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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SABINA, SATYEN VAIDYA, JJ.
AVTAR @ TARRI S/O SHRI MEET RAM – Appellant
Versus
STATE OF HIMACHAL PRADESH – Respondent
Criminal Appeal No. 386 of 2020
Decided On : 27-07-2022
Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20, 50 and 57 – Search and Seized - Recovery of 1kg 600 grams of charas – Appeal against conviction - A suspicion was entertained from conduct of appellant. PW-12 ASI gave option to the appellant to be searched either before some gazetted officer or Magistrate. Appellant consented to be searched by police party. Consent memo was prepared. Police officials offered their search vide memo. Thereafter, bag carried by appellant was searched and charas was found therein. Recovered charas was weighed and found 1kg 600 grams - Court disagrees with such contentions for reasons that compliance was made in this case as evident from statements of witnesses as well as documents. Recovery was made from bag carried by appellant. In such a situation, Section 50 of Act was not required to be complied with. (Para 27)
Finding of the Court :
As regards applicability of the requirements under Section 50 of the Act are concerned, it is well settled that the mandate of Section 50 of the Act is confined to “personal search” and not to search of a vehicle or a container or premises - As a presumption of law, the presumption would be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature - Court view that there is no infirmity or illegality in the impugned judgment holding appellant guilty of offence under Section 20 of ND&PS Act. Therefore, affirm impugned judgment and uphold the conviction and sentence of appellant as imposed by learned Special Judge.
Result: Appeal dismissed
JUDGMENT :
SATYEN VAIDYA, J.
1. Appellant assails judgment and sentence order dated 16.11.2019, passed by learned Special Judge (1), Mandi, District Mandi, H.P. in Sessions Trial No. 28 of 2016, whereby the appellant has been convicted for commission of offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘ND&PS’ Act) and to pay a fine of Rs. One lac, in default of payment of fine, appellant has to undergo further simple imprisonment for one year.
2. The case of prosecution in nutshell was that on 31.01.2016, the team of police officials comprising of PW-12 ASI Jeet Singh, PW-10 C. Harash Chand No. 572, PW-11 H.C. Durga Dass No. 408, PW-13 HHC Balwant Singh No. 363 alongwith HHG Khem Raj, HHG Khem Singh and HHG Dinesh Kumar, left police post Balichowki for routine patrol duty, vide DDR No.
3. Ext.PW-6/A. 3. ‘Nakka’ was laid at place known as Shilli-Larji, at about 10:45 am. Within ten minutes, the appellant was noticed by PW-12 ASI Jeet Singh, at some distance, who was approaching towards the police party. However, on noticing the police, the appellant had turned back and started walking briskly. Appellant was holding a bag in his right hand.
4. The place where appellant was apprehended was secluded and immediately no independent witness was available. An attempt was made by PW-12 ASI Jeet Singh to search for independent witness through PW-10 C. Harash Chand, but none was available. PW-11 HC Durga Dass and PW-13 HHC Balwant Singh, were associated as witnesses.
5. PW-12 ASI Jeet Singh with the help of other police officials, apprehended the appellant, who got perplexed. A suspicion was entertained from the conduct of the appellant. PW-12 ASI Jeet Singh gave option to the appellant to be searched either before some gazetted officer or the Magistrate. Appellant consented to be searched by the police party. Consent memo Ext.PW-11/A was prepared. Police officials offered their search vide memo Ext.PW-11/B. Thereafter, the bag carried by the appellant was searched and charas was found therein. Recovered charas was weighed and found 1kg 600 grams.
6. The recovered charas was repacked in the same bag and was placed in a white cloth parcel and sealed with nine seals with impression ‘T’. Recovery and seizure memo Ext.PW-11/C was prepared. Facsimile of sample seal Ext.PW-11/B was preserved. Column Nos. 1 to 8 of NCB Form Ext.PW-7/A were filled by PW-12 ASI Jeet Singh.
7. ‘Rukka’ Ext.PW-8/A was prepared and was sent to Police Station through PW-10 C. Harash Chand. PW-8 S.I. Pritam Singh received Rukka Ext.PW-8/A at Police Station, Aut and FIR Ext.PW-8/B was accordingly registered. PW-10 C. Harash Chand, brought the case file to spot for further investigation. Appellant was formally arrested. Accused alongwith sealed parcel (case property), NCB form and sample seals etc. were taken to police station and handed over to PW-7 Insp. Lokender Negi. PW-7 re-sealed the sealed parcel containing contraband with six seals of impression ‘A’. He issued re-sealing certificate Ext.PW-7/C. The case property alongwith NCB form and sample seals, were handed over to PW-9 HC Santosh Kumar, for safe custody in ‘Malkhana’ of Police Station, Aut.
8. On 02.02.2016, PW-12 ASI Jeet Singh, prepared special report under Section 57 of the Act and sent the same to PW-2 ASP Mandi through PW-4 HHC Duni Chand. Special report Ext.PW-2/A was received on the same day by PW-2 ASP Mandi and entry to this effect was made by PW-3 HC Laxman Dass in relevant register, abstract of which has been exhibited as Ext.PW-3/A.
9. On completion of investigation, the challan was prepared. Appellant was charged as under:
Appellant pleaded not guilty and claimed tr
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