Agya Chand vs State Of H.P

FIR NUMBER,"120/2015 dated 27.12.2015, Police Station Banjar,

District Kullu under Section 20 of NDPS Act.

TRIAL COURT CASE NO,"Sessions Trial No.25 of 2016, decided on 11.10.2017, by

learned Special Judge-II, Kullu.

As per the statement of investigator PW-5 Chaman Lal and another member of the police party C. Sonu Ram PW-5, the police officials had gone",

in a police vehicle, which is reflected in the Daily Diary register Ex.PW-1/D. Although the prosecutor did not examine C. Narinder Singh, who was",

the vehicle's driver, to prove its logbook, a perusal of the photographs described above shows that the paperwork is done in the night-time in the cabin",

of the police vehicle. Thus, the non-examination of the driver C. Narinder Singh is also insignificant and does not dent the prosecution's case till this",

stage.,

As per the testimony of investigator PW-6 ASI Chaman Lal, during the intervening night of 26th and 27th December 2015, when the police",

officials were present at Phagypul, then at quarter past midnight, they noticed one person walking from Thatibir side. The said person was carrying a",

bag in his hand. The investigator alighted from the vehicle, inquired about his name, and asked why he was walking at such odd hours of the night. The",

said person disclosed his name as Agya Chand, the appellant herein. For walking at such odd hours, he explained that one of his relatives was",

admitted to Banjar Hospital, and he would see him. On inquiry from the bag, he started making lame excuses. PW-5 corroborated the version of the",

investigator. The only contradiction in his testimony is that in the initial reports like seizure memo Ex.PW-5/B, rukka PW-5/C, FIR Ex.PW-6/A and",

special report Ex. PW-4/A what is mentioned is that when the police officials had inquired from the Agya Chand about the bag's contents, he had said",

that he was carrying food for his relative, who was admitted to the Hospital. The incident occurred on 27th December 2015, whereas the witnesses",

were examined on 8th May 2017, i.e., after around one and a half. Thus, this discrepancy is not that significant to create a dent in the prosecution's",

entire case and has to be ignored, having occurred due to the passage of time. There is a tendency amongst human beings to forget with a lapse of",

time.,

On opening the bag, it contained a plastic box, which further contained a polythene bag with black colored substance. The police officials took out",

the said bag, and on opening, it was emitting the smell of Charas. Based on experience, the police officer’s prima facie found it to be Charas. This",

version of the investigator PW-6 is fully corroborated by the witnesses PW-5 C. Sonu Ram and the documents prepared at the spot. The climatic,

conditions of the Kullu district in Himachal Pradesh are very conducive to the wild growth of cannabis plants. It leads to a significant amount of,

extraction of Charas. Thus usually, investigators and police officials would have come across at one or another point in time, the exposer to Charas.",

Thus, during the course of their duty, when the investigator prima facie concluded the contents to be of Charas, it is not unusual and rather justiciable.",

Furthermore, as per the report of the Laboratory Ex.PW-6/E, on testing, the contraband was found to be Charas.",

Thus, so far, the prosecution has been able to prove that they had stumbled upon the charas perchance and without any prior information. What",

has to be seen is that after the recovery of charas, whether the police officials intentionally did not opt to associate independent witnesses or it was",

their compulsion not to associate. A reference to the earliest document, i.e., seizure memo Ex.PW-5/B, based on which the other documents rukka,",

FIR, and Special report were also made, states explicitly that due to the sudden recovery of charas and spot being isolated, without any human",

movement, and the time of occurrence being midnight, the police officials prima facie believed that there was no possibility of finding any local",

witness. Thus, they proceeded to conduct the further proceedings on their own.",

In the testimony before the Court, the investigator PW-6 and the other spot witness PW-5 took a similar stand. In the cross-examination of PW-5,",

he admitted a house at a distance of 50 meters from the spot. He clarified that only one house was visible, and he showed ignorance about other",

houses of persons, namely Amar Singh, Gurbachan, and Atma Ram. He admitted several houses at a place known as Mangalore at 100-150 meters",

from Phagupul towards Aut side. There was also a tiny bazaar known as Mangalore Bazaar. He has also admitted that near village Bihali towards,

Thatibir and Dandhar side and there were several houses in that village. PW-6, investigator ASI Chaman Lal in his cross-examination, admitted that",

houses of Gurbachan, Atma Ram, and Amar Singh were at some distance. He explained that it was night and houses were not visible. He also stated",

that Mangalore Bazaar was 500 meters from Phagupul, and there is another village Bihar near Phagupul.",

The issue before this Court is that when there are villages in the vicinity, then whether non-association of witnesses from such villages creates a",

dent in the prosecution story or not? The occurrence was in the Kullu District of Himachal Pradesh at the end of December, a cold zone. The",

Investigator specifically stated that the main road leads from Aut to Jalori, but due to snow in Jalori Jot, the movement of vehicles had stopped. In the",

winter, the Sun sets very early, and in December, around half-past five. During winters, people sleep a bit early. People living in remote villages tend",

to remain inside their houses during cold winters and would be very reluctant to come out.,

The case set up by the defence is that on that particular day, there was a function of the Devta, and villagers were present. As per the statement",

of DW-1 and DW-2, they did not notice any activity at Phagupul at that point in time. In winters during midnight in the harsh and cold winters, people",

would not keep peeping outside from the windows of their room. Instead, they close the windows and doors and stayed inside to maintain the",

temperature inside their houses. Even otherwise frequent coming out of house lead to exposer to cold, which people avoid. Thus, simply because these",

two witnesses did not notice any movement does not mean that the police party was not present at the spot. A perusal of the statements of PW-5 and,

PW-6, not even a single suggestion has been put about any enmity or any reasons for false implication. Thus, given the material omission during cross-",

examination above, the accused could not probabilize his defence.",

After the search, seizure and preparation of documents at the spot, the investigator PW-6 deposited the case property with PW-7 SHO, who had",

re-sealed the same with seal ‘T.’ A perusal of the SFSL report reveals that when they received the case property, it was duly sealed with a",

similar number of seal impression with which the investigator and SHO sealed it. A perusal of NCB Forms Ex.PW-1/A, extract of Malkhana Register",

Ex.PW-1/B, Road Certificate Ex.PW-1/C and extract of Daily Diary Ex.PW-1/F, coupled with the statement of witnesses of link evidence, namely",

PW-1 Alam Gir, PW-2 HC Diwan Chand, and PW-7 SHO Inspector Jitender Kumar, proves the link evidence.",

Given the report, Ex.PW-6/E of the Forensic Science Laboratory tested the contraband recovered from accused Agya Chand as Charas weighing",

765.4 grams. Thus, in the entirety of facts and circumstances peculiar to this case, the prosecution has proved its case beyond reasonable doubts.",

I have gone through the judgment passed by the learned trial Court, which is well reasoned and calls for no interference except for the sentencing",

part. Learned Sessions Judge sentenced the accused to undergo rigorous imprisonment for seven years and pay a fine of Rs. 70,000/- and in default of",

payment of fine, further imprisonment for one year.",

The maximum sentence for possessing an intermediate quantity of drugs and substances prohibited under the NDPS Act can extend up to ten,

years of imprisonment. Vide the provisions contained in S. 31, 31-A, and 32 of the NDPS Act, the legislature has already placed special provisions for",

enhanced or higher sentences. While prescribing the upper limit of ten years, the legislature also considered those involved in various crimes other than",

the NDPS Act. Thus, the uppermost limit would be when no other mitigating circumstances are available to impose a lesser sentence.",

A perusal of the order dated 11.10.2017, passed on the quantum of the sentence, reveals that learned Sessions Judge believed that no leniency",

could be shown in punishment because the offense involves the health of the society.,

Thus, the learned trial Court did not consider the other social factors regarding his age and that the accused was the first offender. A perusal of",

the 173(2) reports does not level any allegations of any criminal history. The accused was arrested on 27th December 2015, and he was released on",

bail on 19.1.2016, i.e., initially, he remained in jail for around 24 days.",

During the trial, he was sentenced on 11th October 2017, and on that day, he was present in the Court and was taken into custody. Thus, he has",

already spent a further period of more than three years and eleven months. Overall, the convict has already undergone more than three years of",

imprisonment. The total substance recovered from the accused was 765.4 grams of charas. Thus, given the absence of criminal history, the accused is",

entitled to a reduction of sentence. Accordingly, the substantive sentence and the sentence in default of non-deposit of fine is reduced to already",

undergone. Registry to prepare release warrants and the accused shall be released, according to Section 437-A CrPC, provided he is not required in",

any other case.,

Given above, the judgment of conviction passed by learned trial Court is modified in the aforesaid terms. Pending application(s), if any, shall also",

stand disposed of.,