Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 1115 (HP)

State Of H. P v. Sunil Kumar

2015-08-14

SANJAY KAROL, SURESHWAR THAKUR

body2015
JUDGMENT : Sanjay Karol, J. Cr.MP(M) No. 789 of 2015 1. For the reasons set out in the application, delay of 76 days in filing the appeal/leave to appeal, which in our considered view stands sufficiently explained is condoned. Application stands disposed of. Cr.MP(M) No. 788 of 2015 2. State has filed the present petition, under the provisions of Section 378 (3) of the Code of Criminal Procedure, seeking leave to appeal against the judgment dated 8.12.2014, passed by Special Judge, Shimla, Himachal Pradesh, in Sessions Trial No. 34-S/7 of 2011, titled as State of H.P. v. Sunil Kumar, whereby accused-respondent Sunil Kumar (hereinafter referred to as the accused), stands acquitted of the charge for having committed offence, punishable under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter after referred to as the Act). 3. In relation to FIR No. 95/2011, dated 11.8.2011 (Ex. PW-6/A), registered at Police Station, East, Chotta Shimla, District Shimla, Himachal Pradesh, under the provisions of Section 20 of the Act, accused Sunil Kumar was charged to face trial, for having committed an offence, punishable under the provisions of Section 20 of the Act. 4. Briefly stated, case of the prosecution is that on 11.8.2011 ASI Vijay Kumar (PW-10) along with HC Manoj Kumar (PW-2) and HC Sanjeev Kumar (PW-3) was on patrolling duty near Raj Bhawan Road Shimla. At about 3.10 P.M., finding the accused to be present, under suspicious circumstances, near St. Beads College, he was apprehended and on suspicion of carrying some contraband substance, searched. Search was conducted only after obtaining his consent vide memo (Ext. PW-2/A). From the pocket of the trouser worn by the accused contraband substance which appeared to be charas was recovered. Upon weighment it was found to be 105 grams. Accused was arrested. With the completion of necessary formalities on the spot, in the police station and after obtaining report from the State Forensic Science Laboratory, Junga (Ext. PX), challan was presented in the Court for trial. 5. Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offence. Hence, the present petition for leave to appeal by the State. 6. Mr. M.A. Khan, learned Additional Advocate General, has taken us through the record of trial Court, including testimonies of the prosecution witnesses. 7. 5. Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offence. Hence, the present petition for leave to appeal by the State. 6. Mr. M.A. Khan, learned Additional Advocate General, has taken us through the record of trial Court, including testimonies of the prosecution witnesses. 7. In our considered view, prosecution has not been able to establish, as is so required in law, factum of recovery of 105 grams of Charas from the left pocket of the trouser worn by the accused. Undisputedly, contraband substance was recovered from the person of the accused. It is not a case of chance recovery. Police suspected accused of having carried some contraband substance and therefore had obtained his consent vide memo (Ext. PW-2/A). It stands observed by the Court below that the accused was not informed of his right of being searched either by the Magistrate or the Gazetted Officer. Thus, there is infraction of compliance of mandatory provisions of Section 50 of the Act. 8. In view of the law laid down by the Hon'ble Supreme Court of India in Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 and State of Punjab v. Baldev Singh, (1999) 6 SCC 172 , we find no error with the findings returned by the court below. We find that in acquitting the accused, there is neither any illegality nor any perversity with the reasoning adopted or findings returned by the Court below. 9. In our considered view, trial court, rightly acquitted the accused. There is no error apparent on the face of record or illegality or perversity, resulting into miscarriage of justice, in the findings returned by the trial Court, warranting interference by this Court and we see no reason to grant leave to appeal. 10. As such, present petition for leave to appeal, being without any merit, is dismissed and disposed of.