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2015 DIGILAW 259 (HP)

Krishan Kumar v. State Of Himachal Pradesh

2015-03-27

SANJAY KAROL

body2015
JUDGMENT : Sanjay Karol, J. - In this appeal filed under Section 374 Cr.P.C., convict Krishan Kumar has assailed the judgment dated 16.05.2006, passed by Sessions Judge, Mandi, H.P., in Sessions Trial No.5 of 2003, titled as State of H.P. v. Sh. Krishan Kumar, whereby he stands convicted for having committed an offence punishable under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) and sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs. 20,000/- (rupees twenty thousand) and in default thereof, further undergo imprisonment for a period of three months. 2. It is the case of prosecution that on 10.10.2002, at about 2.30 AM, at traffic light point near Indira Market Mandi town, District Mandi, 250 grams of charas was recovered from the conscious possession of the accused by the police party, headed by K.D. Sharma, SHO Police Station, Sadar (PW.12). Record reveals that recovery was effected from the pocket of the pants worn by the accused. This fact is evident from the testimonies of witnesses to recovery Ghamanda Ram (PW.1) and Gauri Dutt (PW.11). 3. It has come on record that it is not a case of chance recovery. On firm belief and strong suspicion of the accused possessing a contraband substance, accused was searched, which fact is evident not only from the testimonies of these witnesses, but also from consent memo (Ex.PA/1), so produced on record. Now bare perusal of this memo reveals that accused was not informed of his statutory right of being searched in the manner so provided under Section 50 of the Act. 4. In view of the law laid down by a Constitution Bench of the apex Court in State of Punjab v. Baldev Singh, 1999 (6) SCC 172 , non compliance of mandatory provisions of Section 50 of the Act, renders the prosecution case to be fatal. 5. In this view of the matter, findings returned by the Court below cannot be said to be legal or borne out from the record. In the instant case, Investigating Officer himself had recorded his suspicion of accused carrying a psychotropic substance. 6. As such, findings returned by the trial Court, convicting the accused, cannot be said to be based on correct and complete appreciation of testimonies of prosecution witnesses. In the instant case, Investigating Officer himself had recorded his suspicion of accused carrying a psychotropic substance. 6. As such, findings returned by the trial Court, convicting the accused, cannot be said to be based on correct and complete appreciation of testimonies of prosecution witnesses. Such findings cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused. Incorrect and incomplete appreciation thereof, has resulted into grave miscarriage of justice, inasmuch as accused stands wrongly convicted for the charged offence. 7. Hence, for all the aforesaid reasons, appeal is allowed and the judgment of conviction and sentence, dated 16.05.2006, passed by Sessions Judge, Mandi, H.P., in Sessions Trial No.5 of 2003, titled as State of H.P. v. Sh. Krishan Kumar, is set aside and accused Krishan Kumar is acquitted of the charged offences. Accused is already on bail as such bonds are discharged. Amount of fine, if deposited by the accused, be refunded to him accordingly. 8. Appeal stands disposed of, so also pending applications, if any.