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2016 DIGILAW 2707 (HP)

STATE OF HIMACHAL PRADESH v. PREM CHAND

2016-12-21

SANJAY KAROL, VIVEK SINGH THAKUR

body2016
JUDGMENT : Sanjay Karol, J. 1. State has appealed against the judgment dated 20.12.2012, passed by learned Special Judge, Kullu, District Kullu, Himachal Pradesh, in Sessions Trial No. 18 of 2011, titled as State v. Prem Chand, challenging the acquittal of respondent Ravi Kumar (hereinafter referred to as the accused), who stands charged 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 the NDPS Act). 2. It is the case of prosecution that on 28.1.2011, when a police party, comprising of ASI Daya Ram (P.W.-6), HHC Lal Singh (P.W.-5), ASI Ram Swarup and ASI Rajeev Kumar, was present at a place known as Van Bihar Jungle Manali, as about 5.30 p.m., it noticed the accused, carrying a bag, coming from Manali Bus Stand, who on seeing the police party threw the bag and tried to flee away, but on suspicion nabbed. The place being secluded, HHC Lal Singh was sent to bring independent witnesses, who told that nobody was ready to become witness. Thereafter, the Investigating Officer associated HHC Lal Singh and ASI Rajeev Kumar (not examined) as witnesses and searched the bag (Ex.P-2), from which charas, wrapped in polythene (Ex.P-3), was recovered, which on weighment was found to be 700 grams. The contraband substance was repacked and sealed with four seals of seal impression 'A'. NCB form (Ex. P.W.-3/B) was filled up. Ruka (Ex. P.W.-5/C) was prepared and sent through HHC Lal Singh, on the basis of which, FIR No .17, dated 28.1.2011 (Ex. P.W.-6/A), was registered at Police Station, Manali, District Kullu, Himachal Pradesh. On the file being brought back and completion of formalities on the spot, the case property was produced before SHO Om Chand (P.W.-3), who resealed the same with his own seal of impression 'H' and thereafter handed over the same, alongwith other documents, to the MHC of the Police Station, who sent the contraband substance for chemical Analysis. On receipt of report (Ex. P.W.-1/A) of the Chemical Examiner 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. 3. Accused was charged for having committed an offence punishable under the provisions of Section 20 of the Act, to which he did not plead guilty and claimed trial. 4. 3. Accused was charged for having committed an offence punishable under the provisions of Section 20 of the Act, to which he did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as 7 witnesses and statement of the accused, under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he took plea of innocence and false implication. 5. It is a common case of the parties that the accused stands acquitted solely on the basis of decision rendered by this Court in State of H.P. v. Mazar Hussain, 2012 (1) Drugs Cases (Narcotics) 415. 6. Significantly the said decision is based on the earlier decision rendered by this Court in Sunil v. State of H.P. Latest HLJ 2010 (HP) 207, which came up for consideration before a Full Bench of this Court and the view, so taken therein, stands reversed in State of H.P. v. Mehboon Khan, Latest HLJ 2014 (HP) (FB) 900. 7. In any event, in view of acquittal, accused is precluded from assailing the other findings. 8. Hence, learned counsel for the parties are of the view that the matter be remanded back for adjudication afresh, on merits, by the trial Court. Such request is made more so for the reason that any adjudication of the appeal, on merits, by this Court, would foreclose the statutory right of the parties, of assailing any findings, either which way, on merits. 9. As such, the matter is remanded back to the trial Court for decision on merits, keeping in view the latest law on the issue. 10. Parties, through their learned counsel, are directed to appear before the trial Court on 4.1.2017. Record be immediately sent back. Registrar (Judicial) to ensure compliance of the order. 11. No other point urged.