Back
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Dharam Chand Chaudhary & Chander Bhusan Barowalia, JJ.
State of Himachal Pradesh – Appellant
Versus
Kamlesh Kumar & others – Respondents
Cr. Appeal No. 434 of 2011
Decided On : 28-10-2016
Narcotic Drugs and Psychotropic Substances Act - Possession of Charas - Section 20(b)(ii) (c) read with Section 29 - Summary: The court acquitted accused Kamlesh Kumar and accused Mahender Singh of the charge under Section 20(b)(ii) (c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The court found that the prosecution failed to prove its case against the accused beyond all reasonable doubt. The court emphasized the duty of the prosecution to prove the commission of the offence and the compliance of procedural requirements. The court also highlighted the need for evidence connecting the accused with the offence. The court concluded that the recovery of charas from the exclusive and conscious possession of the accused was not proved. The court upheld the findings of acquittal for accused Swaru Ram, stating that no evidence showed his abetment in the commission of the offence. The court drew a presumption against the accused under Sections 35 and 54 of the Act, and convicted Kamlesh Kumar and Mahender Singh, ordering them to surrender for sentencing.
Fact of the Case:
The accused were found carrying bags containing charas during a police check. The prosecution alleged that the accused were in possession of charas and facilitated its trafficking, leading to charges under the Narcotic Drugs and Psychotropic Substances Act, 1985. The police party left for a check at midnight and found the accused carrying bags with charas. The accused were arrested, and the case property was produced before the police station. The accused pleaded not guilty and claimed trial. The prosecution produced oral and documentary evidence, but the court found the evidence insufficient to prove the case beyond all reasonable doubt.
Finding of the Court:
The court found that the prosecution failed to prove its case against the accused beyond all reasonable doubt. The court emphasized the duty of the prosecution to prove the commission of the offence and the compliance of procedural requirements. The court also highlighted the need for evidence connecting the accused with the offence. The court concluded that the recovery of charas from the exclusive and conscious possession of the accused was not proved. The court upheld the findings of acquittal for accused Swaru Ram, stating that no evidence showed his abetment in the commission of the offence. The court drew a presumption against the accused under Sections 35 and 54 of the Act, and convicted Kamlesh Kumar and Mahender Singh, ordering them to surrender for sentencing.
Issues: The main issue was whether the prosecution proved its case against the accused beyond all reasonable doubt. The court also considered the compliance of procedural requirements and the evidence connecting the accused with the offence.
Ratio Decidendi: The court emphasized the duty of the prosecution to prove the commission of the offence and the compliance of procedural requirements. The court highlighted the need for evidence connecting the accused with the offence. The court drew a presumption against the accused under Sections 35 and 54 of the Act, and convicted Kamlesh Kumar and Mahender Singh, ordering them to surrender for sentencing.
Final Decision: The court acquitted accused Swaru Ram and convicted Kamlesh Kumar and Mahender Singh under the Narcotic Drugs and Psychotropic Substances Act, 1985. The court ordered Kamlesh Kumar and Mahender Singh to surrender for sentencing.
Dharam Chand Chaudhary, J.
The learned Special Judge, (Fast Track Court) Kullu, Himachal Pradesh, has acquitted accused Kamlesh Kumar and accused Mahender Singh of the charge under Section 20(b)(ii) (c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’ in short), whereas their co-accused Swaru Ram under Section 20(b)(ii) (c) read with Section 29 of the Act, vide impugned judgment dated 17.5.2011, passed in sessions trial No. 43 of 2010.
2. The allegations against accused Kamlesh Kumar, in a nut shell, are that on 22.3.2010, around 2:00 AM (midnight) at Khalara-nullah, District Kullu, during the course of checking of the bag he was carrying with him, charas weighing 2.500 kgs was recovered there from him whereas charas weighing 2.200 kgs from his co-accused Mahender Singh. Since accused Kamlesh allegedly was found to be in the possession of charas whereas facilitated the illicit trafficking of charas by his co-accused Mahender Singh, therefore stated to have committed an offence punishable under Section 20(b)(ii) (c) read with Section 29 of the Act. Similarly, charge against Mahender Singh is that he was not only found to be in possession of charas weighing 2.200 kgs but also facilitated the illicit trafficking of charas weighing 2.500 kgs. by his co-accused Kamlesh Kumar and thereby he has also committed an offence punishable under Section 20(b)(ii) (c) read with Section 29 of the Act. If coming to the allegations against their co-accused Swaru Ram, he allegedly facilitated the transportation of 2.500 kgs charas by accused Kamlesh Kumar and 2.200 kgs. of charas by accused Mahender Singh and thereby abetted the commission of offence by his co-accused and committed the offence punishable under Section 20(b)(ii) (c) read with Section 29 of the Act.
3. The record reveals that on 22.3.2010 around 1:00 AM in the midnight, a police party headed by PW-4 ASI Hem Raj of Police Station Sadar Kullu left towards village Bhadai on Lag Valley road for laying naka to detect the crimes. Rapat Ext. PW- 2/A was entered in rapat Rojnamcha by PW-2 Constable Narender. The other members of the raiding party were PW-3 Const. Krishan Chand, HC Parmender Singh and Const. Khoob Ram. The official vehicle No. HP-34-A-9986 was being driven by HHG Aadh Nath. At about 2:00 AM, when the police party was present at Khalara nullah bridge, three persons were spotted coming down from village Bhadai towards Kullu side. They were seen with the help of search light. Accused Kamlesh and accused Mahender Singh were found to be carrying bags on their back whereas accused Swaru Ram was empty handed. They were spotted by the police and their antecedents ascertained. Accused Kamlesh Kumar was carrying military coloured bag with him whereas accused Mahender Singh was carrying cream coloured bag. The I.O. PW-4 ASI Hem Raj suspected that the accused might be carrying some narcotic drugs or psychotropic substance with them, therefore, the option was given to them for being searched either before a Magistrate or a Gazetted Officer, vide memos Ext. PW-3/A, PW-3/B and PW-3/C. They allegedly opted for being searched by the police officials present on the spot. On this, the I.O. first offered his own search vide memo Ext. D-1, however, nothing incriminating was recovered from him. Being odd hours and the place an isolated one, it was not possible to associate someone as independent witness, therefore, I.O. PW-4 ASI Hem Raj has associated Krishan Chand (PW-3) and HC Parminder as witnesses and conducted personal search of all the three accused. Nothing incriminating was found in their possession during their personal search. However, during the course of search of the bag allegedly military coloured, being carried by accused Kamlesh Kumar, one yellow coloured polythene bag was found kept therein. On search of the polythene bag, charas in the shape of sticks was found kept therein. The recovered charas was we
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
