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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RAJIV SHARMA, SURESHWAR THAKUR, JJ.
Raju - Appellant.
Versus
State of Himachal Pradesh - Respondent
Cr.A. No. 247/2011
Decided on : 05-12-2014
Narcotic Drugs - Failure to Comply with Section 42 of NDPS Act, 1985 - [Section 20 of NDPS Act, 1985] - [Section 42 of NDPS Act, 1985] - The prosecution failed to prove the recovery of contraband from the exclusive and conscious possession of the accused. The court highlighted the mandatory compliance of section 42 of the NDPS Act, 1985 and referred to relevant case laws to support its decision.
Fact of the Case:
The accused was charged with and tried for an offence punishable under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution alleged that the accused was found in possession of contraband in a bus. The prosecution presented evidence from multiple witnesses to prove its case.
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. It highlighted the failure to comply with section 42 of the NDPS Act, 1985 and acquitted the accused due to the benefit of doubt.
Issues: The key issue was whether the prosecution could prove the recovery of contraband from the exclusive and conscious possession of the accused, and whether there was compliance with section 42 of the NDPS Act, 1985.
Ratio Decidendi: The court's decision was influenced by the failure of the prosecution to comply with section 42 of the NDPS Act, 1985 and the lack of evidence proving exclusive and conscious possession of the contraband by 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 ordered to be refunded to the accused, and the accused was directed to be released forthwith if not required in any other case.
JUDGMENT :
Justice Rajiv Sharma, Judge.
This appeal is instituted against the judgment dated 21.5.2011 rendered by the Special Judge, Mandi in Sessions Trial No. 16 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 15 years and to pay a fine of Rs. 1,50,000/- and in default of payment of fine, he was further ordered to undergo simple imprisonment for a period of two years.
2. Case of the prosecution, in a nutshell, is that PW-10 Girdhari Lal, Inspector Madan Lal, HHC Ram Lal and HHC Ranvir were present at Naresh Chowk Sundernagar on 23.12.2009 in official vehicle. The vehicle was being driven by Constable Rakesh Kumar. Punjab Roadways bus bearing registration No. PB-12K-4306 came from Manali side. It was going towards Chandigarh. It was signalled to stop. There were 20 passengers in the bus. The person occupying seat No.36 became perplex on seeing the police. He revealed his name as Raju. He was holding a black colour bag in his lap. Witnesses Subhash Chand and Hoshiar Singh were associated. Police party gave its search to the accused. Inspector Madan Lal told the accused that he has a legal right to be searched before Magistrate or gazetted officer. Accused consented to be searched by the police. Memo Ex.PW-1/A was prepared. Search of the accused was undertaken. Cannabis was found kept in two packets inside the bag. Ticket Ex.PW-10/A was also recovered from the accused. It was attested by the conductor. Constable Rakesh Kumar was sent to bring weight and scales. He brought the same. On weighing the contraband was found to be 5 kg 500 grams. The bag was sealed in a parcel with ten impressions of seal =N. NCB-1 from Ex.PW-12/C was filled in triplicate. Sample seal was taken on separate pieces of cloths and one such seal is Ex.PW-11/B. Seal impression was also taken on NCB-1 form. The Seal was handed over to Subhash after use. Seizure memo Ex.PW-1/C was prepared. Rukka Ex.PW-12/A was prepared. It was sent to Police Station through Constable Rakesh Kumar for registration of case. It was handed over to Durga Dass. He recorded FIR Ex.PW-5/A. The contraband was sent to F.S.L., Junga. The report of F.S.L. Ex.PW-11/A 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 14 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. Learned trial Court convicted and sentenced the accused, as noticed hereinabove.
4. Ms. Charu Gupta, learned counsel for the accused has vehemently argued that the prosecution has failed to prove its case against the accused.
5. Mr. Ramesh Thakur, learned 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 Subhash Sharma has deposed that on 23.12.2009, he was travelling in the Punjab Roadways bus bearing registration No.PB-12-4306 from Manali to Sundernagar. He was occupying the last seat of the bus. When the bus reached at Naresh Chowk at about 12 noon, police boarded the bus. The person, who was occupying seat No.36, got frightened on seeing the police. He could not identify him in the court. Police made inquiry from him. He revealed his identity. A bag of black colour was lying beneath the seat of that person. Police inquired from him whether he wanted to be searched by the police or by some higher officer. He consented to be searched by the police vide memo Ex.PW-1/A. Police and witnesses gave their search to the accused. Search of accused was conducted. Two packets were recovered from the bag which
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