Judicial Analysis Court Copy Headnote Facts Arguments Court observation

HIMACHAL PRADESH HIGH COURT
Tarlok Singh Chauhan and Ranjan Sharma, JJ.
Yash Pal alias Sonu – Appellant
versus
State of Himachal Pradesh – Respondent
Cr. A. No.67 of 2021
Decided on 14.9.2023

Advocates:
Counsel for the Parties:
For the Appellant:Mr. N. S. Chandel, Sr. Advocate with Mr. Pranav Sharma, Advocate
For the Respondent: Mr. I. N. Mehta, Mr. Y. W. Chauhan, Sr. Addl. A.Gs. with Ms. Sharmila Patial, Addl. A.G. and Mr. J. S. Guleria, Dy. A.G.

IMPORTANT POINT
Unless and until prosecution proves its case beyond reasonable doubt appellant could not have been convicted.

Headnote:
Narcotic Dugs and Psychotropic Substances Act, 1985 – Sections 15, 42 and 52A – Seizure of Poppy Husk – Conviction and sentence – Case property which was in eight parcels did not even contain five court seal impressions that had been fixed by court at the time of drawing representative samples under Section 52A of Act – It was incumbent upon prosecution to connect contraband with the case and contraband ought to have had signature of witnesses, appellant, I.O. and should have also contained FIR number – In instant case, no signatures either of witnesses, appellant or even I.O. were taken – There is non – compliance of provisions of Section 42 – Case property was not sealed at spot and if sealed, was not the same as produced before Court – There are major contradictions in story of prosecution which go to root of case – Unless and until prosecution proves its case beyond reasonable doubt appellant could not have been convicted – Judgment of conviction and sentence, as recorded by Special Judge, set aside. (Paras 20, 21, 25, 33,
38, 41, 45 and 49)
Result: Appeal allowed. Appellant acquitted.

JUDGMENT

Tarlok Singh Chauhan, J.—The appellant has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- for the commission of offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘ND&PS Act’) and in default of payment of fine, to further undergo simple imprisonment for a period of one year and aggrieved thereby has filed the instant appeal.

2. As per the prosecution, the brief facts of the case are that on 04.12.2017 HC Brij Bhushan alongwith HHC Suresh Kumar, C. Amit Kumar, C. Suresh Kumar and C. Saurav Sharma, was on patrolling duty in connection with Gambling, ND&PS and Excise crime detection in a private vehicle at village Basoli. At about 04.30 p.m., when the police party was present at place Madanpur Basoli, near GPS Basoll, then HC Brij Bhushan received a secret information that one Sh. Yashpal @ Sonu s/o Ramesh Chand Dhiman, resident of village Basoli has kept Poppy Husk (Churapost) in his cowshed and indulged in selling of the same to his customers.

3. Upon this information, HC Birj Bhushan prepared compliance report u/s 42(2) of ND&PS Act and handed over it to C. Saurav Sharma for delivering it to Dy. SP, HQ Una. HC Brij Bhushan telephonically contacted Up-Pradhan Gurdev Singh and disclosed him about secret information, who told him that he will meet within 15-20 minutes. HC Brij Bhushan also asked him to bring some reputed person of the locality with him.

4. Up-Pradhan Gurdev Singh and Mahinder Pal reached at Basoli Bridge on a scooty and from there police party along with independent witnesses proceeded towards the spot. On reaching at the spot i.e. cowshed Ramesh Chand was found present there, who disclosed that Yash Pal @ Sonu is out of station and therefore contacted him through mobile of Ramesh Chand who disclosed that he had gone to District Una in connection with unloading his truck. HC Brij Bhushan apprised him about the secret information and asked him to join the search however he showed his inability to come to the spot. Ramesh Chand was also apprised about the secret information as such the cowshed in question is required to be searched. In the meantime C. Saurav Sharma also reached at the spot.

5. Before conducting the search of cowshed, police party alongwith independent witnesses gave their search to Sh. Ramesh Chand father of appellant and memo was prepared in this regard. Thereafter, search of the cowshed was conducted and no incriminating material was recovered from two rooms of the cowshed. The father of the appellant Ramesh Chand was not handing over the key of locked middle room of cowshed. The Superintendent of Police, Una was informed about the facts of case and accordingly Dy. S.P. (HQ) Una reached at the spot and HC Brij Bhushan apprised him about the situation. Upon this Ramesh Chand telephonically asked appellant Yash Pal @ Sonu about the key of the locked room of cowshed, who brought the key and handed over it to HC Brij Bhushan in the presence of witnesses and the lock was opened and during the search of room two sacks containing some substance were found in the left front corner of that room.

6. On opening first sack 34 polythene packets containing churapost (poppy Husk) were found in it and on weighing these were found to be 34 kg 792 grams. On opening second sack, 40 polythene packets were found in it and on opening these packets 39 kg 308 grams of churapost were found. During, further search 121 polythene packets containing same substance were recovered from the bed-box lying in the same room. The total weight of the poppy husk recovered during the search of the said cowshed was found to be 217 kg 53 grams. During the search one electronic balance, some empty polythene bags and one iron-pan were also recovered from the same room, which were kept behind the bed-box. On weighing empty polythene bags, these were found to be 1 Kg. The electronic weighing machine, iron-p