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Himachal Pradesh High Court · body

2015 DIGILAW 1971 (HP)

State of H. P. v. Hardev Singh alias Bhola

2015-12-24

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Justice Rajiv Sharma, J. This appeal has been instituted at the instance of the State against the judgment dated 1.7.2015, rendered by the learned Special Judge(II), Mandi, H.P. in Sessions Trial No. 32 of 2009, whereby the respondent-accused, who was charged with and tried for offences punishable under Sections 18/20-61-85 of the Narcotic Drugs and Psychotropic Act, 1985 (hereinafter referred to as the ND & PS Act), has been acquitted. 2. The case of the prosecution, in a nut shell, is that on 13.1.2009, ASI Ram Lal and other police officials were present at place called Kangu. They had gone for investigation of the case under Sections 457 and 380 IPC. The accused came on foot at the spot, who was going towards Sundernagar. He tried to run away. He was nabbed. One Shyam Lal was associated in the investigation by the police and accused was searched. Inside the jacket of the accused, a polythene bag, white in colour, was recovered. On checking, stick type cannabis was found. It weighed 150 grams. One another polythene was also found in which 5 grams of opium was recovered. Sample was taken from the cannabis. The investigation was completed and challan was put up before the Court after completing all the codal formalities. 3. The prosecution has examined as many as 9 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C. He denied the prosecution case. The learned Trial Court acquitted the accused, as noticed hereinabove. Hence, the present appeal. 4. Mr. P.M.Negi, learned Dy. Advocate General, appearing for the State has vehemently argued that the prosecution has proved its case against the accused. 5. We have gone through the impugned judgment and records of the case carefully. 6. The case of the prosecution is that on 3.1.2009, the accused was seen going towards Sundernagar. He was apprehended. His personal search was carried out and contraband was recovered from his possession. Sh. Shyam Lal, an independent witness, was not produced before the Court. PW-9 ASI Ram Lal has categorically admitted that the personal search of the accused was carried out on the spot but Section 50 of the ND & PS Act was not complied with. 7. Section 50 of the ND & PS Act is mandatory. Sh. Shyam Lal, an independent witness, was not produced before the Court. PW-9 ASI Ram Lal has categorically admitted that the personal search of the accused was carried out on the spot but Section 50 of the ND & PS Act was not complied with. 7. Section 50 of the ND & PS Act is mandatory. Since the personal search of the accused was carried out, he was required to be apprised of his legal right to be searched either before the Magistrate or the Gazetted Officer. The non-compliance of Section 50 of the ND & PS Act has vitiated the entire trial. Moreover, it has also come on record that the place where the accused was apprehended, there were many shops and houses and buses used to ply, but despite that no independent witness was associated to inspire confidence the manner in which the accused was nabbed, search, seizure and sealing proceedings were completed on the spot. 8. The rukka was prepared on the spot and it was sent to the Police Station through Const. Rakesh Kumar for registration of the FIR. FIR was registered, however, the fact of the matter is that Constable Rakesh Kumar, who has allegedly taken rukka from the spot to the Police Station, has not been examined. Thus, the prosecution has failed to prove that the accused was found in conscious and exclusive possession of 150 grams of cannabis and 5 grams of opium. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court dated 1.7.2015. 9. Accordingly, there is no merit in this appeal and the same is dismissed.