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2016 DIGILAW 146 (HP)

STATE OF H. P. v. MILAP CHAND

2016-02-27

P.S.RANA, SANJAY KAROL

body2016
JUDGMENT : Sanjay Karol, J. 1. 100 grams of Charas is alleged to have been recovered from the conscious possession of accused Milap Chand on 17.3.2012. In order to substantiate its case, prosecution has examined 9 witnesses. Undisputedly, two of the independent witnesses, who were associated by the police in the search and seizure operations, have not supported the prosecution. Finding the testimonies of police officials to be not inspiring in confidence, accused stands acquitted of the charge framed for commission of offence punishable under the provisions of Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). 2. State has filed the present petition, under the provisions of section 378(3) of the Code of Criminal Procedure, 1973 seeking leave to appeal against the judgment dated 23.9.2015, passed by Special Judge (IV), Kangra at Dharamshala, Camp at Baijnath, District Kangra, Himachal Pradesh, in Sessions Trial No. 8-B/14, titled as State v Milap Chand, whereby accused respondent Milap Chand (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. 38/2012, dated 17.3.2012 (Ex. PW-7/C), registered at Police Station, Baijnath, District Kangra, Himachal Pradesh, accused Milap Chand was charged to face trial, for having committed offence, punishable under the provisions of Section 20 of the Act. 4. Briefly stated, case of the prosecution is that on 17.3.2012, around 11.15 am, when police party headed by Inspector Ambiya Ram (PW-7) and consisting of HC Manoj Kumar (PW-1), Constable Hakam Chand (PW-8), HHG Rajan Katoch, Constable Viraj Sharma (PW-3) and HC Munshi Ram, was present at Chobin Chowk Baijnath, secret information was received to the effect that accused deals in sale of Charas in his tea shop and if raid is conducted, large quantity could be recovered. Report under the provisions of Section 42(2) of the Act was prepared and sent through Constable Hakam Chand. Ruka (Ex.PW- 1/B) was sent through Constable Viraj Sharma, on the basis of which FIR (Ex.PW-7/C) was registered at Police Station, Baijnath. Thereafter, by associating Arvind Katoch (PW-2) and Amit Kapoor (PW-5), as witnesses, a raiding party was formed. The raiding party reached the shop of the accused, who was found present there. Ruka (Ex.PW- 1/B) was sent through Constable Viraj Sharma, on the basis of which FIR (Ex.PW-7/C) was registered at Police Station, Baijnath. Thereafter, by associating Arvind Katoch (PW-2) and Amit Kapoor (PW-5), as witnesses, a raiding party was formed. The raiding party reached the shop of the accused, who was found present there. He was informed of his statutory rights and consented to be searched by the police officials present on the spot. On search of the shop, no contraband substance was recovered, but however, on personal search of the accused, from the right side pocket of his pants, a polythene bag was recovered, which contained Charas in the shape of sticks. On weighment, the Charas was found to be 100 grams, which was put into the same polythene bag and sealed with seal of seal impression 'A' and taken into possession vide Memo (Ex.PW-1/G). Sample of the seal was taken on a separate piece of cloth (Ex.PW-1/C); NCB form (Ex.PW-1/F); and with the completion of proceedings on the spot, the case property was entrusted to MHC Anil Kumar (PW-9), who sent the same for chemical analysis through HHC Raj Kumar (PW-4). On receipt of the report of the Chemical Examiner (Ex.PA) and with the completion of investigation, which, prima facie, revealed complicity of the accused in the alleged crime, 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. V.S. Chauhan, learned Additional Advocate General, has taken us through the record of trial Court, including testimonies of the prosecution witnesses. 7. In the instant case, out of nine witnesses, independent witnesses Arvind Katoch and Amit Kapoor have not supported the prosecution case. 8. When we peruse the testimonies of police officials, IO Ambiya Ram (PW-7), Constable Hakam Chand (PW-8) and HC Manoj Kumar (PW-1), we find that police party had received secret information about the accused being possessed with Narcotic substance. As such, proceedings, under Section 42 of the Act were drawn and after forming a raiding party, premises of the accused were searched. As such, proceedings, under Section 42 of the Act were drawn and after forming a raiding party, premises of the accused were searched. Significantly, the witnesses have deposed that prior to the search of the accused, option of being searched by the police official was given to him, which fact stands recorded in the consent Memo (Ex.PW-1/C). It is here, we find there is violation of the mandatory provisions and the ratio of law laid down by the apex Court in Man Bahadur v. State of Himachal Pradesh, (2008) 16 SCC 398 . 9. Undisputedly, the contraband substance was recovered from the pocket of the accused. Otherwise also, we find testimony of the police officials to have been controverted by the independent witnesses. 10. Hence, trial Court, in my considered view, 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. 11. As such, present petition for leave to appeal, being without any merit, is dismissed and disposed of.