State of H.P. vs Kamlesh Kumar @ John

Surjit Singh, J.—This appeal by the State is directed against the judgment, dated 19.4.2000, of learned Sessions Judge, whereby respondent Kamlesh Kumar, who was tried for an offence, u/s 20 of the Narcotic Drugs and Psychotropic Substance Act, for allegedly being in possession of 430 grams of Charas, has been acquitted.

Case of the prosecution is that on 7.2.1999 at 1 p.m., when PW-7 SI Shakti Chand was present in the area of Mcleodganj (Dharamshala), he received information that respondent indulged in extraction and sale of illicit liquor and that in case search was conducted at his residential place in the area of Mcleodganj immediately, huge quantity of liquor could be recovered.

That information was reduced into writing. A written report of the matter was sent to Police Station. The same is Ext. PF. On the basis of the said report, case was formally registered vide FIR, copy Ext. PL. Thereafter residential premises of the respondent were searched in the presence of PW-1 Madan Singh, a Municipal Councilor, and PW-5 Rajinder singh, a resident of that locality. During the course of search from a room in the upper storey of the house of respondent, Charas hidden under gunny bags, containing charcoal, was recovered which, on weighment, was found to be 435 grams. Two samples, each weighing 10 grams, were separated. The samples and the bulk Charas were made into three separate parcels, which were sealed with a seal that produced impression of English letter ''J''. Search and seizure memo. was prepared, which is Ext. PB. All the three parcels along with specimen of impressions of the seal, taken on a piece of cloth, were deposited with SHO, Police Station Sadar, Dharamsala, namely PW-8 Kishan Chand, who affixed his own seal that produced impression of English letter ''K'', on the three parcels and also filled in FSL form for sending one of the samples to the Chemical Laboratory. A sample parcel was sent to Chemical Laboratory and as per report Ext. PM of Chemical Examiner, sample was of Charas as it contained 27.6% resin.

Learned trial Court charged the respondent with an offence, u/s 20 of the Narcotic Drugs and Psychotropic Substances Act and on his pleading not guilty proceeded to try him.

Prosecution examined eight witnesses besides proving relevant documents, including report Ext. PM of the Chemical Examiner. Respondent denied recovery of Charas from his house in the course of search.

Independent witnesses, namely PW-1 Madan Singh and PW-5 Rajinder Singh did not support prosecution version. Only Shakti Chand, SI, who conducted the search, testified about the recovery of Charas. Learned trial Court disbelieved the prosecution version. It observed that it was not safe to convict respondent on the sole testimony of the Police Officer, who conducted the search. Learned trial Court also observed that there was non-compliance of mandatory provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act. Consequently, respondent was acquitted.

We have heard the learned Senior Additional Advocate General as also learned Counsel, representing the respondent, and gone through the record.

View taken by the learned trial Court that respondent is entitled to acquittal, on account of non-compliance of mandatory provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, is perverse. Section 50 of the Act, as is clear from its bare reading, applies in a case of personal search. It is not applicable where search is of a house or a closed place. So, acquittal of the respondent, on the ground that mandatory provision of Section 50 of the Act had not been complied with, cannot be sustained.

Trial Court''s view that it is not safe to base conviction on the sole testimony of the Police Officer, conducting search, is also contrary to law and rule of prudence. It is not the quantity of evidence, but the quality which matters. Investigating Officer, conducting search, is as good a witness as any other person. In case the so called independent witnesses are won over by an accused or they make false statements for any other reason, Police Officer''s statement can always be relied upon, provided it inspires confidence.

In the present case search and seizure memo. Ext. PB is signed by independent witnesses. They were duly confronted with the same. Witnesses are literate. One of them is a Municipal Councilor. They could offer no explanation for having signed memo. Ext. PB in which it is very specifically mentioned that on search of the upper storey of the house of respondent, Charas weighing 430 grams was recovered. Thus, the witnesses are contradicted by the search and seizure memo., bearing their signatures as also their statements, u/s 161 Cr. P.C., with which they were confronted.

Testimony of PW-7 S.I. Shakti Chand, who conducted the search, suffers from no flaw, discrepancy or inconsistency. He has very categorically stated that search was conducted in the presence of above named two independent witnesses and in the course of search, Charas was recovered from underneath the gunny bags, containing charcoal. No suggestion was put to this witness that he had any enmity with the respondent or had any axe to grind, by falsely implicating him. Testimony of PW-7 SI Shakti Chand is corroborated by the earliest recorded version, which he submitted in the form of Special Report Ext. PE to his immediate superior officer, i.e. SHO, Police Station, Dharamshala, on the very day of the search, i.e. 7.2.1999 at 6.05 p.m. and the SHO on the next following day forwarded that report to the Additional Superintendent of Police, Kangra, in compliance with the provision of Section 57 of the Narcotic Drugs and Psychotropic Substances Act. Therefore, we see no reason to disbelieve prosecution version. Consequently, it is held that on search of the house of respondent Charas was recovered.

According to the report of Chemical Examiner, sample contained 27.6% resin of Cannabis Plant. That means, Charas content in the recovered stuff was about 120 grams or say a little more than the small quantity. So, we convict the respondent of offence, u/s 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act.

Admittedly, respondent remained in custody upto 12.11.1999, on which date an order for his release on bail had been passed. There is no record, indicating if he was released on bail, after the passing of the aforesaid order dated 12.11.1999. Rather, Zimni orders recorded by the trial Court subsequent to that date and till the final decision of the case, indicate that he remained in custody. In any case, it can safely be held that respondent had been in custody upto 12.11.1999 or say for a little more than nine months, during the trial of the case.

Looking to the quantity of resin in the stuff recovered from the respondent and the fact that it is the resin alone which is Charas, as held by a Division Bench of this Court in Dharam Pal and Vidya Sagar Vs. State of H.P., we are of the considered view that ends of justice would be met in case the respondent is awarded sentence of substantive imprisonment equivalent to the period already spent by him in detention during trial and is further ordered to pay a sum of Rs. 10,000/- as fine; in default of payment of fine to undergo imprisonment for a period of three months. We order accordingly. In case fine is not deposited within two months, respondent shall be taken into custody by the trial Court and sent to Jail to serve out the sentence of three months imprisonment awarded in case of default in payment of fine.

Appeal stands disposed of.