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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RAJIV SHARMA, SURESHWAR THAKUR, JJ.
Dalbir Singh - Appellant
Versus
State of Himachal Pradesh - Respondent
Cr.A.No. 237 of 2011
Decided on : 17-11-2014
Narcotic Drugs - Conviction under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - [Section 20 of the NDPS Act, 1985] - The court analyzed the evidence and found that the prosecution failed to prove the case for the offence under section 20 of the NDPS Act, 1985 beyond reasonable doubt. The accused was acquitted of the charge and released.
Fact of the Case:
The accused was apprehended by the police during a Nakka duty and found in possession of charas. The prosecution presented evidence including witness testimonies and seizure memos. The accused denied the charges and presented alibi witnesses who testified that he was traveling on a bus at the time of the alleged offence.
Finding of the Court:
The court found that the prosecution failed to prove the case for the offence under section 20 of the NDPS Act, 1985 beyond reasonable doubt against the accused.
Issues: The main issue was whether the prosecution had proven the accused's possession of contraband beyond reasonable doubt.
Ratio Decidendi: The court found that the prosecution's failure to associate independent witnesses during the apprehension and seizure process, discrepancies in the timing of the rukka, and lack of conclusive evidence led to the benefit of doubt being given to the accused.
Final Decision: The appeal was allowed, the judgment of conviction and sentence was set aside, and the accused was acquitted of the charge. The fine amount, if already deposited, was to be refunded to the accused, and he was to be released from jail.
JUDGMENT :
Rajiv Sharma, J.
1. This appeal is instituted against the judgment dated 28.4.2011 rendered by the Special Judge-II, Solan in Sessions Trial No. 4-S/7 of 2010, whereby the appellant-accused (hereinafter referred to as the ?accused? for convenience sake), who was charged with and tried for offence punishable under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, he was further ordered to undergo imprisonment for a period of six months. Hence, the present appeal.
2. Case of the prosecution, in a nutshell, is that on 24.11.2009 police party was on Nakka duty at place near Deli. Accused was noticed coming on foot from the side of Timber Trail Resort at 3.15 A.M. on 25.11.2009. Accused tried to escape. He was apprehended. He was taken to a place where Nakka was laid. Accused had concealed bag under his left arm pit. Police had suspicion of some incriminating substance, hence, accused was apprised about his right to be searched before Magistrate or Gazetted Officer vide memo Ex.PW-1/A. Accused consented to be searched by the police party vide memo Ex.PW-1/E. The members of police party afforded their personal search to the accused vide memo Ex.PW-1/C. The bag of accused was searched. It was found to be containing charas in the shape of balls and sticks. Weights and scale were brought by PW-3 HC Baggi Ram. The charas so recovered was weighed. It was found to be 3 kgs 800 grams. The charas was sealed in a parcel with seal =H'. The woolen shawl of accused was also sealed in another parcel with seal =H'. Seizure memo Ex.PW-1/G was prepared. NCB forms in triplicate were filled in. Columns No.1 to 8 were filled in by the Investigating Officer. The Investigating Officer prepared rukka Ex.PW-4/A and the same was sent to Police Station through PW-4 Constable Rajesh Kumar. FIR Ex.PW-6/A was registered. Photographs Ex.PW-3/A to Ex.PW-3/J were taken on the spot. The Investigating Officer prepared the spot map. He handed over the parcel containing charas and other documents to S.H.O. PW-6 Govind Ram. He resealed the property with seal =N'. PW-6 Govind Ram filled in columns No. 9 to 11 of NCB form. Special report Ex.PW-5/A was prepared by PW-6 Govind Ram. It was sent to the Superintendent of Police, Solan through PW-5 Constable Kuldeep Singh. The contraband was sent to F.S.L., Junga. The report of F.S.L. Ex.PW-6/G was received. Police investigated the case and the challan was put up in the court after completing all the codal formalities.
3. Prosecution examined as many as 11 witnesses in all to prove its case against the accused. Statement of accused under Section 313 Cr.P.C. was recorded. He has denied the case of the prosecution in entirety. He has produced 4 DWs in support of his defence. Learned trial Court convicted and sentenced the accused, as noticed hereinabove.
4. Mr. Ravinder Thakur, learned counsel for the appellant has vehemently argued that the prosecution has failed to prove its case against the accused.
5. Mr. Ramesh Thakur, leaned Assistant Advocate General has supported the judgment passed by the trial Court.
6. We have heard the learned counsel for the parties and have gone through the record meticulously.
7. PW-1 Ashok Kumar has deposed that he alongwith ASI Ram Lal, Constable Desh Raj, Constable Rajesh Kumar, Constable Gurcharan Singh were on patrolling duty on the intervening night of 24/25.11.2009 at about 3.15 A.M. They were present near village Deli on National Highway-22. In the meantime, a person emerged from the side of Timber Trail Resort. He turned back after noticing the police party. He tried to escape. He was nabbed. He was apprised about his right to be searched either before a Gazetted Officer or a Magistrate or a police party vide Ex.PW-1/A. Accused gave his consent vide Ex.PW-1/B. All the members of the police party afforded t
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