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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Before
The Hon’ble Mr. Justice Surinder Singh, J.
Cr. Appeal No. 529 of 2010 Date of decision: 19. 5. 2011
Mohammad Ashraf Versus State of H.P
Narcotic Drugs - Violation of Section 50 - [Narcotic Drugs] - [Narcotic Drugs and Psychotropic Substances Act, 1985, Section 20, Section 50, Section 52-A] - The court discussed the violation of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which applies to personal search of a person. The judgment referenced State of Punjab versus Baldev Singh, Kalema Tumba versus State of Maharashtra, and Gurbax Singh versus State of Haryana to establish that the search under Section 50 applies to a person and not to premises, vehicles, or articles. The court also referred to Vijaysinh Chandubha Jadeja versus State of Gujarat to emphasize the mandatory nature of compliance with Section 50. The judgment highlighted the lack of compliance with Section 50 in the case and concluded that the accused deserved to be acquitted on this ground alone. Additionally, the court discussed the lack of legal evidence to connect the accused with the offense charged, emphasizing the need for the prosecution to prove the integrity of the case property and the handling of samples. The judgment cited The State of Rajasthan versus Daulat Ram to support the entitlement of the accused to the benefit of doubt due to the prosecution's failure to prove the case beyond reasonable doubt.
Fact of the Case:
The accused was convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for allegedly possessing cannabis plant resin. The police conducted a search and recovered the contraband from the accused. The accused denied the circumstances and alleged false implication. The trial court disbelieved the defense and held the accused guilty.
Finding of the Court:
The court found that there was a violation of Section 50 of the Act in the personal search of the accused, and there was a lack of legal evidence to connect the accused with the offense charged. As a result, the conviction and sentence passed by the trial court were deemed unsustainable, and the appellant was acquitted of the charge.
Issues: Violation of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and lack of legal evidence to connect the accused with the offense charged.
Ratio Decidendi: The court emphasized the mandatory nature of compliance with Section 50 of the Act in personal searches and the prosecution's obligation to prove the integrity of the case property and the handling of samples. The judgment highlighted the entitlement of the accused to the benefit of doubt in the absence of proof beyond reasonable doubt by the prosecution.
Final Decision: The conviction and sentence passed by the trial court were set aside, and the appellant was acquitted of the charge.
Surinder Singh, J. (Oral) The appellant hereinafter referred to as ‘the accused’ was convicted by the learned trial Court under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short “the Act” for allegedly keeping in his possession resin content of 80.5 grams of cannabis plant (charas) in the recovered stuff of 350 grams, as such he was sentenced to undergo rigorous imprisonment for a period of five months and to pay a fine of Rs. 5,000/- and in default of payment of fine, he was further ordered to undergo simple imprisonment of one month.
2.Since the accused had already in custody for more than six months therefore, the period already undergone by him was ordered to be set-off under Section 428 of the Code of Criminal Procedure.
3.The accused felt aggrieved and dissatisfied by the impugned judgment of conviction and sentence, as such directed the present appeal.
4. In brief, the prosecution case as emerges from the evidence on record can be put thus. On 4.12.2009 at about 4.45 p.m. PW8 S.I. Liaq Ram Sasodia was heading a police patrol-party consisting of PW1 ASI Bahadur Singh, PW2 Nand Lal, PW3 Bhupinder Singh and constables Kulbir and Mohinder. Police patrol party travelled in the Government vehicle towards Sai Road, Baddi. Its entry was made in the rapat Ext. PW6/F and started checking the vehicles. In the meantime, accused came on a motor cycle bearing registration No. HP12-C-4312, from the side of Amarwati Apartments. He was also stopped. On seeing the police present on the spot, he got perplexed which raised suspicion. Getting suspicious PW8 S.I. Liaq Ram conducted the search and recovered a packet from the jacket worn by the accused which contained 350 grams of stuff in the shape of sticks, wrapped in a polythene packet. On having identified the substance as charas, a memo Ext. PW1 /A was prepared. Police also recovered the weights of 10 gm. and 20 gm along with scale from the possession of the accused. The whole recovered stuff was sealed in one packet at five places with seal producing the impression of English letter ‘P’. Weights and scale were also separately sealed with the same seal at five places.
5.NCB forms in triplicate were filled in and facsimile of the seal was also affixed on each of the forms aforesaid against relevant column. The sample of seal was taken on three pieces of cloth one of which is Ext. PW1 /B and the seal after its use was said to have entrusted to PW1 ASI Bahadur Singh. To this effect memo Ext. PW1 /C was prepared.
6.Motor Cycle along with its key and documents were also seized vide memo Ext. PW1 /C. Relevant columns of the NCB forms were also filled in.
7.Ruka Ext. PW3/A was sent to the Police Station through PW3 Constable Bhupinder Singh for registration of the case. PW6 MHC Achhar Singh registered the FIR Ext. PW6/A. PW8 aforesaid prepared the site plan Ext. PW8/A and arrested the accused. Grounds of arrest were informed to him.
8.Case property was produced before PW8 SI Dharam Singh for re-sealing to which he re-sealed with the seal impression “T” and to this effect issued the certificate Ext. PW7/D. Thereafter he deposited the case property in the Malkhana with PW6 MHC Achhar Singh.
9.The case property was also produced before the JMIC Nalagarh, who issued the certificate Ext.PW8/C. PW7 S.I. Dharam Singh also prepared the special report Ext. PW4/A which was sent to the officer superior, within the statutory period.
10. On 7.12.2009, the entire recovered stuff was sent to Forensic Science Laboratory for its analysis through constable PW5 Sher Singh which was deposited by him on the same day.On analysis, it was found having contained quantity of resin to the extent of 22.03 W/W which was found to be the extract of cannabis and sample of charas. The report is Ext. PW8/D.
11. After completing the investigation, challan was presented in the court for the trial of the accused.
12. Finding a prima facie case against the accused, he was accordingly charge sheeted for
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