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2012 Supreme(HP) 666
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
R.B. Misra & Surinder Singh, JJ
State of Himachal Pradesh - Appellant
Versus
Gurmeet Singh - Respondent
Cr. Appeal No. 20/2008
Decided on : 11.12.2012
For the Appellant:Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Ramesh Thakur, Assistant Advocate General.
For the respondent: Ms. Soma Thakur, Amicus curiae.
The judgment emphasizes the importance of conclusive evidence and adherence to legal definitions in drug-related cases.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Possession of Poppy Straw - Section 15 of Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 2(xviii) and Section 2(xvii) of the Act
Fact of the Case:
The accused was acquitted for the offence of possessing 5 kg of poppy straw without permit. The State appealed the acquittal.
Finding of the Court:
The court found discrepancies in the evidence, including contradictions in witness statements and uncertainty regarding the identity of the case property. The chemical examiner's report did not conclusively prove the substance to be poppy straw as defined by the Act.
Issues: Discrepancies in evidence, identity of case property, and interpretation of the definition of poppy straw under the Act.
Ratio Decidendi: The court concluded that the evidence did not provide grounds for converting the accused's acquittal into conviction due to the discrepancies and lack of conclusive proof.
Final Decision: The appeal was dismissed, and the accused was discharged of his bail bonds.
Surinder Singh, J (Oral):
Respondent hereinafter referred to as ‘the accused was charge-sheeted, tried and acquitted for the offence punishable under Section 15 of Narcotic Drugs and Psychotropic Substances Act, 1985, in short “the Act” for allegedly keeping in his possession 5 kg of poppy straw in the bag on his scooter bearing registration No.PB-16-A 8447. The acquittal has been challenged by the State in the present appeal.
2. Heard and gone through the record.
3. In short, prosecution case, as emerges from the evidence on record, can be stated thus. On 24.6.2005 ASI Dharam Dass was heading a police patrol party and had put a naka at Dabhota Barrier for traffic checking. Around 6.30 p.m., scooter aforesaid came from Nalagarh side being driven by the accused. It was signaled to stop but the accused tried to escape, however, he was apprehended by the police party. Accused was carrying white coloured boru (bag) kept on the foot rest of the Scooter. It was searched in the presence of Chaman Lal and Dinesh Jain witnesses. The boru is found to have contained poppy straw (bhuki) of 5 kg without permit. Out of the recovered stuff, two samples of 200 grams each were separated for chemical analysis. Each of the sample parcels were sealed with seal impression ‘A’. NCB forms in triplicate were also filled in on the spot. Facsimile of the seal was taken on a piece of cloth Ext. PW1/C. Seal after its use were handed over to witness Chaman Lal. Case property along with scooter in question was taken into possession vide recovery memo Ext. PW1/A. The spot map Ext. PW1/B of the place of the alleged incident was also prepared on the spot. Ruka was sent for the registration of the case on the basis of which present FIR has been registered. The accused was arrested and grounds of arrest were informed to him in writing Ext. PW1/D.
4. Special report of search and seizure was sent to the official superior within the statutory period. Case property was deposited in the police station with PW6 MHC Kamal Nain on the same day by ASI Dharam Dass.
5. On 25.6.2005 one sample parcel marked as S1 which was also marked as P1 along with two samples of NCB forms, sample of seal, recovery memo and FIR was sent to CTL Kandaghat through HHC Basu Dev vide RC No. 69 of 2005. On its deposit, receipt was obtained on the back of the RC and it was handed over to MHC aforesaid.
6. On 29.6.2005, an application was also moved to the Additional Chief Judicial Magistrate, Nalagarh for certifying the seals on the bulk parcel and sample parcel. On the application, the Magistrate passed order Ext. PY.
7. On examination of the sample parcel in the Laboratory, it tested positive for meconic acid and morphine. On the basis of this result, the Examiner was of the opinion that the exhibit contained “poppy -husk”.
8. Police recorded the statements of the witnesses and after completing investigation, challan was presented in the court for the trial of the accused to which he pleaded not guilty and claimed trial.
9. To prove its case, prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure. The circumstances which were found attendant upon him were put to him to which he denied.
10. When called upon to enter into his defence, no evidence in defence was examined.
11. At the end of the trial, accused was acquitted on the glaring contradictions appearing in the evidence and the identity of the case property.
12. At the very outset, we would like to say that ASI Dharam Dass was not examined despite various repeated opportunity accorded to the prosecution. However, PW8 Constable Ashwani Kumar supported the prosecution case with respect to the recovery and specifically stated that boru Ext. P2 in which Bhuki Ext.P3 was recovered and the sample parcel shown to him during the trial was identified as Ext.P1. There is missing link with respect to the deposit of the case property with MHC by not examining ASI Dharam Dass af
