He submitted that FIR was recorded at 1.30 a.m. on 2nd November & Ors. v. State of Himachal Pradesh appeal (Criminal Appeal Nos.491 & 510 of 2003) & Anr.

there was unexplained delay in sending copy of the FIR to the concerned Judicial Magistrate. He submitted that FIR was recorded at

1.30 a.m. on 2nd November, 2002, per entry in Column No.3(b & c) of FIR Ex. PW-7/A but its copy was received by the Judicial Magistrate at

4.40 p.m., even though the distance between the Court and the Police Station is a few hundred metres. Mere delay in the receipt of the copy of the FIR by the Judicial Magistrate will not make the prosecution version doubtful, especially when no major contradiction in the testimony of the witnesses with regard to the search and seizure of Charas is there. …6…

#8. Next, it was contended that link evidence with regard to the sample analyzed by the Chemical Examiner and reported (vide report Ex. PA) to be Charas did not conclusively prove that the sample that was analyzed was the same as had been separated from the recovered stuff.

#9. It was pointed out that even though MHC Subhash Chand (PW-7) testified that he had received the three parcels, including two sample parcels, from PW-13 Inspector Khub Ram, alongwith NCRB form, sample seals etc. and had sent one of the two samples alongwith NCRB form etc. to the chemical laboratory through Constable Kamal Kishore (PW-14) and PW-14 Kamal Kishore had also stated that a parcel with NCB form and specimen seal impression etc. was handed over to him by PW-7 MHC Subhash Chand and he carried the same to the chemical laboratory and delivered it alongwith the documents to the concerned official, PW-13 Inspector Khub Ram himself did not say that he had handed over the parcels, the NCB form and specimen seal impression etc. to the MHC. It is true that Inspector Khub Ram has not stated that he handed over the case property, NCB form and specimen impression of the seal etc. to the MHC, but this omission loses much of its significance, in view of the fact that the testimony of PW-7 MHC Subhash Chand that the parcels alongwith NCB form, specimen seal impression etc, had been deposited with him by PW-13 Inspector Khub Ram, was not challenged by the appellant, while cross-examining this witness. Furthermore, the witness appeared in the Court alongwith Register No.19 of Malkhana in which entries about case property are made. He testified that the entry regarding deposit of the case property, i.e. three parcels and other articles pertaining to this case by PW-13 Inspector Khub Ram was there in that register. The witness was not …7… cross-examined by the appellant by reference to the entry in the said Register nor was it suggested to the witness that there was no entry in the Register about the case property, NCB form, specimen impression etc. pertaining to this case in the said Register.

#10. It was then submitted that no local witness had been associated, even though it had come in evidence that there was Dhaba of PW-11 Kulwant Singh near the site of Naka and some customers were also present at the Dhaba. It is true that Kulwant Singh (PW-11) or the customers, who were present at his Dhaba, were not associated but that does not mean that no local independent witness had been associated. PW-9 Prakash Chand is resident of village Goli or say the village where the Naka was organized.

#11. However, from the evidence on record, we find that even though Charas was contained in two packets (2 kgs. in each packet), there is no evidence that the stuff of the two packets had been mixed before the samples were drawn. From the testimony of PW-1 Rajesh Kumar, it appears that two samples were taken from each of the two packets. The relevant portion of the statement of the witness reads as follows. “Each packet was containing 2 kgs of Charas. The samples were also obtained separately from each packet.” Other witnesses, namely PW-6 Krishan Lal and PW-12 ASI Ravi Kumar, have stated that only two samples were taken, even though they say that two samples were taken from both the packets but they have not elaborated if each sample contained sample of the stuff from both the packets recovered from the appellant. It is quite likely that one sample was taken from one packet and the other from the other packet. Testimony of PW-1 Constable Rajesh Kumar indicates that separate samples were taken from the two packets. The inference is that either both the samples …8… had been taken from one packet or one of the two samples had been taken from one packet and the other from the second packet. If it is so, report Ex. PA of the Chemical Examiner to whom only one sample parcel was sent cannot be said to pertain to the stuff contained in both the packets recovered from the appellant, but only to one of them. Admittedly, both the packets contained 2 kgs stuff each. So, the appellant cannot be said to be in possession of more than 2 kgs. stuff.

#12. As already noticed hereinabove, the Chemical Examiner, vide report Ex. PA, has reported that the stuff contained only 26.45 per cent resin. His final opinion is that the sample contained contents of Charas. He has not given any opinion as to what were the rest of the contents. A Division Bench of this Court, in Dharam Pal versus State of Himachal Pradesh and another appeal (Criminal Appeal Nos.491 & 510 of 2003), decided on 15.5.2007, has held that only the resin content of the stuff is Charas and that in the absence of the report of the Chemical Examiner about the rest of the contents of the stuff, the quantity of the Charas, based on the percentage of the resin found therein by the Chemical Examiner, is required to be worked out and the appellant-accused is to be held responsible for possessing Charas only to the extent, the stuff contains the resin.

#13. As noticed hereinabove, total quantity of stuff recovered from the appellant is to be taken to be 2 kgs. The Chemical Examiner has found resin content in it to the extent of 26.45 per cent. That means the Charas/resin content in the recovered stuff was 529 grams. This quantity is less than the commercial quantity, as specified vide Notification No. S.O. 1055(E), dated 19th October, 2001, issued by the Central Government, even though more than the upper limit of the small quantity fixed by the same Notification. Thus, the appellant is …9… liable to be punished not under Section 20(C) of the Narcotic Drugs and Psychotropic Substances Act, as done by the trial Court, but under Section 20(B) of the said Act for which no minimum sentence is prescribed. The offence under Section 20(B) is punishable with imprisonment that may extend to ten years and with fine which may extend to Rs.1,00,000/-. Looking to the quantity of resin/Charas found in the stuff recovered from the appellant, we feel that the ends of justice would be met in case his sentence is reduced from ten years rigorous imprisonment and a fine of Rs.1,00,000/- to four years rigorous imprisonment and a fine of Rs.20,000/-, in default of payment of fine simple imprisonment for a further period of six months. We order accordingly.

#14. The appellant has been in custody since 1.11.2002. Thus, he has been in detention for a period longer than the sentence of substantive imprisonment as reduced by this Court hereinabove. In fact he has undergone imprisonment for a period more than the term of substantive imprisonment, as reduced hereby plus the imprisonment awarded in default of payment of fine. Therefore, it is ordered that he be set at liberty forthwith, in case his detention is not required in any other case.

#15. Appeal stands disposed of. ( Surjit Singh ), J August 7, 2007(sd) ( Surinder Singh ), J