PREM KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) APPELLANT has challenged his conviction and sentence passed by the learned trial Court, for the offence punishable under Section 20(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short 'the Act ', for allegedly keeping in his possession 568 grams of Charas in the total recovered stuff of 2 Kgs, which is less than "commercial quantity" and more than the "small quantity", thus, he was sentenced to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.40,000/ -, in default of payment of fine, he was also ordered to further undergo imprisonment for one year. The period pre -trial and during the trial spent by him is ordered to be set off against the substantive sentence, as per provisions of Section 428 of the Code of Criminal Procedure.

(2.) IN short, the prosecution story, as emerges from the evidence on record, can be stated thus. On 24th October, 2008, police party headed by PW8 ASI, the then HC Hans Raj was on patrolling duty in the area of "Baggi -Pool" falling under the jurisdiction of Police Station Nirmand. They noticed the appellant, hereinafter referred to as "the accused" coming from the opposite side with a bag hung on his right shoulder. On seeing the police party, he had tried to escape, police got suspicion and apprehended him. He was given an option for his personal search in writing Ext.PW1/A to be searched before the Gazetted Officer or a Magistrate, but he rendered himself to be searched by the policy party, but nothing incrimination was found on his personal search. To this effect, a memo Ext.PW1/B was prepared. Thereafter PW8 HC Hans Raj conducted the search of the bag of the accused and recovered 2 Kgs stuff, which was in the shape of small sticks and balls. (ii) Out of the recovered stuff, he drew two samples of 25 grams each and sealed with seal producing the impression of English letter "H". The remaining bulk was also sealed with the same seal. Its impression was taken on a piece of cloth Ext.PW1/D. NCB forms in triplicate were filled in on the spot and the facsimile of the seal used was also taken on the said forms against the relevant column and seal after its use was handed over to PW7 C. Nanak Chand. The case property was taken into possession vide seizure memo Ext.PW1/C in the presence of the official witnesses PW1 C. Rohit Verma and PW7 C. Nanak Chand. (iii) Ruqa Ext.PW8/B was sent through PW2 C. Bal Mukand, which culminated into FIR Ext.PW3/A. (iv) The accused was arrested and the grounds of arrest were informed to him vide memo Ext.PW1/E. (v) Case property was produced before PW3 HC Lal Chand, who was officiating as SHO. He resealed the case property with seal impression "T". Its facsimile was taken on the NCB forms and on the piece of cloth. Thereafter the case property was deposited in the Malkhana alongwith sample of seals. Its entry was made in the relevant register. Photocopy of the Malkhana register is Ext.PW3/C. (vi) Special Report Ext.PW4/A was sent to the Dy. Superintendent of Police within the statutory period. (vii) On 26.10.2008, one sample parcel was sent through PW1 C. Rohit Verma vide R.C. No.53/2008 for its examination to FSL Junga. On examination, the sample sent tested positive for Charas having 29.18% weight -in -weight resin of Cannabis plant. Report of the Public Analyst is Ext.PW6/A. (viii) During the pendency of trial, on 25.3.2010, remaining bulk alongwith second sample parcel were also sent for examination to FSL Junga, through PW7 C. Nanak Chand after obtaining the orders of the learned Special Judge on the application moved under Section 311 of the Code of Criminal Procedure. He took it vide R.C. No.30/2010 Ext.PW7/A, which was delivered by him in the Laboratory. The report is Ext.PW3/F. It also tested positive for Charas. The resin contents of the Cannabis plant were found to be 28.39% in the bulk and 29.86% weight -in -weight in the second sample parcel, thus supplementary challan was presented.

(3.) TO prove its case, prosecution examined its witnesses. Accused was also examined under Section 313 of the Code of Criminal Procedure. From the trend of the cross -examination as also his own statement as aforesaid, the stand taken up by the accused was that he was traveling in the bus boarded for Shimla for his treatment. He was alighted from the bus by the police and a case was fabricated against him. When called upon to enter into his defence, he did not lead any evidence in defence. At the end of trial, learned trial Court convicted and sentenced him as aforesaid.