The significance of testimonies, the omission to associate independent witnesses, and the contradiction in the timing of dispatch of the rukka influenced the court's decision to acquit the accused.

Sureshwar Thakur, Judge

The instant appeal is directed against the impugned judgment rendered on 21.4.2012, by the learned Special Judge, Chamba Division Chamba, Himachal Pradesh in Sessions trial No. 47 of 2010, whereby, the learned trial Court convicted and sentenced the accused/appellant to undergo rigorous imprisonment for a period of 10 years and to pay a fine in a sum of Rs.1,00,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one year for the commission of offence punishable under Section 20 of the NDPS Act.

2. Brief facts of the case are that on 17.10.2010 ASI Amar Nath (PW-10) alongwith other police officials HC Deva Nand (PW-1), Constable Som Prakash (PW-2), Constable Sandeep Kumar (PW-3) and SPO Jamaldeen was on patrolling towards Madhuwad, Nakrod and Dam site. They laid Naka near Pangola Nallah. At about 7.45 p.m.. the accused/appellant was noticed to be coming from village Himgiri with a bag carrying on his shoulder. On seeing the police, he tried to return back. The accused was asked to stop, however he did not stop and came to be nabbed by the police at the spot. On inquiry, he disclosed his name to be Gulam Rasul S/o Shri Fateh Mohammad alias Chunni. Since the place of occurrence was a secluded place and no independent witness was available at that odd hour, ASI Amar Nath (PW-10) and other police officials gave their personal search to the accused including the I.O kit. A memo in this behalf is comprised in Ex. PW-1/B. PW-10 informed the accused of his legal right to be searched in the presence of a Gazetted officer or a Magistrate vide memo Ex. PW-1/C, the accused opted to be searched by the police party. The bag carried by the accused was of black and blue in colour and words “solvtions Dynesty” were inscribed on it. On checking the bag, there was another green bag in it. On opening the said green bag it was found to be containing 2Kg. 500 grams charas in the shape of Batties. The recovered charas was taken into possession vide memo Ex. PW-1/D. Thereafter the contraband was put back in the same cloth bag and was sealed in a cloth parcel bearing 5 seals of seal impression ‘T’. The Investigating Officer thereafter completed the codal formalities of having filled in the NCB forms, taking the specimen seals on a piece of cloth and preparing the seizure memo. PW-3 Sandeep Kumar was sent alongwith the Rukka Ex. PW- 10/A for registration of an FIR to the Police Station, Tissa. One copy of Rukka was also sent to the SP Chamba through C. Som Parkash. The recovered charas was produced by the IO before the Additional SHO Mohinder Singh (PW-9), who resealed the parcel EX. P-1 with five seals of seal ‘D”. On 19.10.2010 the MHC Ravinder Singh (PW-8) had sent the seized contraband to the FSL, through Constable Ravinder Kumar. Report of FSL is comprised in Ex. PW-11/A. On conclusion of the investigation, into the offence, allegedly committed by the accused, final report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court.

3. The accused was charged for his having committed offence punishable under Section 20 of the NDPS Act, by the learned trial Court to which he pleaded not guilty and claimed trial.

4. In order to prove its case, the prosecution examined 11 witnesses. On closure of prosecution evidence, the statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded in which he pleaded innocence and claimed false implication. He chose not to lead evidence in defence.

5. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused.

6. The accused/appellant is aggrieved by the judgment of conviction, recorded by the learned trial Court. The learned counsel appearing for the appellant has concertedly and vigorously contended, that, the findings of conviction, recorded by the learned trial Court are not based on a proper appreciation of evidence on record