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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Sanjay Karol & P.S. Rana, JJ.
State of Himachal Pradesh – Appellant
Versus
Atul Sharma – Respondent
Cr. Appeal No. 246 of 2008
Decided On : 28.2.2015
Narcotic Drugs and Psychotropic Substances Act - Appeal under Section 378 of Code of Criminal Procedure 1973 - Summary of Acts and Sections: Section 22 of Narcotic Drugs and Psychotropic Substances Act - The court discussed the failure to properly appreciate oral and documentary evidence, non-registration of the scooter in the accused's name, non-examination of the accused's cousin, non-production of the original seal, non-examination of another independent witness, non-resealing of parcels, and the recovery of the scooter in a public place. The court emphasized the fatal flaws in the prosecution's case and the lack of proper investigation.
Fact of the Case:
The prosecution alleged that the accused was found in possession of prohibited substances in his shop and on a scooter. The accused denied the charges and did not present any defense evidence.
Finding of the Court:
The court found fatal flaws in the prosecution's case, including the lack of proper evidence and investigation. It emphasized the doubts raised by the testimony of witnesses and the failure to prove key elements of the prosecution's case.
Issues: The issues revolved around the sufficiency and reliability of the evidence presented by the prosecution, including the lack of proper documentation and witness testimony.
Ratio Decidendi: The court emphasized that suspicion, however strong, cannot replace proof, and that when two reasonable conclusions are possible based on the evidence, the appellate court should not disturb the finding of acquittal recorded by the trial court.
Final Decision: The court affirmed the judgment of the trial court, dismissing the appeal filed by the State. It held that the trial court did not commit any miscarriage of justice and properly appreciated the evidence. The contraband was to be forfeited in favor of the State of H.P. in accordance with the law.
P.S. Rana, J.
1. Present appeal is filed by the State under Section 378 of Code of Criminal Procedure 1973 against the judgment passed by learned Additional Sessions Judge Fast Track Court Kanga at Dharamshala under Narcotic Drugs and Psychotropic Substances Act in Sessions Trial No. 9-N/VII of 2007 titled State of Himachal Pradesh vs. Atul Sharma.
BRIEF FACTS OF THE PROSECUTION CASE
2. Brief facts of the case as alleged by prosecution are that on dated 16.9.2006 police officials conducted the search of motor cycle of accused bearing No. PB-08-2906 near his confectionery shop at Jassur and it is further alleged by prosecution that on checking of dickey 610 capsules of Parvon Spas and eight bottles of corex were found. It is alleged by prosecution that secret information was received by SI Bahadur Singh that accused deals in Charas and other offending articles in his shop situated at Jassur. It is alleged by prosecution that report Ext.PW15/A was prepared and same was sent to DSP Nurpur through C. Nirmal Singh the copy of which is Ext.PW2/A. It is alleged by prosecution that ruka Ext.PW2/B was prepared by SI Bahadur Singh and was sent to police station through C. Gurdeep for registration of FIR on the basis of which FIR Ext.PW12/A was registered. It is alleged by prosecution that SI Bahadur Singh joined the witnesses namely Balvinder Singh and Neeraj in police party and proceeded to the shop situated at Jassur. It is alleged by prosecution that accused was informed that he has legal right to be searched before gazetted officer or Magistrate. It is alleged by prosecution that accused consented that he should be searched before the police officials. It is further alleged by prosecution that police officials were also searched and memo Ext.PW1/A was prepared. It is alleged by prosecution that scooter bearing registration No. PB-08-2906 was found parked outside the shop which was also searched after obtaining keys from accused. It is alleged by prosecution that in dickey of scooter 610 capsules of Parvon Spas and 8 bottles of corex were found. It is alleged by prosecution that 10 capsules out of 610 recovered capsules took out for samples purpose and one bottle out of 8 bottles also took out for sample purpose. It is alleged by prosecution that samples were taken and sealed in the parcels. It is alleged by prosecution that NCB forms in triplicate Ext.PW2/C was prepared. It is alleged by prosecution that impression of seal was obtained on a piece of cloth and seal after use was handed over to witness Balvinder Singh. It is alleged by prosecution that thereafter police officials proceeded to police station Nurpur and four parcels along with NCB form in triplicate and impression of seal were deposited with MHC. It is alleged by prosecution that site plan Ext.PW15/B was prepared. It is further alleged by prosecution that scooter was purchased by accused from Ravinder who had purchased it from Pawan Kumar in consideration amount of Rs. 2000/- (Rupees two thousand only). It is alleged by prosecution that registration certificate which was in the name of earlier owner Pawan Kumar was also took into possession vide memo Ext.PW5/B and RC is Ext.PW5/C. It is alleged by prosecution that sample parcels were sent to FSL Junga along with NCB form and impression of seal. It is alleged by prosecution that sample of contents of capsules recovered vide report Ext.PA were found Dextropropoxyphene Hydrochloride which is prohibited substance under ND&PS Act and corex was found containing Codeine Phosphate which is also prohibited under ND&PS Act. It is alleged by prosecution that special report was sent to S.P. from police station which was received by Reader working there and entry was made in relevant register Ext.PW13/D.
3. Learned trial Court framed charge against the accused under Section 22 of Narcotic Drugs and Psychotropic Substance
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