SURENDER KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THIS appeal by the accused is directed against the judgment dated 15.5.2007, passed by the learned Additional Sessions Judge-II (Special Judge), Kangra at Dharmshala in Sessions Case No. 19-N-VII/2003, whereby he convicted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act') and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. One lakh and in default of payment of fine to undergo further imprisonment for two years.

(2.) BRIEFLY stated, the facts of the case are that on 6.12.2002 at about 4.50 a.m. a police party headed by PW-8 ASI Geeta Parkash was on patrolling duty near Jassaur Chowk. They saw a person coming on foot from the HRTC Workshop side towards the main road. On seeing the police party, this person stopped and started running away from the police towards the HRTC Workshop. This behaviour of his aroused the suspicion of the police officials who apprehended the said person. The said person on enquiry disclosed his name to be Surinder Kumar son of Sain Dass (accused). He was carrying one polythene carry bag and when questioned about the contents of the bag, he could not give any satisfactory reply. When this carry bag was searched some stuff was found inside this, which on smelling appears to be charas. On weighment the charas was found to weigh 250 gms out of which two samples 20 gms each were taken. The two samples and the remaining bulk charas were put into three separate parcels and all the three parcels were sealed with seal bearing impression "M". The case property was seized at the spot itself. Ruqua Ext. PW-8/B was sent to the police station, on the basis of which FIR Ext. PW-7/A was registered. The accused was arrested. Other codal formalities were completed at the spot and thereafter the case property was taken to the police station where it was resealed. Both the samples were sent to the Chemical Examiner at Kandaghat. He examined the same and vide his report Ext. PW-8/H opined that the samples contain charas and the resin content of one sample was 33.35% and of the second sample was 37.81%.

(3.) MR . Yoginder Paul, Advocate, then contended that keeping in view the judgment passed by a Division Bench of this Court in Dharam Pal v. State of H.P. 2007(2) Shim. LC 19 only the resin content can be treated to be the offending material and whichever of two percentages is taken into consideration the resin content is only 70 grams and definitely less than 100 grams. This submission is correct and bound to be accepted, therefore, the offence would be one under Section 20 (b)(ii)(A). The accused has already spent more than a year behind bars though the maximum sentence prescribed for this offence is only six months. Therefore, we are of the considered opinion that the sentence already undergone is more than sufficient to meet the ends of justice.