The main legal point established in the judgment is the requirement for the prosecution to prove the guilt of the accused beyond reasonable doubt in cases involving possession of contraband substances under the NDPS Act.

JUDGMENT :

R.B. Misra, J. (Oral)

The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure in reference to judgment dated 13.11.1997, passed by Learned Additional Sessions Judge, Mandi, H.P., in Sessions Trial No. 15 of 1997, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), acquitting the alleged respondent-accused.

2. The prosecution case is that on 5.2.1997, at about 12.30 A.M., PW.11 Shyam Lal, Head Constable, Incharge Police Post, Balichowki, in connection with routine patrol duty, was present at Zero point at Balichowki on Banjar Aut, State Highway. PW.10 Hem Chand Constable had been accompanying PW.11 at the time of patrol duty. PW.11 Shyam Lal, Head Constable had associated PW.1 Sat Pal, Parkash Chand son of Balbir and Parkash Chand son of Amar Singh as non official witnesses in the police party. It had been alleged that at about 12.30 A.M., on 5.2.1997, accused person was noticed coming towards Zero point from the side of Banjar. The accused person was in possession of one bag of red colour. At the sight of the police, accused person had felt scared and had tried to escape. This had aroused the suspicion of the police. PW.11 had over powered the accused person. PW.11 had entertained suspicion against the accused person. The accused person was suspected to be carrying contraband. As such, PW.11 had given option of search to the accused person before the Magistrate or a Gazetted police officer vide document Ex. PA.

The accused person, vide document Ex. PB, had consented for search before the local police party headed by PW.11 Shyam Lal, Head Constable. In the presence of the accused and non official witnesses, the police searched the bag Ex.P2 of the accused person. The bag was found containing charas which on weighment was found to be of 2kg. The police had taken two samples of 25 grams each from the charas recovered from the accused person. The samples packets of the charas and rest of the charas weighing 1950 grams had been separately sealed in three packets with seal 'H' and had been taken into possession vide recovery memo Ex.PC. The accused person had been arrested having apprised him of the grounds of arrest vide document Ex. PE. Ex. PD was specimen impression of seal 'H' used in sealing the case property. PW.11 had prepared report Ex.PW.8/A and had sent the same to the police station Aut for registration of the FIR. FIR Ex. PW.8/B had been registered against the accused person. PW.11 had deposited the sealed packets duly sealed with seal 'H' at the police station. One sample packet of charas had been got examined from Chemical Examiner, who vide report Ex.PA, had found the packet examined by him containing charas. Under the Act, the accused person could not have been in possession of charas weighing 2kg.

3. After investigation, respondent-accused was arrested and charged for the offence under Section 20 of the 'NDPS Act'. In order to prove its case, the prosecution has examined as many as 11 prosecution witnesses. Whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case and shown his innocence.

4. We have gone through the contents of the prosecution witnesses and have also gone through the material on record. Mr. Rajinder Dogra, learned Additional Advocate General, has submitted that independent witness, namely, Satpal (PW.1), has supported the prosecution case, and the police officials in discharge of their duty, in a natural course, have searched the accused and have recovered 'charas' of 2kg from his possession and the same was sent for chemical examination, where it was found to be 'charas' being carried by the accused, as such, in reference to the prosecution witnesses, the case of the prosecution is treated to be reliable.

5. On the other hand, It has been submitted on behalf of Mr. O.P. Sharma, Senior Advocate, that though an i