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2016 DIGILAW 1906 (HP)

STATE OF HIMACHAL PRADESH v. ROHIT SAGOTRA

2016-09-06

AJAY MOHAN GOEL, SANJAY KAROL

body2016
JUDGMENT : SANJAY KAROL, J. 1. Since the appeal and the petition arise out of the very same impugned judgment, they are being disposed of as such. 2. On 13.5.2009, police allegedly recovered 288 capsules of Spasmo Proxivon and 148 capsules of Spas Poxymone (hereinafter referred to as the stuff) from the conscious and exclusive possession of the accused. With the filing of the challan, accused was charged for having committed offences, punishable under the provisions of Sections 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and 18(c) of Drugs and Cosmetics Act, 1940 (hereinafter referred to as Drugs & Cosmetics Act). 3. Trial Court, based on the testimonies of the prosecution witnesses, vide judgment dated 29.3.2011, passed in Sessions Trial No. 19-S/7 of 2010, titled as State of Himachal Pradesh v. Rohit Sagotra, held the stuff to have been recovered from the conscious and exclusive possession of the accused, but however, finding the same not to be a psychotropic substance, so as to fall within the definition, ambit and scope of the provisions of the NDPS Act, and in the absence of any cognizance having been taken by the competent Officer, under the provisions of the Drugs & Cosmetics Act, while acquitting the accused under the provisions of the NDPS Act, directed a copy of the judgment be sent to the Assistant Drugs Controller, Solan, for taking appropriate action, in accordance with law. 4. Both, State and the accused, are aggrieved of the said judgment. 5. Before us, it is a common case of the parties that the stuff recovered from the accused is not a psychotropic substance, so as to fall within the definition clause of the NDPS Act. It is also not disputed that even no complaint came to be lodged or cognizance taken by a competent Officer, as is so required under the provisions of Section 32 of the Drugs & Cosmetics Act. No doubt, the Court, conducting the trial, was the competent Court, but then, in the absence of any compliance of the aforesaid Section, trial Court rightly did not take suo-moto cognizance of commission of crime under the provisions of the Drugs & Cosmetics Act. 6. No doubt, the Court, conducting the trial, was the competent Court, but then, in the absence of any compliance of the aforesaid Section, trial Court rightly did not take suo-moto cognizance of commission of crime under the provisions of the Drugs & Cosmetics Act. 6. Having said so, we find that having come to the conclusion that the stuff recovered was not a psychotropic substance, and that no cognizance was ever taken by the competent Officer, trial Court ought not to have returned findings on merits and more so, with regard to the stuff having been recovered from the conscious possession of the accused. It is here that the Court committed a jurisdictional error, in returning such findings, and more specifically held in para-28 of the impugned judgment. 7. The fact, as to whether recovery stood effected from the conscious possession of the accused or not, had to be tried in a properly instituted proceedings, in accordance with and under the relevant statutory provisions. 8. In this view of the matter, findings returned by the trial Court, with regard to the recovery of the stuff from the conscious and exclusive possession of the accused, being illegal, are quashed and set aside. However, insofar as direction, limited in nature, of sending a certified copy of the judgment to the Assistant Drugs Controller, for taking appropriate action, in accordance with law, cannot be said to be out of place or illegal. 9. Hence, with the aforesaid observations, present appeal and the petition stand disposed of, so also pending application(s), if any.