1. The present criminal appeal 433/1998 has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 30.11.1996 passed by learned Addl. Sessions Judge, Kullu, District Kullu, in Session Trial No. 12 of 1996, thereby acquitting the respondent/accused for the offence under Section 20 of NDPS Act.
2. The Criminal Appeal No. 611/1996 has been preferred by convict-appellant against the same judgment dated 30.11.1996 passed by learned Addl. Sessions Judge, Kullu, District Kullu, in Session Trial No. 12 of 1996, thereby convict/appellant has been convicted for the offence under Section 14 of Foreigners Act, 1946 for not having passport at the relevant time and traveling without relevant documents in India. The convict appellant was sentenced to undergo five years rigorous imprisonment as well as to pay a fine of ` 3,000/- for the commission of offence punishable under Section 14 of the Foreigners Act and in default of payment of fine, he was further to undergo rigorous imprisonment for one year. The convict-appellant was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of `.1000/- for the commission of offence punishable under Section 419 of Indian Penal Code and in default of payment of fine, he was to undergo rigorous imprisonment for one year.
3. Prosecution case in brief is given as below. On 1.1.1996 HC Bhagi Rath along with the Constable Sant Ram and HHG Shyam Lal while on patrol duty at Manikaran at about 7.00 a.m., noticed two foreigners including the present accused Jesper Nelisen coming from the side of Amar Guest House and going towards Manikaran Bus-stand. On seeing the police party accused persons tried to escape by boarding the bus, however, on suspicion, they were apprehended and on enquiry of Investigating Officer about their passport, they refused to show the same. Thereafter accused persons were asked for their personal search as well as for the search of luggage by the Investigating Officer and on refusal of accused to give their personal search, they were produced before Superintendent of Police where also accused refused to give their search. On refusal of search, the accused were taken before Additional Chief Judicial Magistrate, Kullu and in reference to the application Ex.PW-8/A search was made and Charas was recovered in Polythene packets. Out of which 25 grams each was taken as sample and sealed in two parcels with seal T and remaining charas was kept in a gunny bag and the same was also sealed with the same seal. The recovered charas was taken into possession vide recovery memo Ex. PW-7/B in presence of Ramesh Chand and Uttam Ram, Reader and Stenographer, respectively in the court of Learned Additional Chief Judicial Magistrate, Kullu. The seal impression T was taken into a separate piece of cloth for the purpose of sample Ex. PW-8/C and after fulfilling the formalities the samples were sent to chemical examination, the accused was apprehended and after investigation the above named accused was charged for the offence under Section 20 of N.D.P.S Act as well as for the offence under Section 14 of Foreigners Act, 1946 read with section 419 of Indian Penal Code. During investigation, accused revealed his name as Thomas Jesper Nelisen.
4. In order to prove its case, prosecution examined has many as 9 prosecution witnesses, whereas, through his statement under Section 313 Cr.PC, accused denied the prosecution case and two defence witnesses were presented on behalf of accused.
5. The star witnesses for the purpose of trial are PW-5 Sant Ram, PW-7 Ramesh Chand, PW-8 J.L Chauhan, the then, ACJM, Kullu and PW-9 Bhagi Rath, the Investigation Officer.
6. PW-5 Constable Sant Ram, i.e. one of the members of the police patrolling party has stated that on 1-1-1996 he along with HC Bhagi Rath PW-9 while on patrol duty at Manikaran Bus Stand had intercepted accused on suspicion, who revealed his name as above and on search charas weighing 25 Kgs, 250 grams was recovered and other procedural formalities were completed by PW-5.
7. PW-7 Shri. Ramesh Kumar, one of the witnesses to the recovery proceedings in support of prosecution case has stated that the contraband goods/Charas was recovered and procedural formalities were carried out in his presence. In cross-examination also he reiterated his version in support of the prosecution case.
8. PW-8 Sh. J.L Chauhan, the then ACJM, Lahaul and Spiti before whom the accused had deposed his identity and on whose permission search of the accused was made and contraband goods/ charas was recovered and samples were taken. 9. PW-9 Shri Bhagi Rath, Investigating Officer, in support of prosecution case, has stated that as per procedure recovery of contraband goods were made which is supported by the official prosecution witnesses PW-5 Sant Ram and PW-7 Ramesh Kumar.
10. DW-1 Mr. Ebbe Petersen, Consulor, Danish Embassy, and New Delhi has produced the original passport of the accused Thomas Anderson Trolly, and according to him accused is a Danish National and on 1-1-1996 the visa and his passport was valid. The passport Ex. DW-1/A was stated to be valid up to 18-1- 2006 whereas Visa was allowed by the Indian Embassy at Copenhagen on 27-7-1995 for a period of 6 months.
11. DW-2 is Sham Lal, one of the members of the police patrolling party has stated that HC Bhagi Rath was informed by a person that two foreigners sitting in the bus were in possession of Charas therefore, these foreigners were alighted from the bus by HC Bhagi Rath and on demand of passport from them, some hot exchanges were stated to have taken place between HC Bhagi Rath and those foreigners and thereafter, they were brought to Kullu in a taxi.
12. On analysis of the prosecution witnesses and materials on record, it appears that the recovery of contraband goods/charas was made from the conscious and exclusive possession of the accused. However, Ld. Sessions Judge has not appreciated the prosecution case by saying that the public Analyst, Food and Drugs Laboratory at Kandaghat appointed as Chemical examiner for the whole of the State of H.P. was not the authorized Chemical examiner and therefore, the report of Kandaghat Laboratory was not an authentic report, in view of judgment of this court passed in Pawan Kumar v. State of H.P. , whereas as per the judgment of Honble Supreme Court in AIR 2004 SC 4743 (State of H.P v. Pawan Kumar) the chemical report of Kandaghat Laboratory is treated to be authentic report, the relevant observations of Honble Supreme Court in Pawan Kumar (Supra) are extracted as below: 6. Rule 2 of NDPS Rules has to be read in conjunction with Chapter III of the said Rules including Rules 17 and 22. These Rules show that when the opium is delivered by the cultivator to the District Opium Officer, if suspected of being adulterated with any foreign substance, it shall be forwarded to the Government Opium Factory. Chapter III relates to analysis of samples of lawfully cultivated and produced opium. On examination by the Chemical Examiner is found to be adulterated. There is no vision in the NDPS Act or Rules debarring chemical analysis of opium found to be in illegal possession of an accused contrary to the provisions of the Act and seized, in any other laboratory which may be authorized to analyse the sample. There is also no requirement that such opium must be examined by the Chemical examiner within the meaning of Rule 2. 7. In the present case, two notifications one dated 14 th April, 1982 and the other dated 9 th April, 1984 issued by the Government of HImachal Pradesh have been extracted in the impugned judgment. By notification dated 14 Th April, 1982 issued in the name of the Governor, Himachal Pradesh, the Public analyst, Himachal Pradesh Food and Drugs Laboratory, Kandaghat, District Solan was appointed as Chemical Examiner for the whole state of Himachal Pradesh with immediate effect in public interest. By notification dated 9 th April, 1984, the setting up of composite testing laboratory at kandaghat, District Solan, Himachal Pradesh for analyzing/testing samples taken from various departments mentioned in the notification under various Acts/Rules was ordered with immediate effect. The police department is one of the departments mentioned therein. The notification, inter alia, provides that functions of the laboratory is testing of samples, sent by various departments, police being one of it. 23. I am in respectful agreement with the view expressed by my learned and respected Brother that the opinion of Chemical Examiner Kandaghat Laboratory was not to be excluded. However, I am unable to agree with the views as regards Section 50 of the NDPS Act.
13. The above view as also been affirmed by the Supreme Court in State of H.P. vs. Jaswant Kumar, (2004) SCC 516, wherein it was observed that certificate furnished by the Testing Laboratory, Kandaghat after chemical examination of recovered article is valid in law.
14. On appreciation of materials on record and prosecution witnesses, we notice that the contraband goods was recovered from the bag and not from the personal search, therefore, the question of compliance of mandatory requirement of Section 50 of NDPS Act would not arise. So far as the offence of the accused/respondent(Convict/appellant) regarding Section 14 of Foreigners Act, 1946 is concerned, admittedly the accused was not having his passport on the relevant time with him besides that he was also not having any other traveling documents in his possession within the ambit of Para 7 of the Foreigners Order, 1948 made under Foreigners Act by the Central Government, as every foreigner who enters India on the authority of a visa issued in pursuance of the Indian Pass port Act, 1920 is required to obtain a permit from the Registration Officer having the jurisdiction either at the place at which said foreigner enters India or at the place where he presents a registration report in accordance with the registration of Foreigners Rules, 1939.
15. The learned Sessions Judge has found that there was violation of provisions contained under Section 3 of the Foreigners Act, 1946 as he was supposed to furnish the proof of his identity and to report such particulars to such authority in such manner and at such time and at such place as may be prescribed or specified, therefore, Ld. Sessions Judge has rightly held the respondent/(convict/appellant) guilty as per the provisions of Foreigners Act and as such, for his committing offence punishable under Section 14 of the Foreigners Act.
16. Mr. Jagdish Vats Advocate, for convict/appellant has further invited our attention to the Standing Instruction 1/88, which was to be complied with by the State Government while making search and recovery of contraband goods and while sending sample for chemical examination and for non compliance of such Standing Instruction 1/88 the prosecution case was stated to be doubtful in reference to the decision of Supreme Court in 2009(12)SCC 161 (Union of India v. Balmukund and others) wherein the Supreme Court has observed in paragraphs 10 and 19 as under: 10. The manner in which a sample of narcotic is required to be taken has been laid down by Standing Instruction 1/88, the relevant portion whereof reads as under: (e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. 39. There is another aspect of the matter which cannot also be lost sight of Standing instruction No.1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW-7 has taken samples of 25 grams each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law.
17. On the other hand Sh. R.K Sharma, Ld. Sr. Additional Advocate General for the state has referred and relied upon the decision of judgment dated 15-10-2009 in criminal appeal No. 77/2006 (Harjit Singh Vs State of H.P.). For convenience the relevant Para of the judgment is reproduced as below: - To establish that the recovered stuff was charas, PW-11 stated that the case property along with the samples was deposited with MHC in the malkhana and one of the two samples was sent through C. Pawan Kumar along with police docket, which also contained NCB forms and sample of seal as testified by C. Pawan Kumar on oath before the learned trial Court. The sample was deposited in the Laboratory. The report of the Chemical Analyst Ex. PW- 11/H certifies that on 21 st April, 2005 the sample was deposited in the laboratory by the said constable and the seals with the sample of seal sent separately and also with facsimile of seal on the NCB form, which were found intact and unbroken. The said report also testified that the sample tested positive as it contained 32.7% resin, which is a content of charas. We find that the link evidence is also complete from the time of recovery of the alleged offending article and taking sample of the contraband till its examination in the laboratory. Thus in these circumstances even the nonproduction of seal by PW-2 Sardari Lal, who turned hostile to the prosecution, is not fatal to the prosecution and there is overwhelming evidence to hold that the recovered stuff from the appellant is Charas. Thus the learned counsel for the appellant Sh. Vinay Thakur, confronted with the above position put his reliance on the judgment of apex Court in Mr. Gaunter Edwin Kircher v. State (AIR 1993 SC 1456) and submitted that the recovered stuff was in the shape of wicks and balls the investigating officer not spell out whether he had taken the sample from the wicks or from the balls or after mixing and making it homogenous, so as to make it a representative sample. The learned counsel further submitted when there is no such evidence on record, it cannot be presumed by any stretch of imagination that the sample so taken was of a representative character thus it can also not be said that the remaining stuff would be Charas. According to him, at the worst the appellant can be held responsible for keeping in his possession the resin contents in 50 grams sample parcel which was tested positive on its examination by the laboratory, which falls within the definition of small quantity. We have carefully examined the above submissions and have carefully gone through the judgment of apex court in Mr. Gaunter Edwin Kirchers case supra; the accused was arrested with only two pieces of charas weighing 7 gms. And 5 gms. Respectively and only one piece was sent for chemical analysis and the said piece was found to have been less than 5 gms. Considering these facts, the Supreme Court observed that from the report of chemical analyst it could not be presumed or inferred that the substance and the other piece weighing 7 gms, which was not sent for analysis also contained Charas and it was also observed that it had to be borne in mind that the act applied to certain Narcotic drugs and psychotropic substances and not to all kind of intoxicating substances and in any event, in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it would not be safe to hold that the prosecution could prove that 12 gms. Of charas was recovered from the accused. The Supreme Court thus held that the prosecution could prove positively that the charas weighing about 4.57 gms. Was recovered from the accused and the failure to send the other piece had given rise to that inference. In the case at hand, the total quantity recovered was 5 Kgs. Or say a huge quantity. The Act and the Rules do not provide for sending the entire quantity for analysis nor do say that some portion of each piece from the recovered stuff should be separated as sample. Samples are normally taken by picking up a few pieces at random. But in the present case, it is not the case of the defence that the sample taken from the stuff, recovered from the appellant, was not representative. The sampling process was not assailed in the cross-examination of any of the witnesses. In particular no suggestion was put to PW 11 Inspector Gurdial Singh, who seized the stuff and took out a sample, that the sample taken by him did not represent the recovered stuff. It is also pertinent to note even no such ground was taken in the grounds of appeal. Therefore, we are of the considered view that it is too late in the day for the appellant to come out with a plea that the sample of the recovered stuff was not representative. In Mr. Gaunter Edwin Kirchers case supra, relied upon as a precedent, there were only two pieces of charas of different weights, recovered from the appellant out of which only one piece was sent for analysis. Apparently, this could not be the representative sample. It was quite likely that other piece was not Charas, but something different as the total quantity of both the pieces was very small. Thus, the facts of the case before the Supreme Court are distinguishable from the facts of the present case.
18. Sh. R.K Sharma, Ld. Sr. Advocate General has also referred and relied upon the judgment dated 3-11-2009 of this Court passed in Criminal Appeal 242 of 2006 (Deepak Thapa vs. State of Himachal Pradesh). The relevant paragraphs are also given as below: We have also considered this aspect of the matter. In fact, in the present case, the total quantity recovered was 12.700 Kgs., which is a huge quantity. The Act and the Rules do not provide for sending of the entire quantity of the recovered stuff to the chemical examiner for its analysis nor there do any provision that some portion of each piece from the recovered stuff should be separated as sample. Samples are normally taken randomly by picking up a few pieces. It is not the case of the appellant that the sample taken from the stuff, recovered from the appellant was not representative. No such suggestion was put to PW-6 Head Constable Narain Singh or any other witness, who seized the stuff and witnessed the sampling process that the sample taken by him did not represent the recovered stuff. Therefore, we are of the considered view that it is too late in the day for the appellant to come out with the plea that the sample of the recovered stuff was not representative.
19. We are of the considered view that since sample of contraband goods were taken soon the bulk recovered from the accused and the sample was taken as per procedure prescribed, report of Kandaghat Laboratory has rightly affirmed that the sample sent for chemical examination was same Charas which was recovered by police party during search as such the submission of learned Additional Advocate General is full of force.
20. On analysis of the prosecution witnesses and materials on record Ld. Sessions Judge had rightly arrived on finding that Thomas Trolle Anderson(Jesper Nelisen) was rightly found guilty for the offence under Section 14 of Foreigners Act and also for commission of offence punishable under Section 419 of Indian Penal Code and has rightly awarded sentence in respect of these two offences as such, There is no scope of interference in the said verdict. But the finding of the learned Additional Sessions Judge so far as giving benefit of doubt for the offence punishable under Section 20 of the NDPS Act is concerned, such finding has erroneously been arrived at as the chemical report given by Kandaghat Laboratory is reliable one and the accused is to be held responsible for the offence under Section 20 of NDPS Act and on this aspect, the finding of learned Additional Sessions Judge is erroneous and incorrect, therefore, it is set aside and Thomas Trolle Anderson (Jesper Nelisen), the accused is held guilty of offence punishable under Section 20 of NDPS Act and accordingly he has to be awarded punishment for such offence.
21. In view of above analysis made, Criminal Appeal No. 611 of 1996 is devoid of merit and is accordingly dismissed and the convict/appellant is to be held guilty of offence punishable under Section 14 of Foreigners Act and Section 419 of Indian Penal Code has to suffer the sentence as awarded as per judgment dated 30-11-1996 in Sessions Trial No. 12 of 1996.
22. Since, we have affirmed the findings of Ld. Additional Sessions Judge, Kullu judgment dated 30-11-1996 passed in Sessions Trial No. 12 of 1996, by learned Additional Sessions 14 Judge in reference to Section 20 of NDPS Act and we have held accused guilty for the said offence. Therefore, on sentence, we have heard him through his counsel.
23. Keeping in view the facts and circumstances and the offence in question, while holding accused guilty for the offence under Section 20 of NDPS Act and keeping in view that 25 Kgs. 250 Gms. contraband goods was being carried by him, therefore, the accused is sentenced for the offence under Section 20(b)(ii)(c) for carrying commercial quantity of Contraband goods and as such we award sentence of 20 years and a fine of ` 1,00,000/- and in case of non-depositing the said fine, he is to further undergo sentence of one year rigorous imprisonment. The convict/appellant/ accused have to suffer the aforesaid sentence accordingly.