag was opened, it contained charas in the form of sticks and balls. On weighment, the recovered charas weighed one kilogram. The recovered contraband was put in the same carry bag and the carry bag was again put in the black coloured bag and the same was made into a cloth sealed parcel with nine seals bearing impression ‘T’. Seal impression was separately prepared. Narcotics Control Bureau (N.C.B.) Form was filled in triplicate. The case property was taken in police possession. Accused

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was arrested and his personal search memo was prepared. On

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return to the Police Station, the case property was handed-over by the Station House Officer to MHC Police Station, Brow. On the basis of Rukka Ex.PW-1/A, formal F.I.R. No.48, dated 03.06.2010, under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985, was registered at Police Station Brow, Kullu, District Kullu, H.P. Thereafter, the case property was sent through Constable Madan Lal to the State Forensic Science Laboratory, Junga, for examination. After receipt of the report of the State Forensic Science Laboratory Ex.PW-8/C and completion of other necessary formalities, Challan was presented in the Court against the appellant.

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Charge was framed against the appellant under Section 20 of the Act by the Special Judge. Appellant did not plead guilty to the charge framed against him and claimed trial.

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During trial, the prosecution examined eight witnesses to prove its case. Appellant when examined under Section 313 of the Code of Criminal Procedure, 1973, after the close of prosecution evidence, prayed that he was innocent and had been falsely involved in the case.

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Appellant did not examine any witness in his

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defence.

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Learned trial Court ordered the conviction and sentence of the appellant, as mentioned in Para-1 of the judgment. Hence, the present appeal by the appellant.

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Mr. Dalip K. Sharma, learned Counsel for the appellant, has submitted that the prosecution had failed to prove its case against the appellant. No independent witness had been joined at the time of alleged recovery. Learned counsel has further submitted that in case the statements of the officials witnesses are found to be trustworthy, then the sentence awarded to the appellant was liable to be reduced, as the quantity of the contraband recovered from the appellant was less than the commercial quantity.

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In support of his arguments, learned Counsel for the appellant has placed reliance on the decision given by Full Bench of this Court, in Ratto versus State of H.P., reported in 2003(2) Shimla Law Cases 161, wherein, it was held as

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under:-

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“41. As already noted there is hardly any ambiguity, muchless conflict between Section 2 (viia) and the notification as extracted here-inabove for determination of what would be the commercial quantity. By virtue of powers conferred under sub - section (viia) of Section 2,

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Central Government is authorised to notify as to what would be the commercial quantity. Because the “commercial quantity” on a plain reading of its definition amongst other things has to be “….greater than the quantity specified by the Central Government by notification….” Under 2001 Act notification supra was issued specifying the quantity for the purpose of section 2(viia) of the Act. A perusal of this notification indicates that quantity specified is one kilogram. Various columns of the notification extracted hereinabove have to be read in conjunction with the substantive provision of Section 2(viia) of the Act. This also puts a harmonious construction on both, notification as well as Section 2(viia). While determining the quantity under this sub-section, it has to be greater than one kg. There is hardly any doubt regarding either the words one kg. or the commercial quantity which has to be greater than, which in our considered view would always mean any quantity more than/bigger than/larger than one kg. We are further of the view that this provision, and for that matter, notification admits of no other interpretation on its reading. Thus, it cannot be said that one Kg. would be the commercial quantity for the purpose of Section 2 (viia), as added by 2001 Act.”

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Mr. Kunal Thakur, learned Deputy Advocate

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General, on the other hand, has opposed the appeal and has submitted that the prosecution had been successful in establishing its case against the appellant and the impugned judgment/order passed by the trial Court were liable to be upheld.

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PW-4 Head Constable Kartar, PW-5 Jagat Singh Negi and PW-8 Sita Ram have categorically deposed to the effect that when the bag carried by the appellant was searched, one kilogram charas in the shape of sticks and balls was recovered. The said witnesses were cross-examined on behalf of the appellant but nothing fruitful could be elicited from their cross-examination to discredit their statements. Thus, the spot witnesses had successfully withstood the test of crossexamination. No material contradictions can be noticed from the deposition of the said witnesses to render their statements doubtful.

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PW-1 Head Constable Chet Ram has deposed that on 30^th June, 2010, Head Constable Kartar Singh had delivered Rukka Ex.PW-1/A to him and on the basis of the same, formal F.I.R. Ex.PW-1/B was registered. On the same day, the case

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property sealed with seal bearing impression ‘T’, alongwith

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NCB Form in triplicate and sample seal, were deposited with him in the Malkhana and he had made the necessary entry in the Register. On 20.07.2010, he had sent the case property to Forensic Science Laboratory through Constable Kishori Lal and he had handed-over the receipt to him after depositing the same with the Forensic Science Laboratory.

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PW-2 Constable Kishori Lal has corroborated the statement of PW-1 Head Constable Chet Ram with regard to the deposit of the case property with the Forensic Science Laboratory, Junga. He has further stated that till the case property remained in his custody, he did not tamper with the same.

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Ex.PX is the report of the Forensic Science Laboratory. A perusal of the said report reveals that the sealed cloth parcel had reached the said Laboratory with seals intact and on weighment, the exhibit weighed one kilogram and after examination, it was found that the exhibit was extract of cannabis and sample of charas.

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Thus, the prosecution had been successful in proving its case against the appellant with regard to recovery of one kilogram charas from him. Appellant could not produce any

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permit or license authorizing him to keep the contraband in his

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possession. The fact that no independent witness was joined by the police party, is not always fatal to the prosecution case. However, the fact that no independent witness has been joined in this case, casts an added duty on the Court to adopt a greater degree of care while scrutinizing the testimonies of the police officials, which, if found reliable, can form the basis of conviction.

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15 In the present case, there is nothing on record to discredit the versions of the spot witnesses. Hence, the fact that no independent witness was joined by the police party at the time of recovery of alleged contraband, is not fatal to the prosecution case.

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The next question that requires consideration, is as to what should be the quantum of punishment in this case.

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A perusal of the impugned order of sentence dated 24.06.2019, reveals that the learned trial Court has taken the contraband recovered from the appellant as a commercial quantity. However, as per the decision of the Full Bench of this Court in Ratto’s case (supra) , the contraband recovered from the appellant cannot be termed as falling under commercial quantity. Rather it can be termed as non-commercial quantity,

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as it falls in between small and commercial quantity. The Full

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Bench of this Court, after discussing all the relevant provisions,

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has categorically held that one kilogram of charas cannot be said to be commercial quantity for the purpose of Section 2

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(viia) of the Act.

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The definition of term “commercial quantity” under Section 2(viia) of the Act, reads as under:-

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“2. Definitions. (i) to (vii) xxx xxx xxx

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(viia) “commercial quantity”, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette.”

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As per Section 20 of the Act, wherein the contraband recovered is lesser than commercial quantity but greater than small quantity, then the accused can be sentenced to rigorous imprisonment for a term, which may extend to ten years and with fine which may extend to one lac.

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Since in the present case, the contraband recovered from the appellant cannot be termed as falling within the definition of commercial quantity, it would be just and expedient to reduce the sentence qua imprisonment of the appellant. Accordingly, the conviction of the appellant as ordered by the trial Court under Section 20 of the Act is upheld.

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However, the sentence of the appellant awarded by the trial Court is reduced from ten years rigorous imprisonment to four years rigorous imprisonment and fine is reduced from Rs.1,00,000/- to Rs.25,000/- and in default of payment of fine, the appellant shall further undergo simple imprisonment for three months.

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The appeal stands disposed of accordingly. Pending application(s), if any, shall also stand disposed of.

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( Sabina ) Judge

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( Sushil Kukreja ) November 10, 2022 Judge (Yashwant)

Ravinder Kumar v. State of Hp

Case brief

What is this about?

What did the court decide?

Ravinder Kumar v. State of Hp

Case brief

What is this about?

What did the court decide?

What the court decided

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