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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Hon'ble Judges: Kuldip Singh, J.
Surender Kumar and Anr. – Appellants
Vs.
State of H.P. – Respondent
Decided On: 30.05.2008
Narcotic Drugs & Psychotropic Substances Act - Conviction under Section 15 - 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 - Summary of Acts and Sections: Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 - The judgment discusses the mandatory requirements of Section 42 of the Act, contradictions in the prosecution's case, and the failure to prove the case beyond reasonable doubt.
Fact of the Case:
The appellants were convicted for possession of poppy husk and poppy seeds. The prosecution alleged that the appellants were found in exclusive possession of the contraband at a specific location. The appellants denied the allegations and claimed innocence.
Finding of the Court:
The court found that the prosecution failed to prove the case beyond reasonable doubt. It highlighted contradictions in the prosecution's case, including discrepancies in the timing of events, lack of corroboration among witnesses, and the unreliability of the report under Section 42 of the Act. The court concluded that the judgment of conviction and sentence was not sustainable and acquitted the appellants.
Issues: The key issues revolved around the reliability of the prosecution's case, compliance with mandatory requirements under Section 42 of the Act, contradictions in witness testimonies, and the failure to establish guilt beyond reasonable doubt.
Ratio Decidendi: The court emphasized the mandatory nature of compliance with Section 42 of the Act, the need for corroboration among witnesses, and the requirement to prove guilt beyond reasonable doubt. It also highlighted the significance of addressing contradictions and discrepancies in the prosecution's case.
Final Decision: The appeal was allowed, and the judgment of conviction and sentence was set aside. The appellants were acquitted and set at liberty forthwith.
Kuldip Singh, J.
1. This appeal is directed against the judgment dated 9.8.2007 passed by learned Additional Sessions Judge, Sirmaur District at Nahan in Sessions Trial No. 5-N/7 of 2003 whereby the appellants have been convicted for offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'the Act') and each appellant has been sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 20,000 and in default of payment of fine each appellant shall further undergo imprisonment for a period of one year.
2. The prosecution case, in brief, is that on the intervening night on 17/18.8.2002 at about 3.50 a.m. the appellants/accused were found in exclusive and conscious possession of 30 Kgs. poppy husk and 90 Kgs. poppy seeds at a distance of about 2 kilometers from Khajurna Bridge near Nahan. It has been alleged that on 17.8.2002 at about 7.15 p.m. PW-10 Inspector Kishan Singh, Incharge CIA Nahan, PW-6 HC Lajja Ram, PW-3 Constable Azam Ali, Constable Saleem Khan and Constable Suresh Kumar left for traffic checking on a Government Gypsy and two scooters. On 18.2.2002 at about 1.10 a.m. they reached Khajurna Bridge and laid a Naka and at that time a secret information was received that accused Surender Kumar along with another person indulge in smuggling of poppy husk to Haryana via Khajurna Bridge, both of them were smuggling the contraband on that night and if the informer was provided a vehicle he could get them apprehended along with the contraband. This information was reduced into writing Ext.PW-9/A under Section 42 of the Act and was sent to Superintendent of Police through PW-3 Azam Ali, he was also directed to arrange for a vehicle and bring the vehicle along with him. PW-3 Azam Ali brought the vehicle bearing No. HP-18-4739 at about 2.30 a.m. which was driven by PW-1 Nitin Gupta. This vehicle was sent towards Paonta Sahib along with the informer and the Naka was laid on Saketi Road at a distance of about 2 Kilometers from Khajurna Bridge. At about 3.30 a.m. vehicle No. HP-18-4739 came with two persons besides the driver. This vehicle was intercepted at the Naka and on inquiry the persons sitting in the vehicle disclosed their names as Surender Kumar and Ravi Kant, accused. The search of the vehicle was conducted and one jute bag, two plastic bags, one cement bag and one plastic bag were found in the vehicle. The consent memos Ext.PW-6/A, Ext.PW-6/B were obtained from the accused to search the aforesaid bags and thereafter the search of the bags was conducted. On search, 30 packets containing poppy husk which were packed in plastic bags were recovered from the jute bag and the poppy seeds were found in the remaining bags.
3. There was no shop or house or light at the place of Naka, therefore, the vehicle along with the case property and the accused were taken to CIA office Nahan where the contraband so recovered was weighed and 30 packets were found each containing one kg. of poppy husk. In the remaining bags 90 Kgs. of poppy seed was found. Three samples of 500 grams each were separated from the poppy husk so recovered and four samples of 500 grams each were separated from poppy seed so recovered. They were put into separate parcels and thereafter sample parcels and the bags containing bulk poppy husk and poppy seeds were sealed with three seals of seal impression 'T' and were taken into possession vide memo Ext.PW-6/E in the presence of PW-1 Nitin Kumar and PW-6 Lajja Ram and Ashok Kumar. The copy of recovery memo was given to accused and specimen impressions of seal used were taken separately which are Ext.PW-6/C and Ext.PW-6/D and the seal after use was handed over to PW-1 Nitin Kumar. Ext.PW-10/A Ruka was prepared and was sent to Police Station through PW-3 Azam Ali and then F.I.R. Ext.PW-10/D was registered. NCB forms were prepared in triplicate and specimen of seal was also affixed on the same by PW-10 Inspector Kishan Singh. The si
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