State of H.P. vs Jaswant Kumar

On 3.3.1996 at about 6.45 p.m. PW8 Constable Kanhaiya Lai informed ASI Om Chand, who was officiating as Station House Officer of Police Station Banjar, that a person sitting at the rain shelter near Banjar Bus-stand had been suspected to be a dealer in "charas". The Station House Officer reduced this information to writing and sent a telex message to his immediate superior officer and he along with PW12 Om Chand and PW5 Devia Ram went to the spot where the accused was sitting. PW1 Bhup Singh and Kishori Lal also joined the police party. When they reached the bus stand the accused was sitting there covered with a blanket. He revealed his name as Jaswant Kumar and PW12 ASI Om Chand told the Appellant that he was suspected of having in possession charas and whether he would like to be examined in the presence of a gazetted officer or a Magistrate. The SHO recorded the same in writing and obtained his signatures thereon from the accused. The accused told that he would like to be searched in the presence of a Magistrate. Accordingly he was taken to PW2 Sub-Divisional Magistrate, Banjar. The accused was holding a greenish coloured polythene packet and this polythene packet was unwrapped and 750 grams of charas was found. The ASI took samples and the Appellant was taken into custody. The sample taken was sent to the Composite Testing Laboratory, Kandaghat through constable, PW4. The substance recovered from the accused was found to be a narcotic drug from the chemical examination and prosecution was launched against the accused.

On the side of the prosecution 12 witnesses were examined and the accused was convicted for the offence punishable under the NDPS Act. The accused challenged the conviction and sentence entered against him before the High Court. The appellant raised several contentions before the High Court. One of the contentions raised by the accused was that there was violation of Section 55 of the NDPS Act. According to him, the seized article was not sealed by the SHO properly and the impression of seal ''T'' produced by one Bhup Singh, PW1 does not tally with the seal ''T'' appended on the chemical report. This plea was elaborately considered by the High Court and the same was held to be unsustainable. The appellant also contended that he was falsely implicated in the case and that there was no independent witness for the recovery of the drug from him. This plea was also rejected. However, the appellant raised another contention that the article recovered from the accused was sent for chemical analysis to Testing Laboratory, Kandaghat and the same was not an authorised laboratory and therefore the certificate produced by the prosecution was not reliable. This plea was accepted by the High Court and the High Court held that the person who analysed the narcotic drug was not a chemical examiner as defined in Rule 2(c) read with Rules 17 and 22 of the NDPS Rules. The Division Bench of the High Court relied on an earlier decision tendered by the same Court in Edward Christopher v. State of H.P., (1996)1 Sim LC 422 and another decision of Paswan Kumar v. State of H.P. Criminal Appeal No.2 of 1995 (HP).

It is important to note that the very same question was considered by this Court in State Of H.P. vs Pawan Kumar 2004 7 SCC 735 (being Criminal Appeal No. 222 of 1997) and this Court held that the chemical examination carried out by the Testing Laboratory at Kandaghat is valid.

In view of the decision of this Court in Crl.A. No. 222 of 19973, the finding of the High Court is not sustainable and we hold that the certificate furnished by the Testing Laboratory at Kandaghat is valid in law and the finding of the High Court is set aside and the finding of the Sessions Judge is upheld. The accused is directed to surrender to serve out the remaining period of sentence.

The appeal is allowed accordingly.