The prosecution must establish the accused's conscious and exclusive possession of illegal substances to secure a conviction under Section 20 of the ND & PS Act.

JUDGMENT :

Rajiv Sharma, J.

This appeal is instituted at the instance of the State against the judgment dated 30.9.2008, rendered by the learned Sessions Judge, Solan, H.P., in case No. 4-S/7 of 2008, whereby the respondent-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), has been acquitted.

2. The case of the prosecution, in a nut shell, is that on 9.12.2007 at around 10:50 PM, Dharampur police had laid nakka in front of the Police Station for checking of the vehicles. The Nakka party comprised of Insp./SHO Brijesh Sood, SI Mehar Chand, ASI Ram Chand and others. At about 12:15 AM, one HRTC Karsog Delhi bus arrived at the spot. It was signaled to stop. SI Mehar Singh entered the bus for checking from the front window and ASI Ram Chand entered the bus from the rear window along with SHO Brijesh Sood. The other police officials remained on the road. These officials started cheking the belongings of the passengers. A bag was found in the rack about seat No. 9 which was not claimed by anyone. On seat No. 9, the accused was found sitting. On seat No. 7 PW-1 and on seat No. 8 his contractor were sitting. When no one claimed the bag ASI Mehar Singh called the SHO inside the bus. He made inquiry from the accused. The accused told that he was going to meet his sister at Samlkhana. Suspecting the accused of not telling the truth, the SHO asked the accused and the occupants sitting on seat Nos. 7 & 8 to accompany him to the Police Station. While getting down from the bus, the accused pushed the police officials who were standing near the door of the bus and jumped below the road into the bushes and escaped in the darkness. The police, passengers and the driver and conductor of the bus tried to search for the accused in the bus lights but he could not be traced. The SHO along with the police officials, driver and conductor then returned to the bus and checked the bag. It was found having two yellow plastic packets containing charas in it. The bag was then carried to the Police Station. The bus passengers were also taken to the Police Station. The charas was weighed. It weighed 2 kg. 650 grams. Two samples of 50 grams were taken after mixing the charas of both the packets. The samples were put in separate cloth parcel and sealed with seal “D”. The remaining charas along with the bag and packets was also sealed in a separate cloth parcel with the same seal. The SHO filled in the NCB form. On 12.2.2008, the police searched the accused and he was arrested on 13.2.2008. The samples were sent to FSL, Junga for chemical examination. The investigation was completed and the challan was put up after completing all the codal formalities.

3. The prosecution, in order to prove its case, has examined as many as 13 witnesses. The accused was also examined under Section 313 Cr.P.C. According to him, he was falsely implicated. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal.

4. Mr. Parmod Thakur, learned Addl. Advocate General for the State has vehemently argued that the prosecution has proved its case against the accused. On the other hand, Mr. B.R. Sharma, Advocate for the accused has supported the judgment of the learned trial Court dated 30.9.2008.

5. We have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully.

6. PW-1 Liaq Ram testified that he along with his contractor Soni were occupying seats No. 7 & 8 in Karsog-Delhi bound bus. The accused was sitting on seat No. 9. At about 12:15 Am, the bus was stopped at Dharampur by the police. Two police officials entered the bus, one from the front window and another from the rear window. They started checking the belongings. On