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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
V.K. Sharma, R.B. Misra, JJ.
State of Himachal Pradesh — Appellant
Vs.
Neel Chand And Others — Respondent
Decided on : 02-08-2010
NDPS Act - Criminal Appeal - 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Summary: The prosecution failed to prove the possession of contraband goods beyond reasonable doubt. The court found that the recovered substance could be bhang, which is not an offense under the NDPS Act. The court referred to the decision in Panne Lal v. State of Himachal Pradesh and gave the benefit of doubt to the accused-respondents.
Fact of the Case:
The prosecution alleged that the accused were in possession of charas in a guest house. Despite the recovery of charas and chemical examination, independent witnesses did not support the prosecution's case. The court found discrepancies in the evidence and concluded that the prosecution failed to prove its case beyond reasonable doubt.
Finding of the Court:
The court found that the prosecution failed to prove the guilt of the accused beyond reasonable doubt. It noted that the recovered substance could be bhang, which is not an offense under the NDPS Act. The court referred to the decision in Panne Lal v. State of Himachal Pradesh and gave the benefit of doubt to the accused-respondents.
Issues: The main issue was whether the prosecution could prove the possession of contraband goods beyond reasonable doubt.
Ratio Decidendi: The court's decision was based on the failure of the prosecution to prove the possession of contraband goods beyond reasonable doubt and the possibility that the recovered substance could be bhang, which is not an offense under the NDPS Act.
Final Decision: The court dismissed the criminal appeal, stating that the prosecution failed to prove its case beyond reasonable doubt. The bail bonds furnished by the accused-respondents were discharged.
JUDGMENT :
R.B. Misra, J.
Heard Mr. Rajinder Dogra, Additional Advocate General and Mr. Ravinder Thakur, learned Counsel for the accused-respondents.
2. The present Criminal Appeal has come up for adjudication after the grant of leave to appeal u/s 378(3) of the Code of Criminal Procedure in reference to judgment dated 18.2.1999, passed by Learned Sessions Judge, Kullu, H.P., in Sessions Trial No. 30 of 1997, u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), acquitting the alleged accused/respondents.
3. The prosecution case is that on 18.7.1991, at about 5.30 P.M., ASI Mahesh Kumar, alongwith HC Lal Chand and other Constables, while on patrolling, has received a secret information that three boys, namely, Neel Chand, Deep Ram and Kalu Ram, were staying in room No. 2 of 'Kishore Guest House' at old Manali, and they were in possession of charas, as such, ASI Mahesh Kumar recorded such information and sent the same to Superintendent of Police, Kullu. ASI Mahesh Kumar also prepared Rukka and sent the same to the Police Station for registration of a case, on the basis of which FIR No. 168 of 1997 was registered. Thereafter, ASI Mahesh Kumar proceeded towards 'Kishore Guest House', where, with the participation of Ajay Kataria and Geetu Kataria, room was searched and charas was recovered from the almirah of the room. On weighing the charas was found 250 grams, from which two samples of five grams were taken out separately and sent for chemical examination. The remaining cannabis (charas) was kept in a packet. A special report given by ASI Mahesh Kumar was also sent to Dy.S.P. Kullu.
4. After investigation, all the accused were charged for the offence u/s 20 of the 'NDPS Act'. In order to prove its case, the prosecution has examined as many as 12 prosecution witnesses. Whereas, the accused through their statements u/s 313 of Cr.P.C., have denied the prosecution case.
5. PW.1 Bir Singh a member of patrolling party, PW.2 Mast Ram, another member of patrolling party, PW.3 HC Ghansham Chand, Reader to Dy. S.P. Kullu, PW.4 HC Surinder Kumar, PW.5 Kuldeep Rana, who re-sealed the three parcels with impression 'K' and deposited the same with MHC vide Ex. P1 and Ex.P2, PW.6 S.I. Rulia Ram, prepared the challan, PW.7 Neelbir Singh, who helped in weighing the charas, PW.9 Geetu Kataria and PW.10 Ajay Kataria were two independent witnesses. PW.11 Constable Gurdial Singh and PW.2 Mast Ram in discharge of their official duty have supported the prosecution case to the extent they were assigned their role. However, PW.12 ASI Mahesh Kumar has investigated the case and has endeavoured to prove the prosecution case by associating above two independent witnesses.
6. After the investigation, the following exhibits Ex. PA Rukka, Ex.PA/1 endorsement on Rukka, Ex.PB special report, Ex.PC information, Ex.PD FIR, Ex.PE copy of Guest House Registration Index, Ex.PF information regarding search, Ex.PG recovery memo, Ex.PH information regarding offence, sentence and arrest, Ex.PJ Spot Map, Ex.PK statement of witness Geetu Kataria u/s 161 of Cr.P.C., Ex.PL statement of witness Ajay Kataria u/s 161 of Cr.P.C. and Ex.PM report of chemical examiner, were exhibited.
7. We have gone through the contents of the statements of the prosecution witnesses and material on record, and have also heard the learned Counsel for the parties. Mr. Dogra, learned Additional Advocate General, has submitted that the prosecution comprising of the above mentioned police officials reached the above mentioned Guest House and recovered charas from the almirah of a room of the said guest house, which was in possession of the accused. Despite the fact that independent witnesses have not supported the prosecution case and they have been declared hostile, however, ASI Mahesh Kumar has investigated the case is reliable, as such, the prosecution is taken to be
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