Deen Mohd. and anr. Vs. State of H.P. - Court Judgment

SooperKanoon Citationsooperkanoon.com/890368
SubjectNarcotics;Criminal
CourtHimachal Pradesh High Court
Decided OnMay-22-2007
Judge Surjit Singh and; Sanjay Karol, JJ.
Reported in2007(2)ShimLC130
AppellantDeen Mohd. and anr.
RespondentState of H.P.
Cases Referred(Dharam Pal v. State of Himachal Pradesh
Excerpt:
- surjit singh, j.1. heard and gone through the record.2. appellants are aggrieved by the judgment of the special judge, whereby they have been convicted of and sentenced for an offence under section 20(b) of the narcotic drugs and psychotropic substances act. they have been visited with the punishment of ten years' rigorous imprisonment and fine of rs. 1,00,000 each, in default of payment of fine simple imprisonment for a further period of six months each.3. according to the prosecution version, a maruti van was intercepted at a place called vindraban forest barrier in mandi district, on 15.3.2002, by a police party. three persons, including the appellants, were present in the van. one of the appellants was in driver's seat, while the other one was sitting beside him on the front seat. the third person was occupying the rear seat. a polythene bag was lying behind the driver's seat. that bag contained. charas, which on weighment was found to be two kilograms. two samples, each weighing 25 grams, were separated. one sample was sent to the chemical examiner, who reported that the sample contained resin to the extent of 24.07 per cent. he concluded his report with the remarks that the sample contained consents of charas.4. submissions made on behalf of the appellants are two-fold. first, it is submitted that the evidence on record shows that the appellants had no knowledge of the presence of charas in the vehicle and, therefore, their possession cannot be said to be conscious and they cannot be said to have committed any offence; secondly, it is submitted that the charas content in the stuff recovered from the van was only 24.07 per cent and, therefore, the quantity of the charas was less than the commercial quantity, as notified by the central government. he submits that the exact quantity works out to be 481.4 grams.5. in support of his first submission, learned counsel for the appellants has taken us through the testimony of three witnesses, namely pw-1 hhc udai chand, pw sanjay kumar and pyv-3 asi ghanshyam chand. it was pw-11 asi ghanshyam chand who was heading the police party which intercepted the van. pw-1 hhc udai chand was accompanying him. sanjay kumar pw-2 was present on the spot because there is a forest barrier at the site of the interception of the van. all these three witnesses stated that a polythene bag was recovered from behind the driver's seat. they have also stated that one person was occupying the rear seat and his name was kamal singh. this kamal singh is an absconder. 6. learned counsel for the appellants submits that the charas being available in the rear portion of the van, it is obvious that it belonged to the person occupying the rear seat. his further submission is that during the course of the investigation it was that person, namely kamal singh absconder, who took the police to the place where he had procured the charas from. the argument will not work to the benefit of the appellants for a number of reasons. first, no suggestion was thrown to any of the aforesaid three witnesses that the appellants at the time of the recovery of the charas claimed that they were innocent and that the charas belonged to kamal singh. not only this, the suggestion that was put to the prosecution witnesses was that no stuff was recovered from the van, meaning thereby that the appellants identified themselves with kamal singh so far as the presence of the stuff in the van is concerned. two of the witnesses, namely pw-1 hhc udai chand and pw-11 asi ghanshayam chand, categorically stated that all the three occupants, including the appellants, tried to run away when the vehicle was sought to be checked. learned counsel for the appellants has drawn our attention to the cross-examination part of the testimony of pw-1 hhc udai chand, wherein he stated that all the three occupants were in the van when they were nabbed and argued that no attempt was made by the appellants to run away. we are not convinced by the submission, because the witness nowhere stated that the appellants or the third occupant of the van had in fact started running away. what they have stated is that they tried to run away, which means they were preparing to escape.7. for the foregoing reasons, we reject the first submission.8. the second submission made by the learned counsel for the appellants is that the appellants were tried for the offence of possessing 2 kgs. charas, but the chemical examiner's report shows that the charas content in the recovered stuff was only 24.07 per cent, meaning thereby that the total quantity of charas recovered from them was 481.4 grams. the submission made by the learned counsel is factually correct as per record.9. this court in criminal appeal no. 491 of 2003 (dharam pal v. state of himachal pradesh), vide judgment dated 15.5.2007, in which the facts were similar to the facts of the present case, has held that where the stuff contains charas, i.e. resin of cannabis plant, to certain extent per report of the chemical examiner and with respect to the rest of the. stuff there is no report of the chemical examiner and the report further reads that the stuff contains resin to a certain extent and does not say that the whole of it is charas, as in the present case, the quantity of charas, recovered from an accused, has to be worked out based on the percentage of the resin (charas) in the recovered stuff. '10. applying the ratio of the aforesaid judgment, we hold that the quantity of charas recovered from the appellants was only 481.4 grams or say lesser than the commercial quantity and, therefore, the sentence part of the judgment of the trial court is liable to be modified. the sentence of the appellants, as imposed by the trial court, assumably under section 20(c) of the narcotic drugs & psychotropic substances act, is set aside and in place thereof the appellants are sentenced under section 20(b) of the narcotic drugs & psychotropic substances act. they are sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of rs. 20,000 each, in default of payment of fine to undergo rigorous imprisonment for a further period of three months.11. appeal stands disposed of.
Judgment:

Surjit Singh, J.

1. Heard and gone through the record.

2. Appellants are aggrieved by the judgment of the Special Judge, whereby they have been convicted of and sentenced for an offence under Section 20(B) of the Narcotic Drugs and Psychotropic Substances Act. They have been visited with the punishment of ten years' rigorous imprisonment and fine of Rs. 1,00,000 each, in default of payment of fine simple imprisonment for a further period of six months each.

3. According to the prosecution version, a Maruti Van was intercepted at a place called Vindraban forest barrier in Mandi District, on 15.3.2002, by a Police party. Three persons, including the appellants, were present in the Van. One of the appellants was in driver's seat, while the other one was sitting beside him on the front seat. The third person was occupying the rear seat. A polythene bag was lying behind the driver's seat. That bag contained. Charas, which on weighment was found to be two kilograms. Two samples, each weighing 25 grams, were separated. One sample was sent to the Chemical Examiner, who reported that the sample contained resin to the extent of 24.07 per cent. He concluded his report with the remarks that the sample contained consents of Charas.

4. Submissions made on behalf of the appellants are two-fold. First, it is submitted that the evidence on record shows that the appellants had no knowledge of the presence of Charas in the vehicle and, therefore, their possession cannot be said to be conscious and they cannot be said to have committed any offence; Secondly, it is submitted that the Charas content in the stuff recovered from the Van was only 24.07 per cent and, therefore, the quantity of the Charas was less than the commercial quantity, as notified by the Central Government. He submits that the exact quantity works out to be 481.4 grams.

5. In support of his first submission, learned Counsel for the appellants has taken us through the testimony of three witnesses, namely PW-1 HHC Udai Chand, PW Sanjay Kumar and PYV-3 ASI Ghanshyam Chand. It was PW-11 ASI Ghanshyam Chand who was heading the Police party which intercepted the Van. PW-1 HHC Udai Chand was accompanying him. Sanjay Kumar PW-2 was present on the spot because there is a forest barrier at the site of the interception of the Van. All these three witnesses stated that a polythene bag was recovered from behind the driver's seat. They have also stated that one person was occupying the rear seat and his name was Kamal Singh. This Kamal Singh is an absconder.

6. Learned Counsel for the appellants submits that the Charas being available in the rear portion of the Van, it is obvious that it belonged to the person occupying the rear seat. His further submission is that during the course of the investigation it was that person, namely Kamal Singh absconder, who took the Police to the place where he had procured the Charas from. The argument will not work to the benefit of the appellants for a number of reasons. First, no suggestion was thrown to any of the aforesaid three witnesses that the appellants at the time of the recovery of the Charas claimed that they were innocent and that the Charas belonged to Kamal Singh. Not only this, the suggestion that was put to the prosecution witnesses was that no stuff was recovered from the Van, meaning thereby that the appellants identified themselves with Kamal Singh so far as the presence of the stuff in the Van is concerned. Two of the witnesses, namely PW-1 HHC Udai Chand and PW-11 ASI Ghanshayam Chand, categorically stated that all the three occupants, including the appellants, tried to run away when the vehicle was sought to be checked. Learned Counsel for the appellants has drawn our attention to the cross-examination part of the testimony of PW-1 HHC Udai Chand, wherein he stated that all the three occupants were in the Van when they were nabbed and argued that no attempt was made by the appellants to run away. We are not convinced by the submission, because the witness nowhere stated that the appellants or the third occupant of the Van had in fact started running away. What they have stated is that they tried to run away, which means they were preparing to escape.

7. For the foregoing reasons, we reject the first submission.

8. The second submission made by the learned Counsel for the appellants is that the appellants were tried for the offence of possessing 2 kgs. Charas, but the Chemical Examiner's report shows that the Charas content in the recovered stuff was only 24.07 per cent, meaning thereby that the total quantity of Charas recovered from them was 481.4 grams. The submission made by the learned Counsel is factually correct as per record.

9. This Court in Criminal Appeal No. 491 of 2003 (Dharam Pal v. State of Himachal Pradesh), vide judgment dated 15.5.2007, in which the facts were similar to the facts of the present case, has held that where the stuff contains Charas, i.e. resin of cannabis plant, to certain extent per report of the Chemical Examiner and with respect to the rest of the. stuff there is no report of the Chemical Examiner and the report further reads that the stuff contains resin to a certain extent and does not say that the whole of it is Charas, as in the present case, the quantity of Charas, recovered from an accused, has to be worked out based on the percentage of the resin (Charas) in the recovered stuff. '

10. Applying the ratio of the aforesaid judgment, we hold that the quantity of Charas recovered from the appellants was only 481.4 grams or say lesser than the commercial quantity and, therefore, the sentence part of the judgment of the trial Court is liable to be modified. The sentence of the appellants, as imposed by the trial Court, assumably under Section 20(C) of the Narcotic Drugs & Psychotropic Substances Act, is set aside and in place thereof the appellants are sentenced under Section 20(B) of the Narcotic Drugs & Psychotropic Substances Act. They are sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 20,000 each, in default of payment of fine to undergo rigorous imprisonment for a further period of three months.

11. Appeal stands disposed of.