State of H.P. Vs. Sher Singh

- code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. this course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit......is sought to be assailed on two grounds. first, that the quantity recovered from the respondent was more than small and, therefore, he was liable to be convicted under clause (b) of section 20(ii) of the narcotic drugs and psychotropic substances act, 1985, instead of clause (a) of the said section and secondly, the sentence awarded is inadequate. the percentage of resin in the recovered quantity, according to the report of the chemical examiner, was 32.03%. the learned trial court on the basis of the percentage of resin concluded that the charas contained in the recovered stuff was only to the extent of 80.7%, which being less than 100 grams, was small quantity. in re-working the quantity, on the basis of percentage of resin content, the trial court has placed reliance upon this courts' judgments gulam rasool v. state of h.p. 2007 supp. (cur. lj (hp), ramesh lal v. state of h.r 2007 supp. cur. lj 460 (hp) and om parkash v. state of h.p. 2007 supp. cur. lj 539. all the three judgments relied upon by the trial court are based upon a division bench judgment of this court in dharam pal v. state of h.r latest hlj 2007 (hp) 827. a view similar to that taken by the division bench of this court in dharam pal's case supra, has also been taken by hon'ble supreme court in e. micheal raj v. intelligence officer narcotic control bureau (2008) 5 scc 16 wherein it has been held that the quantity of narcotic drugs or psychotropic substances is required to be worked out, not on the basis of the total weight of recovered stuff, but on the basis of the content of narcotic drug or psychotropic substance, contained in that stuff. in view of the above stated position, there is no merit in the first contention.4. as regards the second contention, the maximum punishment prescribed for the offence of possessing small quantity of charas is six months imprisonment or rs. 10,000/- fine. looking to the quantity of the charas, recovered from the respondent, as also the maximum punishment.....