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2014 Supreme(HP) 1681
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RAJIV SHARMA, SURESHWAR THAKUR, JJ.
Karam Singh - Appellant
Versus
State of H.P. - Respondent
Cr.Appeal No.305 of 2011.
Decided on : 26-11-2014.
Advocate Appeared:
For the Appellant :Mr.Harish Sharma, Advocate.
For the Respondent:Mr.P.M.Negi, Deputy Advocate General.
The central legal point established in the judgment is the requirement for strict adherence to legal procedures and documentation in the search, seizure, and recovery of contraband under the NDPS Act.
Headnote:
NDPS Act - Conviction under Section 20 (b) (ii) (c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 - Summary of Acts and Sections: The court discussed the proceedings under Section 20 of the NDPS Act and highlighted the legal provisions related to search, seizure, and recovery of contraband. The court emphasized the importance of proper documentation and the role of the Investigating Officer in maintaining the authenticity of the seized items and the re-sealing process.
Fact of the Case:
The accused was convicted and sentenced under Section 20 of the NDPS Act for possession of charas. The prosecution presented evidence of the police officials' actions leading to the seizure of the contraband. The accused claimed false implication and innocence. The court analyzed the evidence and the conduct of the police officials.
Finding of the Court:
The court found discrepancies in the prosecution's version, including the absence of evidence regarding the stay of police officials at hotels and the authenticity of the re-sealing process. The court concluded that the prosecution failed to establish the accused's guilt beyond reasonable doubt.
Issues: The issues revolved around the authenticity of the police officials' actions, the legality of the search and seizure process, and the credibility of the evidence presented by the prosecution.
Ratio Decidendi: The court emphasized the importance of maintaining accurate records and following legal procedures in search, seizure, and re-sealing of seized items. The discrepancies in the prosecution's version and the lack of corroborative evidence led to the court's decision to acquit the accused.
Final Decision: The appeal was allowed, and the accused was acquitted of the offence charged. The fine amount, if any, deposited by the accused/appellant was ordered to be refunded.
JUDGMENT :
Sureshwar Thakur, J..
The instant appeal is directed against the judgment, rendered on 10th June, 2011, by the learned Special Judge, Mandi, District Mandi, H.P., in Sessions Trial No.55 of 2010, whereby, the accused/appellant has been convicted and sentenced to undergo rigorous imprisonment for twelve years and to pay a fine of Rs.1,20,000/- under Section 20 (b) (ii) (c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein-after referred to as the =NDPS Act') and in default of payment of fine, he has been sentenced to further undergo simple imprisonment for a period of two years.
2. The brief facts of the case are that on 28th July, 2010, Head Constables Laxman Dass, Tek Chand, Constables Vinod Kumar and Jitender Kumar were going towards Karsog to Kotlu. The accused was found coming from Teban when they reached Teban. He was carrying a polythene bag Ext.P-2 in his hand. He got frightened on seeing the police and tried to return. He was apprehended by the police. He revealed his name as Karam Chand son of Budhi Singh on inquiry. The polythene bag smelled of charas and the police became suspicious about the presence of Charas in the polythene bag. HC Laxman Dass informed the accused in writing that he was suspecting the possession of charas by the accused and the search of the accused was conducted. The accused also informed about his legal right to be searched before a Magistrate or a Gazetted Officer. The accused consented to be searched by the police at the spot. Memo Ext.PW-1/A was prepared. It was signed by HC Tek Chand, constable Vinod Kumar and the accused. HC Laxman Dass gave his personal search to the accused in presence of the witnesses. Memo Ext.PW-1/B was prepared. Polythene bag Ext.P-2 was checked and it was found to be containing black coloured substance in the shape of spheres and sticks. The substance was found to be charas on smelling. It was weighed and its weight was found to be 4.850 kilograms. Charas was put in the polythene bag and the bag was wrapped in a piece of cloth. The parcel was sealed with six impressions of seal =D'. Sample seal was taken on separate pieces of cloths and one such impression is Ext.PW-1/C. NCB-1 form Ext.PW-8/A was filled in triplicate and seal impression was taken on NCB-1 form. The seal was handed over to witness Tek Chand after the use. Charas was seized vide seizure memo Ext.PW-1/D, which was signed by Tek Chand and C.Vinod Kumar. Copy of seizure memo was supplied to the accused and his signatures were also obtained. Ruka Ext.PW-14/A was prepared and it was sent to police station through constable Vinod Kumar. C. Vinod Kumar carried it to P.S.Karsog and handed it over to H.C. Gian Chand PW-3. Gian Chand recorded F.I.R. Ext.PW- 3/A and handed over the case file to C. Vinod Kumar with the direction to carry it to the spot. Investigation was carried out by HC. Laxman Dass who prepared site plan Ext.PW-1/B and recorded the statements of witnesses as per their version. The accused was arrested and memo of his arrest Ext.PW-1/E was prepared. The police party went towards P.S.Karsog in the vehicle of H.C. Laxman Dass. C.Vinod Kumar met the police party at Kelo Dhar and handed over the case file to H.C. Laxman Dass. H.C. Laxman Dass recorded his statement and proceeded to police station. The case property, case file and accused were produced before ASI Mohan Lal PW-8 who was working as SHO on that day. ASI Mohan Lal resealed the parcel with three impressions of seal C. He prepared memo of resealing Ext.PW-1/F. Sample seal was taken separately on separate pieces of cloths and one such impression is Ext.PW-1/G. NCB-1 form Ext.PW-8/A was filled in triplicate and seal impression was put on NCB-1 form. Seal was handed over to HC Tek Chand after the use. The case property sealed with three impressions of seal C and six impressions of seal D, NCB-1 form in triplicate, seal impressions C and D were handed over to MHC Gian Chand for depositing these in Malkhana. MHC Gian C
