Hukam Singh vs State of Himachal Pradesh

Surinder Singh, Judge

The challenge in these appeals is by the accused persons to their conviction and sentence passed by the learned trial Court in Sessions Trial No. 3 of 2007, decided on 31.3.2011 u/s 20 read with Section 29 of Narcotic Drugs and Psychotropic Substances Act, 1985, in short "the Act", for allegedly keeping 900 grams of "Charas" in their Dhaba whereby each of them were sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 30,000/- each, with the default clause. Since both the appeals are arising from the same judgment, hence taken together for its disposal. In short, the prosecution case as emerges from the prosecution evidence can be stated thus. On 22nd April, 2007, PW-15 S.I. Bhoop Singh alongwith the police party consisting of PW-14 ASI Surender Singh and PW-11 Suresh Kumar were on patrolling and detection of crimes near Kandraur Chowk at about 1.30 p.m., where PW-15 aforesaid received a secret information that the accused persons who were running a Dhaba near Kandraur bridge, were dealing in "Charas". On finding this information authenticated, the information was taken down and sent through PW-8 Constable Bal Krishan to Dy. S.P. Bilaspur as per the provisions of Section 42(2) of the Act.

(ii) A raiding party was constituted by including Pradhan, Jundu Ram and PW-1 Hira Lal, Up-pradhan of Gram Panchayat, Kandraur as independent witnesses. Thereafter, police party raided the Dhaba, where accused persons were sitting besides the counter. They were informed in writing vide Ext. PW-15/C about the raid and suspicion. After obtaining consent for the personal search, the raiding party searched the accused persons, but no incriminating articles were found. A memo Ext. PW-1/A was prepared in the presence of PW-5 Sagar Chand and Sunil kumar, who had also arrived at the spot.

(iii) Thereafter, the police carried out the search of the Dhaba in the presence of the witnesses. During search, they recovered 900 grams of stuff from the upper drawer of the counter in the shape of wicks. It was smelling like "Charas". A memo of identification Ext. PW-1/B was prepared. After weighting, two samples of 25 grams each were separated for analysis. Each of the packets were sealed with seal impression "A" and the remaining bulk was also sealed with the same seal. The seal after use was handed over to PW-1, Hira Lal after taking its impression on a piece of cloth Ext. PW-1/C, which was signed by the witnesses.

(iv) PW-15, S.I./SHO also filled in the relevant columns of the NCB forms in triplicate. The sample parcels were marked as Mark-I, II and bulk as Mark-III. The case property was taken into possession vide memo Ext. 1/D which was signed by the independent witnesses aforesaid and Head Constable Surender Kumar.

(v) Rukka Ext. PW-15/A was prepared and sent for registration of the case through Constable Surender Kumar. Site Plan Ext. PW-15/B was also prepared. The accused persons were arrested and the grounds of arrest were informed to each of them.

(vi) On reaching the Police Station, the case property was handed over by PW-15 aforesaid to PW-10 Inspector, Madan Lal alongwith the NCB forms for the purpose of resealing. After checking of the parcels and the seals thereon, he filled in the relevant columns of the NCB forms and appended his seal "H" on each of the parcels and the facsimile thereof was also taken on the NCB forms. He also appended his signatures thereon and a certificate Ext. PW-10/C was also executed with respect to the resealing of the case property. The case property alongwith the NCB forms was handed over to PW-4 MHC Suresh Kumar for its deposit in the Malkhana. Its entry was made in the relevant register, the abstract whereof is Ext. PW-4/A.

(vii) On 24.4.2007, one sample parcel Mark-I alongwith NCB forms in triplicate, sample of seals, a copy of the FIR, seizure memo and docket were handed over to PW-7 HHC Vijay Kumar. He took the case property for analysis to FSL Junga vide R.C. Ext. PW. 4/B. On its deposit, he took its receipt on the reverse of the R.C. and handed over it back to MHC Suresh Kumar. The special report was sent by the Investigating Officer to the official superior within the statutory period.

(viii) On examination of the sample parcel, the Chemical Examiner vide report Ext. PW-15/D opined that the sample was of "Charas".

(ix) During the investigation, police also recorded the statement of PW-6, Ram Kali, owner of the Dhaba, Ext. P.W. 6/B, purported to be a certificate issued by her, that it was leased to the accused persons.

On completing the investigation, challan was presented against the accused persons for the offences aforesaid. They were accordingly charge-sheeted, to which they pleaded not guilty and claimed trial.

To prove its case, the prosecution examined its witnesses and the accused persons were also examined u/s 313 of the Code of Criminal Procedure. They did not lead any specific defence in their statements except denial, but the stand taken by them during the cross-examination of the prosecution witnesses was that neither they were in possession of the Dhaba nor alleged recovered stuff. Further that Hukam Chand was the driver with accused Surjit Kumar, which he also stated in his statement u/s 313 of the Code of Criminal Procedure.

During the trial, PW-5 Sagar Chand and PW-6 Ram Kali did not support the prosecution case, as such, they were declared hostile.

The learned trial Court disbelieved the defence taken by the accused persons, however, relying upon the statement of PW-1 coupled with the statements of official witnesses convicted and sentenced each of them. Hence, the present appeal.

Shri Anup Chitkara, learned Counsel for the appellant-accused persons forcefully argued that neither there is any evidence connecting the accused persons with the stuff recovered nor they were in exclusive and conscious possession of the Dhaba in question. He also ventilated that it has come in the evidence that the Dhaba was leased by PW-6 Ram Kali to Gita Ram and further that there are material contradictions in the statements of the prosecution witnesses. He also referred to the statement of the Investigating Officer as also PW-14 ASI Surender Singh and PW-1 Hira Lal, which contradict with respect to the fact that the Investigating Officer has stated that there was no one present in the Dhaba when they reached there, whereas PW-11 Constable Suresh Kumar stated that there were about 2/3 persons present at the time of the arrival of the raiding party inside the Dhaba. It is also pointed out that the prosecution has made its endeavour to prove that the seal after use was handed over to PW-1 Hira Lal, but PW-1 Hira Lal stated that after some time it was taken back, which causes a doubt and the possibility of tampering with case property, cannot be ruled out, more specifically in view of the cutting in the NCB forms as admitted by PW-7 HHC Vijay Kumar.

Mr. R.P. Singh, learned Assistant Advocate General while supporting the judgment of conviction and sentence vehemently argued that the contradictions which are pointed out above, are minor in nature and do not go to the root of the case. It is also pointed out that the statement of PW-1 Hira Lal is worth inspiring confidence and nothing material could be extracted there from. He happens to be Up-Pradhan of the Panchayat of the accused. No malice was attributed to him. He categorically stated about the presence of the accused persons in the Dhaba and further that the statements of the official witnesses are worth inspiring confidence, even then nothing has been suggested which could impel the Court to discredit their versions. Further, he also pointed out that certificate Ext. PW 6/A was given by Ram Kali which is sufficient to connect the accused persons with the Dhaba itself where they were found working. The seal which was alleged to have been taken back, is of no consequence, when the case property was resealed by Inspector/SHO PW-10 Mandan Lal and immediately thereafter it was deposited with MHC, who made its entry in the Malkhana register. Therefore, the link evidence is complete and the judgment of conviction and sentence passed by the learned trial Court cannot be faulted with.

I have given my thoughtful consideration to the rival contentions of the parties and carefully and cautiously scanned the evidence of the prosecution. On the critical examination, I found that the police had raided the Dhaba on 22.4.2007 and found the accused persons present in the Dhaba itself. Now the question is that where the accused persons could be apprehended with the stuff recovered. For that, two things are required to be examined. Merely, that the accused persons happen to be present in the Dhaba, will not connect them with the alleged offence. For that, we shall have to scrutinize the statement of PW-6 Ram Kali. In her statement, she disowned the certificate Ext. PW 6/A and categorically stated that though after the death of her husband Krishnu, she inherited this property and is thus its owner and stated that the Dhaba was given on lease to Gita Ram, who was running it. There is a constant suggestion to the other witnesses given in the cross-examination that at the relevant time, Gita Ram was running the Dhaba. Either they have denied or expressed their ignorance, but more specifically PW-1 Hira Lal stated that after the death of Krishnu, the Dhaba was inherited by his son Sanjeev Kumar and it was being looked after by him. Further it has come in the cross-examination of PW-11, Constable Suresh Kumar that when the police had raided the premises, 2/3 persons were there who made the escape from the scene. It has not come anywhere as to who were those persons, whether they were sons of Krishnu or Gita Ram or servants working in the Dhaba. Further, on the certificate Ext. PW 6/A which was taken by the police on 27.4.2007 from PW 6 Ram Kali, no reliance can be put as it is hit by Section 162 of the Code of Criminal Procedure.

In Ramprasad Vs. State of Maharashtra, , apex Court observed that Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before "any authority legally competent to investigate the fact" but its use is limited to corroboration of the testimony of such witness. Though a police officer is legally competent to investigate, any statement made to him during such investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. In the instant case, the statement was taken down by PW-15 S.I. Bhoop Singh after the commencement of the investigation and it was signed by PW-6 Ram Kali, but it has been styled as a certificate. The police officer was not authorized to take such type of certificate in any form which is signed by a witness and if taken, cannot be used against accused persons as it is hit by Section 162 of the Code of Criminal Procedure. Otherwise also, the set of writing/certificate is disputed by PW-6, Ram Kali herself, therefore, this document cannot be used to connect the accused persons with the Dhaba in question. Even PW-5 Sagar Chand, who was running a Dhaba near the Dhaba of the accused persons, admitted that accused Hukam Singh was employed as a driver by Sanjeev Kumar. He further stated that he did not know as to whether the accused persons had been jointly running the Dhaba.

Supreme Court in Ram Singh versus Central Bureau of Narcotics, (2011) 3 SCC (Cri) 181, in paragraph 24 also observed as under:

It is trite that to hold a person guilty, possession has to be conscious. Control over the goods is one of the tests to ascertain conscious possession so also the title. Once an article is found in possession of an accused it could be presumed that he was in conscious possession. Possession is a polymorphous term which carries different meaning in different context and circumstances and, therefore, it is difficult to lay down a completely logical and precise definition uniformly applicable to all situations with reference to all the statues. A servant of a hotel, in our opinion, cannot be said to be in possession of contraband belong to his master unless it is proved that it was left in his custody over which he had absolute control.

Further the prosecution has not brought forward any illicit or illegal matter or for that matter any licence issued by the licensing authority or the bill of the electric meter to connect the accused persons with the said Dhaba. The stand of the prosecution is only that it was leased out to the accused persons which stands not established. If the recovery was made from the Dhaba which was in possession of somebody else and the accused persons found sitting on the counter at the time of raid, then they cannot be made liable for the alleged recovery.

A bare perusal of the evidence above stated, would reveal that the ownership and the possession of the Dhaba in question at the place of recovery is almost uncertain. Thus, the case of the prosecution also sans exclusive possession of the accused persons.

Further, the case of the prosecution becomes a suspect on the ground that the seal after its use was handed over to PW-1 Hira Lal, then why it was taken back from him immediately thereafter. No explanation has been offered by the official witnesses to this effect. Thus, the possibility of tampering with the sample parcel or the case property cannot be ruled out coupled with the fact that PW-7 HHC Vijay Kumar is stated to have tampered column No. 5 of the NCB form by making overwriting showing one sample instead of two samples on the seal in the laboratory. What was the purpose and intention behind it, is not spelt out.

Also I find that the report of the Chemical Examiner Ext. PW 15/G does not conclude that the stuff examined falls within the definition of "Charas" in view of the judgment of the Division Bench of this Court rendered in Sunil versus State of H.P. and other connected matters, reported in Latest HLJ 2010 (HP) 207. The result of the examination of contraband in report Ext. PW 15/G reads as under:

Various scientific tests such as identification, chemical and chromatographic were carried out in the Laboratory with the exhibit Mar-I under reference. The tests performed above indicated cannabinols including the presence of tetrahydrocannabinol in the sample. The microscopic examination indicated the presence of cystolithic hair in the sample. The resin were found to be 34.55% W/W in exhibit Mark-I. The result thus obtained is given below.

In the opinion of the undersigned based upon the tests performed above.

The exhibit Mark-I is the sample of CHARAS.

This report is verbatim to the report which was examined by the Division Bench of this Court, of which I was also one of the member. In Sunil Kumar''s case, supra, we on examination of the reports of analysis came to the conclusion that the stuff which was opined to be "Charas", on account of presence of cannabinol, including tetrahydrocannabinol and cystolithic hair did not fall within the definition of "Charas." The relevant paras thereof can be extracted usefully as under:

"Charas" is one of the three forms of cannabis (hemp), as defined in Section 2(iii) of the Act, which reads as follows:

(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish.

According to the definition of "Charas", as given in Section 2(iii)(a) of the Act, the stuff to fall in the category of Charas, should be resin of cannabis plant only or the concentrated preparation and resin known as hashish oil or liquid hashish. In other words, the definition does not include other parts, like flowering and fruiting tops, leaves or stem, of cannabis plant.

Flowering and fruiting tops of cannabis plant have been defined to mean ganja, per Section 2(iii)(b) of the Act and when seeds and leaves of the plant accompany such flowering or fruiting tops, they also form part of ganja.

When Charas, i.e. resin and/or ganja, i.e. flowering or fruiting tops of the cannabis plant, are mixed, with or without any neutral material, they fall in the category of Mixture of cannabis (hemp), as defined in Section 2(iii)(c) of the Act.

The report, in the instant case, does not show that the resin was from a cannabis plant. Certainly, the presence of tetrahydrocannabinol and cystolithic hair in the stuff analyzed also do not correspond to the definition of "Charas." Thus, the result of the examination in the instant case does not bring the stuff in any case recovered from the accused persons, within the statutory definition of "Charas" under the Act.

Therefore, for the aforesaid reasons, the judgment of conviction and sentence is unsustainable, hence set aside. The accused persons are undergoing the sentence. They be released forthwith, if not required in any other case. Registry to take necessary steps.