The court emphasized the importance of proving the case beyond reasonable doubt and highlighted the significance of possession in convicting under the NDPS Act.

JUDGMENT :

Rajiv Sharma, J.

This appeal is instituted against the judgment dated 26.3.2011, rendered by the learned Special Judge(II), Kinnaur at Rampur, H.P. in RBT No. 20-AR/3 of 2010, whereby the appellant-accused (hereinafter referred to as the accused) who was charged with and tried for offence under Section 20/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, was convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/- and in default of payment of fine to undergo simple imprisonment for two years. Tara Chand was acquitted, hence this appeal.

2. The case of the prosecution, in a nut shell, is that on 13.12.2008, S.I Gurbachan Singh, P.S.Anni alongwith ASI Ludar Singh, Constable Hari Singh and Constable Bhoop Singh left Police Station Anni in connection with investigation of case FIR No. 119/08 dated 12.12.2008 and also for detection of cases under Excise Act, NDPS Act and Forest Act and for checking of traffic towards Swad, Kanda Aran side. At about 2 pm accused Prakash Chand came from Swad side holding a bag on his back. He stopped at a distance of 25 meters. He turned back and tried to escape. He was apprehended. S.I. Gurbachan Singh informed the accused that he intended to conduct his search and also apprised him of his right of being searched in the presence of the Magistrate or a gazetted officer. The accused opted to be searched by the police on the spot. S.I. Gurbachan Singh alongwith ASI Ludar Singh and Constable Bhoop singh were joined by him as witnesses. They gave their personal search to the accused. The bag was checked. It contained 6 kgs 250 gms charas. The sampling and seizure procedure was completed and NCB forms in triplicate were filled in. The 'rukka’ was sent to PS Anni through Constable Hari Singh on the basis of which FIR No. 121/2008 was registered. The accused was arrested the case property was deposited in the malkhana. The case was investigated and challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 13 witnesses to prove its case. The accused persons were also examined under Section 313 Cr.P.C to which they pleaded not guilty. Accused also examined two witnesses in defence. The learned Trial Court convicted accused Prakash Chand, as stated hereinabove.

4. Mr. Manoj Pathak, Advocate, for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. According to him, no independent witness was associated by the prosecution, though available. On the other hand, Mr. M.A.Khan, learned Addl. Advocate General, has supported the judgment dated 26.3.2011, of the learned trial Court.

5. We have heard learned counsel for the parties and gone through the records of the case meticulously.

6. PW-1, ASI Luder Singh, deposed that on 13.12.2008, he accompanied S.I. Gurbachan Singh along with Constable Hari Singh and Bhoop Singh to Nagan. One person was apprehended who was carrying one Pithu and coming from Swad side towards Nagan. The accused was given option to be searched either before Magistrate or gazetted officer. Accused opted to be searched by the police vide memorandum Ext. PW- 1/A. Constable Hari Singh was deputed to procure some independent witnesses but Constable Hari Singh came after some time as no independent witness was found to be associated. S.I. Gurbachan Singh after associating the official witnesses offered his search to accused Prakash Chand vide memorandum Ext. PW-1/B. The search of Pithu was carried out. It contained 6 kg 250 gms charas. Out of this contraband, two samples of 25 gms each were drawn separately and the remaining charas was put into the same polythene packet and pithu bag which was put into a separate sealed packet as P1 duly sealed with seal 'C’ in the separate packet. NCB forms were filled in. The sample charas and remaining charas was taken into possession vide seizure memo Ext. PW-1/C. Constable Bhoop Singh and accused Prak