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2015 Supreme(HP) 473
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rajiv Sharma, Sureshwar Thakur, JJ.
Pradeep Kumar & anr. - Appellants
Versus
State of H.P. - Respondent
Cr. Appeal No. 56 of 2014
Decided On : 21.5.2015
For the appellants:Mr. G.R.Palsra, Advocate.
For the respondent: Mr. Ramesh Thakur, Asstt. AG.
The central legal point established in the judgment is the requirement for evidence to inspire confidence, especially in cases involving the possession of contraband.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Conviction under Section 18/20/29-61-85 - Summary of Acts and Sections: The court discussed the compliance with Section 50, the manner of search and seizure, and the safe custody of case property. The judgment highlighted the lack of evidence to prove exclusive and conscious possession of the accused, leading to their acquittal.
Fact of the Case:
The accused were charged with possession of contraband under the Narcotic Drugs and Psychotropic Substances Act. The prosecution presented evidence of the search and seizure of the contraband from the accused. However, the independent witness did not support the prosecution's case, and discrepancies were found in the safe custody of the case property.
Finding of the Court:
The court found that the prosecution failed to prove the exclusive and conscious possession of the accused beyond reasonable doubt. The lack of evidence led to the acquittal of the accused.
Issues: The key issue was the sufficiency of evidence to prove the possession of contraband by the accused.
Ratio Decidendi: The court emphasized the importance of evidence inspiring confidence, especially in cases where independent witnesses are available. The lack of supporting evidence and discrepancies in the safe custody of case property led to the acquittal of the accused.
Final Decision: The appeal was allowed, and the judgment of conviction and sentence was set aside. The accused were acquitted, and any fine amount already deposited was ordered to be refunded. The accused were directed to be released from jail.
Justice Rajiv Sharma, J.
This appeal is instituted against the judgment dated 8/9.1.2014, rendered by the learned Special Judge (III), Mandi, H.P., in Sessions Trial No. 79 of 2010, whereby the appellants-accused (hereinafter referred to as the accused), were charged with and tried for offences punishable under Section 18/20/29-61-85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act). Appellant No. 1 Pardeep Kumar was convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000/- and in default of payment of fine, he was further ordered to undergo simple imprisonment for one year under Section 20 of the Act. He was also sentenced to undergo rigorous imprisonment for a period of 5 years and to pay fine of Rs. 30,000/-and in default of payment of fine, he was further ordered to undergo simple imprisonment for six months under Section 18 of the Act. Appellant No. 2 Rohit Gautam was also sentenced to rigorous imprisonment for a period of 3 years and to pay fine of Rs. 20,000/- and in default of payment of fine, he was further ordered to undergo simple imprisonment for five months under Section 18 of the Act.
2. The case of the prosecution, in a nut shell, is that on 15.8.2010, HC Rajmal (PW-9) alongwith HC Mahant Ram HHC Uday Chand and HHG Mohinder Singh left the Police Station in official vehicle being driven by Const. Himat Ram for nakabandi and routine patrol checking to Larji Dam. At about 5:30 PM, one Maruti Van bearing regn. No. HP-51-3965 came from the Larji side. It was signaled to stop. Accused Pradeep Kumar was driver of the vehicle and another accused Rohit Gautam was sitting on the back seat of the vehicle. I.O asked accused Pradeep Kumar to show the documents. He got frightened and suspicion was raised. The place was isolated and secluded one. One security guard of Larji Dam, namely, Jai Chand PW-8 alongwith HC Mahant Ram PW-1 were associated as witnesses. The accused were informed to exercise his option under Section 50 of the Act. They opted to be searched by the police party. Thereafter, written consent of Accused were taken vide memo Ext. PW-1/A and PW-1/B, respectively. The police officials gave their personal search. During personal search of accused Pradeep, both of his legs were checked and knee caps found on both the legs. On removing the knee cap from the right leg, 5 small packets made of khakhi wrappers were recovered and on removing the knee cap from the left leg two packets made of khakhi wrappers were recovered. On checking five packets, black coloured substance in the shape of sticks was recovered. On smelling it was found to be cannabis. On checking the remaining two packets, black coloured substance in semi-liquid form was found to be opium. Cannabis recovered from the 5 packets was weighed. It was found to be 1 kg 50 gms and opium was found to be 525 gms. PW-9 packed both recovered substances into separate cloth parcels, sealed with seal A at 6 places each and separate seal was also taken on the piece of cloth. During the personal search of accused Rohit Gautam, one envelope wrapped with khakhi wrapper was found kept by him in the sock of his left leg. On checking, it was found containing black coloured substance in the form of semi liquid opium. It was weighed. It weighed 100 gms. of opium. It was packed in a cloth parcel and sealed with seal A at six places. NCB forms Ext. PW-5/C, PW-5/D and PW-5/E in triplicate were prepared and columns 1 to 8 each were filled by PW-9. He embossed seal A on it and took sample seal A on separate cloth Ext. PW-1/C. The seal after its use was handed over to HC Mahant Ram. Parcels alongwith the NCB forms in triplicate, sample seal as well as Maruti Van, its keys and RC were taken into possession vide memo Ext. PW-1/D. Parcel containing 1 kg 50 gms charas was marked as Ext. P-1, parcel containing 525 gms of opium was marked as P-2 and the third parcel con
