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2016 DIGILAW 239 (HP)

State of Himachal Pradesh v. Darshan Kumar

2016-03-14

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Rajiv Sharma, J. This appeal has been instituted by the State against Judgment dated 3.9.2015 rendered by Special Judge, Chamba Division, Chamba, HP in Sessions Trial No. 83 of 2013, wherby respondent has been acquitted. 2. Case of the prosecution, in a nutshell, is that on 3.10.2013, ASI Rajesh Kumar of State CID Crime Bureau, Chamba alongwith IO Kit and other police officials, ASI Bhupinder Singh, HHC Surinder Kumar, Constable Abnish, Shoukat Ali and Lady Constable Asha Kumari was present at place Gunnu Nallah in connection with a secret information. At about 11 AM, one person came from Nakrod side towards Chamba on foot. He was holding a carry bag in his right hand. On seeing the police party, he became perplexed and tried to run back side. He was nabbed. ASI Rajesh Kumar entertained suspicion that accused might be possessing some illegal thing or contraband and therefore asked the accused to give his search to the police present on the spot or some Gazetted Officer and he can inform him orally or in writing. Accused opted to give his personal search as well as search of the bag to the police officials present on the spot. After giving personal search, carry bag was checked. It contained black substance in the shape of sticks. It was found to be Charas. It weighed 1.500 kg. After weighing charas was put in the same carry bag and packed in a parcel and sealed with eight seals of impressions ‘K’. Specimen seal impressions were retained on a separate cloth piece. NCB form was filled in triplicate and impression of seal was also embossed on the NCB form. Seal after use was given to ASI Bhupinder Singh. Charas parcel was taken into possession. Thereafter, ASI Rajesh Kumar prepared Rukka. It was faxed to the police station and its copy was also sent to the SP Crime through fax. FIR was registered. Parcel of charas was got resealed from Inspector/ SHO Surat Ram. It was sent to FSL Junga. Investigation was completed and Challan was put up in the Court after completing all codal formalities. 3. Prosecution has examined as many as 12 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. Accused was acquitted. Hence, this appeal. 4. Mr. It was sent to FSL Junga. Investigation was completed and Challan was put up in the Court after completing all codal formalities. 3. Prosecution has examined as many as 12 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. Accused was acquitted. Hence, this appeal. 4. Mr. M.A. Khan, Additional Advocate General, has vehemently argued that the prosecution has proved its case against the accused. 5. We have heard the learned counsel for the appellant and also gone through the record carefully. 6. Case of the prosecution, in a nutshell, is that accused was apprehended at Gunnu Nallah. Police had prior information. It reached the spot. Accused was carrying bag. It contained Charas. It weighed 1.5 kg. 7. PW-3 Sunil Kumar has admitted in his cross-examination that he left the spot at 1 pm with Rukka. However, IO deposed that he had sent Rukka through private fax, however, neither the number of fax machine is given nor the owner of the fax machine has been examined. 8. PW-7 ASI Kalyan Singh deposed that he received information on 4.10.2013 under Section 42(2) of NDPS Act. However, alleged information was sent on 3.10.2013. According to the IO, he sent the information to the senior officers as required under Section 42(2) through Lady Constable Asha Devi on 3.10.2013. 9. PW-12 Rajesh Kumar, in his cross-examination, has admitted that at a distance of four kms from Gunnu Nallah, villages Rampur, Kandla are situated and there is habitation in those villages. He further admitted that at a distance of 1 ½-2 kms, there is a barrier and locality is there and forest officials used to work there day and night. 10. PW-1 ASI Bhupinder Singh, in his cross-examination, has admitted that the road passing through Gunnu Nallah is a busy road and vehicles pass through this Nallah frequently. He admitted that every bus going towards Tissa passes through Gunnu Nallah and about 5-7 vehicles crossed Gunnu Nallah in his presence till 1 am. Thus, independent witnesses were easily available but the IO has not made any efforts to join the independent witnesses at the time of search and seizure. He admitted that every bus going towards Tissa passes through Gunnu Nallah and about 5-7 vehicles crossed Gunnu Nallah in his presence till 1 am. Thus, independent witnesses were easily available but the IO has not made any efforts to join the independent witnesses at the time of search and seizure. IO has not mentioned in the Rukka that he has received secret information and has complied with mandatory provisions of Section 42 (2) of the Act and further he has not recorded in the statement of the witnesses that lady Constable Asha Devi was with him. 11. Thus, the prosecution has failed to prove its case against the accused. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court . 12. There is no merit in the present appeal and the same is dismissed, so also the pending applications, if any.