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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rajiv Sharma & Ajay Mohan Goel, JJ.
State of Himachal Pradesh – Appellant
Versus
Desh Raj and Another – Respondents
Cr. Appeal No. 4222/2013
Decided On : 25-04-2016
Narcotic Drugs & Psychotropic Substances Act - Acquittal - Sections 20-61-85 - Summary: The court discussed the prosecution's case against the accused under Sections 20-61-85 of the Narcotic Drugs & Psychotropic Substances Act, 1985. The court found that the prosecution failed to prove the case against the accused under Section 20 of the Act. The court highlighted the violation of mandatory provisions of Section 50 of the Act, emphasizing the need for individual communication and consent by each accused under Section 50. The court referenced the judgment in State of Rajasthan v. Parmanand (2014) 5 SCC 345, which emphasized the requirement for individual communication and the absence of a third option under Section 50. The court concluded that the breach of Section 50(1) vitiated the search, leading to the illegal conviction of the accused and their subsequent acquittal.
Fact of the Case:
The prosecution charged the accused with the offence under Sections 20-61-85 of the Narcotic Drugs & Psychotropic Substances Act, 1985, based on the recovery of Charas from the accused. The prosecution presented 14 witnesses to prove its case, and the accused pleaded innocence. The trial court acquitted the accused, leading to the state's appeal.
Finding of the Court:
The court found that the prosecution failed to prove the case under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 against the accused person. The court highlighted the violation of mandatory provisions of Section 50 of the Act, emphasizing the need for individual communication and consent by each accused under Section 50. The court referenced the judgment in State of Rajasthan v. Parmanand (2014) 5 SCC 345, which emphasized the requirement for individual communication and the absence of a third option under Section 50. The court concluded that the breach of Section 50(1) vitiated the search, leading to the illegal conviction of the accused and their subsequent acquittal.
Issues: The issues revolved around the prosecution's failure to prove the case under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 against the accused person and the violation of mandatory provisions of Section 50 of the Act, which led to the illegal conviction of the accused.
Ratio Decidendi: The court emphasized the need for individual communication and consent by each accused under Section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985. The court referenced the judgment in State of Rajasthan v. Parmanand (2014) 5 SCC 345, which highlighted the absence of a third option under Section 50 and the requirement for individual communication of rights.
Final Decision: The court dismissed the appeal, stating that the prosecution failed to prove the case under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 against the accused person. The court highlighted the violation of mandatory provisions of Section 50 of the Act, which vitiated the search and led to the illegal conviction of the accused. The accused were subsequently acquitted, and their bail bonds were discharged.
Rajiv Sharma, J.
1. The State has come in appeal against Judgment dated 22.1.2013 rendered by the learned Special Judge (I), Kangra at Dharamshala (HP) in Sessions Case No. 10-K/VII- 2009, whereby the respondents-accused (hereinafter referred to as 'accused' for convenience sake), who were charged with and tried for offence under Sections 20-61-85 of the Narcotic Drugs & Psychotropic Substances Act, 1985, have been acquitted.
2. Case of the prosecution, in a nutshell, is that on 3.7.2008, ASI Vijay Kumar alongwith other police officials was on patrolling duty at new bus stand, Kangra and on the intervening night of 3.7.2008 and 4.7.2008, at 1.15 AM, they noticed two persons carrying a bag by holding its straps from each side. On seeing the police, they attempted to escape but were overpowered. On inquiry, they disclosed their identity. Bag carried by them was searched. Inside the bag, beneath the clothes, one white coloured polythene envelope wrapped in another envelope, green in colour was found and on checking the said envelope, Charas in the shape of sticks was found. It weighed 1.500 kg. From the recovered Charas, two samples of 25 grams each were separated and put inside a cloth parcel and sealed with two seals each bearing impression ‘K’. Remaining residual quantity weighing 1.450 kg was put in the same polythene envelope and then put in a cloth parcel and sealed with four seal impressions of ‘K’. Sample impression Ext. PW- 14/A was taken on separate cloth piece. Columns No. 1 to 8 of NCB form were filled and ink impression of seal ‘K’ was also taken. Special report was prepared and sent to Superintendent of Police, Kangra. Case property was handed over to SI Piar Chand for resealing and safe custody. Investigation was completed. Challan was put in the Court after completing all the codal formalities.
3. Prosecution has examined as many as 14 witnesses to prove its case against the accused. Accused were also examined under Section 313 CrPC. They pleaded innocence. Learned trial Court acquitted the accused. Hence, this appeal.
4. Mr. V.S. Chauhan, Additional Advocate General has vehemently argued that the prosecution has proved its case against the accused.
5. Mr. Lovneesh Kanwar, Advocate, appointed as legal aid counsel, in this case, has supported Judgment dated 22.1.2013.
6. We have heard the learned counsel for the parties and also gone through the record carefully.
7. PW-1 Piar Chand deposed that he was posted as SI/Additional SHO, Police Station, Kangra. On 3.7.2008, he received a Rukka sent by the then Inspector/ SHO Surinder Sharma. On the basis of same, FIR was registered. He resealed three parcels with seal ‘H’. He also filled in columns No. 9 to 11 of the NCB form.
8. PW-2 ASI Vijay Kumar testified that he was posted as an Investigating Officer at Police Station, Kangra. On 3.7.2008, he alongwith other police party proceeded from Police Station, Kangra under the supervision of Inspector/ SHO Surinder Sharma, for patrolling in Government Vehicle. At about 1.15 AM, on the intervening night of 3.7.2008 and 4.7.2008, they were patrolling from new bus stand Kangra towards Kangra city. They spotted two boys moving on road near Polytechnic Kangra. They were carrying a bag jointly. They attempted to run away after noticing police vehicle. They were overpowered. Their identity was ascertained. Search of bag carried by accused was conducted in his presence. One green coloured polythene was found in the bag in which Charas in the shape of sticks was recovered. It weighed 1.500 kg. Two samples of 25 grams each were separated from the total Charas and sealed in two different parcels and sealed with seal impressions of ‘K’. Remaining Charas alongwith polythene bag was also sealed with four impressions of seal ‘K’. Other articles were also sealed. Case property was produced by the learned Public Prosecutor during the examination of PW-2 Vijay Kumar. In his cross-examination, he has admitted that the Polytechnic was in Kangr
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