Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 1412 (HP)

State of H. P. v. Manoj Kumar

2016-07-16

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 17.2.2010 rendered by the Special Judge, Chamba in sessions trial No. 9 of 2009 whereby the respondent-accused (hereinafter referred to as the “accused”), who was charged with and tried for offence punishable under section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ‘Act’ for brevity sake), has been acquitted. 2. Case of the prosecution, in a nutshell, is that on 13.12.2008, PW-11 ASI Yudhbir Singh along with PW-1 HC Roop Singh and others left Police Post, Banikhet on patrolling duty after getting entered Rapat in the Daily Diary. The police officials were present at Zero Point, Goli along with PW-10 Parkash Chand and one Prem Chand. Accused came from Chauhra side. He tried to run away. He was nabbed. He was wearing a black jacket and sweater and something was bulging out from inside the sweater. ASI Yudhbir Singh became suspicious and asked the accused to take out article. Accused took out the article, which was found to be a small bag of yellow colour. On checking of the same, it was found to be containing polythene envelope. Polythene envelope was found to be containing charas. It was weighed. It was found to be 750 grams. Two samples of 25 grams each were separated from the charas. These were put into separate parcels. The same were sealed with seal impression ‘K’ at three places. The bulk charas was sealed in the same polythene packet and small bag with seal impression ‘K’ at three places. Rukka Ex.PW-11/B was prepared. It was sent to Police Station, Dalhousie through Constable Sanjay Kumar. FIR Ex.PW-8/A was registered. Case property was produced by ASI Yudhbir Singh before SI Bhuvneshwar Singh. He resealed the sample parcels and the parcel containing bulk charas with seal impression ‘B’. SI Bhuvneshwar also filled in the relevant columns of NCB form. The case property along with NCB form etc. was deposited with HC Gurdhian Singh, the-then MHC, Police Station, Dalhousie. The sample parcel was sent to FSL, Junga through HHC Kamal Kumar vide RC No. 127/08. The report of Chemical Examiner is Ex.PW-7/A. The police investigated the case and the challan was put up in the Court after completing all the codal formalities. 3. Prosecution examined as many as eleven witnesses in all to prove its case against the accused. The sample parcel was sent to FSL, Junga through HHC Kamal Kumar vide RC No. 127/08. The report of Chemical Examiner is Ex.PW-7/A. The police investigated the case and the challan was put up in the Court after completing all the codal formalities. 3. Prosecution examined as many as eleven witnesses in all to prove its case against the accused. Statement of accused under Section 313 Cr.P.C. was recorded. The defence of the accused is of simplicitor denial. Trial court acquitted the accused. Hence, the present appeal. 4. Mr. M.A. Khan, learned Additional Advocate General, has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Vijay Chaudhary, learned counsel for the accused, has supported the judgment dated 17.2.2010. 6. We have heard the learned counsel for the parties and have gone through the judgment and record meticulously. 7. PW-1 HC Roop Singh has testified that on 13.12.2008, he along with ASI Yudhbir Singh and other police officials was on patrolling duty. Witnesses Prem Singh and Parkash Chand were also waiting for the bus at Rain Shelter, Goli. In the meantime, one person came on foot from Chauhra side. He tried to run away. He was apprehended. He was bearing a black jacket and a sweater. It was bulging out. Police asked the accused to take out the article. Accused took out a yellow colour bag. It was found to be containing one polythene envelope. Polythene envelope was carrying charas in the shape of sticks. It weighed 750 grams. The proceedings were completed on the spot. In his cross-examination, he has deposed that they arrived at the spot at about 6.46–7.00 P.M. ASI had arrived before them. He did not remember that ASI gave his personal search to the accused. He did not remember if statement of consent of accused was recorded or not. Dhaba and shops were at a distance of 100 meters from the Rain Shelter, Goli. 8. PW-2 Constable Rajesh Kumar has deposed that ASI Yudhbir Singh produced the case property before SI Bhuvneshwar Singh. SI Bhuvnehswar Singh resealed all the parcels with seal impression ‘B’ by putting three seals on each of the parcels. 9. PW-6 HC Gurdhian Singh has deposed that on 13.12.2008, SI/SHO Bhuvneshwar Pathania handed over to him three parcels, NCB form, specimen seal impressions K and B, which were entered by him in the Malkhana register. SI Bhuvnehswar Singh resealed all the parcels with seal impression ‘B’ by putting three seals on each of the parcels. 9. PW-6 HC Gurdhian Singh has deposed that on 13.12.2008, SI/SHO Bhuvneshwar Pathania handed over to him three parcels, NCB form, specimen seal impressions K and B, which were entered by him in the Malkhana register. On 14.12.2008, one sample parcel was handed over to HHC Kamal Kumar for being taken to FSL, Junga along with NCB form and specimen seal impressions B and K for chemical examination. HHC Kamal Kumar after depositing the same with FSL, Junga, returned the receipt to him. 10. PW-8 SI Bhuvneshwar Singh Pathania has also deposed that the Rukka was brought to him. He recorded FIR Ex.PW-8/A. He resealed the parcels with seal impression ‘B’ and filled in the relevant columns of NCB form. Case property was deposited with MHC Gurdhyan Singh. 11. PW-9 HHC Kamal Kumar has deposed that on 14.12.2008, HC Gurdhyan Singh handed over to him, one sample parcel duly sealed with seals K and B having sealed at three places each and NCB form vide RC No. 127/2008. He deposited the same at FSL, Junga, on 15.12.2008. 12. PW-10 Parkash Chand has not supported the prosecution case. He was declared hostile and was cross examined by the learned Public Prosecutor. In his cross- examination by the learned Public Prosecutor, he has deposed that he could not say that accused was the same person, who was arrested on that day. He has admitted his signatures on parcel Ex.P-1, sample parcels Ex.P-2 and P-3 and specimen seal impression Ex.PW-10/B. 13. PW-11 ASI Yudhbir Singh has testified the manner in which accused was apprehended and charas was recovered and all the codal formalities were completed. He prepared Rukka Ex.PW-11/A, on the basis of which FIR was registered. In his cross-examination, he has categorically admitted that he has not asked the accused if he wanted to give his search before a Magistrate. When he noticed the belly of the accused bulging out, he got suspicious that he might be carrying something and he asked him to take out the same which was concealed by him. 14. Learned trial court has acquitted the accused. Mr. M.A. Khan, learned Additional Advocate General has argued that section 50 of the Act was not applicable in the present case. Thus, the trial court has wrongly acquitted the accused. 14. Learned trial court has acquitted the accused. Mr. M.A. Khan, learned Additional Advocate General has argued that section 50 of the Act was not applicable in the present case. Thus, the trial court has wrongly acquitted the accused. However, fact of the matter is that it has come in the statement of PW-1 Roop Singh that accused was wearing a black jacket and a sweater beneath it. It was bulging out. Police asked the accused to take out the same. Accused took out a yellow colour bag. It was found to be containing one polythene envelope. Polythene envelope was carrying charas. Similarly, PW-11 ASI Yudhbir Singh has also admitted that accused was wearing a jacket and a sweater. His belly was protuberating and he got suspected that accused might be carrying some contraband. Thereafter, accused was asked to take out the same from his person and it was found to be containing charas. The contraband has been recovered from the person of accused, but provisions of section 50 of the Act have not been complied with. PW-11 ASI Yudhbir Singh has admitted in his cross-examination that he has not sought option of the accused to be searched before a Magistrate. The accused was required to be asked whether he wanted to give search either before a Magistrate or a Gazetted Officer. Since the contraband has been recovered from the person of accused, compliance of provisions of section 50 of the Act was mandatory. Thus, there is no occasion for us to interfere with the well reasoned judgment of the trial court. 16. Consequently, in view of analysis and discussion made hereinabove, there is no merit in the appeal and the same is dismissed. Bail bonds are cancelled.