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Himachal Pradesh High Court · body

2015 DIGILAW 1990 (HP)

State of H. P. v. Hem Raj alias Raju

2015-12-30

P.S.RANA, RAJIV SHARMA

body2015
JUDGMENT : Justice Rajiv Sharma, J. This appeal has been instituted at the instance of the State against the judgment dated 2.4.2015, rendered by the learned Special Judge, Solan, H.P. in Sessions Trial No. 11-S/7 of 2012, whereby the respondent-accused, who was charged with and tried for offence punishable under Sections 20 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 16.2.2012, HC Om Parkash (PW-9) along with the police party had gone on patrolling duty and checking of Narcotics in a government vehicle towards Dharampur side. At about 6:30 PM, they were present at Kathala when the accused came there on foot. He tried to run away. He was nabbed. PW-3 Bharat Chand and Bhagat Ram, who met the police party on the road, were associated in the search party as independent witnesses. The consent of the accused for his search was obtained vide memo Ext. PW- 1/A. The accused consented to be searched by the police party present on the spot. The personal search of the accused was thereafter conducted and one carry bag was recovered from the left inner pocket of jacket of the accused. On opening, it was found to be containing charas in the form of wicks and balls. It weighed 175 grams. It was put back in the same carry bag and thereafter in a cloth parcel and the cloth parcel was sealed with three seals of impression “K”. It was taken into possession vide memo Ext. PW-1/C. Rukka Ext. PW-6/A was prepared and was forwarded to the PS Dharampur through PW-11 HHC Hem Raj. On receipt of the rukka, FIR Ext. PW-6/B was registered at PS Dharampur by PW-12 Insp. Pritam Singh. The site plan Ext. PW-9/A was prepared by PW-9 HC Om Parkash. PW-12 Insp. Pritam Singh, resealed the case property with three seals of impression “P”. Specimen seal Ext. PW-12/B was drawn separately and seal impression was also affixed over NCB form. He issued resealing certificate vide Ext. PW-12/C. The case property along with sample seals, seizure memo, NCB form, copy of FIR were deposited with PW-6 HHC Parveen Kumar, the then In-charge Malkhana, PS Dharampur, who made entry in the malkhana register. The abstract of the register is Ext. He issued resealing certificate vide Ext. PW-12/C. The case property along with sample seals, seizure memo, NCB form, copy of FIR were deposited with PW-6 HHC Parveen Kumar, the then In-charge Malkhana, PS Dharampur, who made entry in the malkhana register. The abstract of the register is Ext. PW- 6/E. The parcel containing contraband alongwith the sample seals, NCB form, seizure memo etc. were forwarded to FSL Junga through PW-7 HHC Ashok Kumar vide RC Ext. PW-6/F. He deposited the same at FSL, Junga in a safe condition. The report of the chemical examiner is Ext. PW-10/A. 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 12 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. V.S.Chauhan, learned Addl. 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. PW-9 HC Om Parkash deposed that on 16.2.2012 at about 6:30 PM, he was present at Kathala along with other police officials on patrolling duty. The accused came on the spot on foot. He tried to run away. He was nabbed. Two independent witnesses, namely, Bharat Chand and Bhagat Ram were associated in search party and consent of the accused for search was obtained vide memo Ext. PW-1/A. The accused consented to be searched by the police party present at the spot. Thereafter, personal search of the accused was conducted and from the left inner pocket of his jacket, one light yellow coloured carry bag was recovered. On opening, it was found to be containing charas in the form of sticks/wicks. It weighed 175 grams. 7. The statement of PW-9 HC Om Parkash was corroborated and supported by PW-1 HC Hardev and PW-11 HHC Hem Raj, who were also members of the search party. The rukka Ext. PW-6/A was prepared and forwarded to Police Station through PW-11 HHC Hem Raj. PW-12 Insp. Pritam Singh re-sealed the case property with three seals of impression “P”. 7. The statement of PW-9 HC Om Parkash was corroborated and supported by PW-1 HC Hardev and PW-11 HHC Hem Raj, who were also members of the search party. The rukka Ext. PW-6/A was prepared and forwarded to Police Station through PW-11 HHC Hem Raj. PW-12 Insp. Pritam Singh re-sealed the case property with three seals of impression “P”. The case property along with sample seals, seizure memo, NCB form and copy of FIR were deposited with PW-6 HHC Parveen Kumar. He made entry in the malkhana register vide Ext. PW-6/E. The parcel containing contraband alongwith the sample seals, NCB form, seizure memo etc. were forwarded to FSL Junga through PW-7 HHC Ashok Kumar vide RC Ext. PW-6/F. He took the same and deposited it at FSL, Junga. 8. In the instant case, the contraband was recovered from the jacket of the accused, which he was wearing. Thus, Section 50 of the ND & PS Act was required to be complied with. PW-3 Bharat Chand is the independent witness. In his cross-examination, PW-3 Bharat Chand admitted that the accused was alleged to have been given option to be searched before the Gazetted Officer or a Magistrate after the recovery of the contraband from his personal search. According to him, he reached the spot and the accused was already with the police officials. This statement of PW-3 Bharat Chand is in variance with the statements of PW- 1 HHC Hardev Singh, PW-9 HC Om Parkash and PW-11 HHC Hem Raj. According to these witnesses, the option was given to accused prior to taking his personal search to get him searched either before the Gazetted Officer or Magistrate. 9. According to PW-3 Bharat Chand, the consent memo was prepared after the recovery of the contraband from the possession of the accused. PW-1 HHC Hardev Singh and PW-11 HHC Hem Raj have also not deposed that the accused was apprised that he has legal right to be searched before the Gazetted Officer or Magistrate. The learned trial Court has rightly come to the conclusion that there was breach of the mandatory provisions of Section 50 of the ND & PS Act. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court dated 2.4.2015. 10. Accordingly, there is no merit in this appeal and the same is dismissed.