Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(HP) 278

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
JYOTSNA REWAL DUA, J.
Sandeep Kumar – Appellant
Versus
State of Himachal Pradesh – Respondent
Criminal Appeal No. 420 of 2012
Decided On : 02-06-2023

Advocates:
Advocate Appeared:
For the Appellant : Amar Deep Singh.
For the Respondent: Y.P.S. Dhaulta.

Point of Law: Section 50 of Act conditions under which search of persons shall be conducted.

Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20, 50 - Cannabis was recovered - Appeal against conviction - Appellant was convicted by learned Trial Court for commission of offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 for possessing approximately 390 Gms. of cannabis - Prosecution has failed to establish guilt of appellant beyond reasonable doubt.
Findings of the Court:
As per prosecution, alleged contraband was recovered in a bag made of “transparent plastic” and whole contraband after recovery was sealed with six seal impressions of ‘N’ - Seal was statedly handed over to PW-8 HHC Hem Ram after use - During examination, PW-8 did not produce same and stated to have misplaced it - As per FSL report, Ex. PW-1/B, parcel cloth had “brown tape” and poly bag - There is obviously contradiction - Bulk cannabis recovered and parceled as Ex. P-1 did not match parcel sent for examination - Appellant has been able to show infraction of provisions of Section 50 of Act by prosecution - Prosecution has failed to establish guilt of appellant beyond reasonable doubt - Therefore benefit of serious doubts in prosecution case has to go in favour of appellant - Judgment of conviction and sentence order passed by learned Trial Court in Sessions Trial are set aside.
Result: Appeal allowed.

JUDGMENT :

JYOTSNA REWAL DUA, J.

1. The appellant was convicted by the learned Trial Court on 06.09.2011 for the commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) for possessing approximately 390 Gms. of cannabis. Vide order dated 11.09.2011, he was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 10,000/- with default clauses. The substantive sentence imposed upon the appellant was suspended vide order dated 31.10.2012 passed in this appeal preferred by him.

2. Briefly put, the prosecution case is:

(i) On 07.10.2010, a police party was patrolling its jurisdictional area in a police vehicle (daily diary report Ex. PW-9/C). The police officials nabbed the appellant at the spot which was about 1 Km. short of Gharatgarh. The appellant was apprehended at around 9.30 a.m. while he was attempting to flee from the spot.

(ii) The police waited at the spot for about 10-15 minutes for associating independent witnesses. Since no one passed, the police officials associated PW-8 HHC Hem Ram and HC Shesh Raj (given up in evidence) in search procedure.

(iii) In presence of above stated witnesses, the appellant was apprised on the spot of his legal right of search before a Magistrate or Gazetted Officer. The appellant consented to be searched before the Magistrate vide consent memo Ex. PW-7/A. The consent memo Ex. PW-7/A was prepared on the spot.

(iv) The appellant was taken to the office of Tehsildar Banjar, District Kullu in a government vehicle. The Tehsildar-Kirpa Ram (PW-7) was apprised about the incident. Consent memo Ex. PW-7/A was presented to him.

(v) The appellant first searched the I.O. Ram Lal (PW-9) vide Ex. PW-7/B. Nothing incriminating was recovered from I.O. Ram Lal. The investigating officer Ram Lal thereafter carried out search of the appellant. Cannabis in form of balls and sticks weighing 390 Gms. was recovered from a packet made of transparent plastic tape concealed around appellant’s waist under-pant. The recovered contraband was sealed in a parcel Ex. P-1 with seal ‘N’ at six places. Seizure memo Ex. PW-7/C was prepared. All codal formalities were completed.

(vi) After the search, the I.O. prepared the spot map Ex. PW-9/B by visiting the spot. The appellant was arrested vide arrest memo Ex. PW-8/A.

(vii) Entire bulk of contraband (Ex. P-1) was sent to Forensic Science Laboratory (FSL) for scientific analysis. PW-1, the Assistant Director and Assistant Chemical Examiner prepared the FSL report Ex. PW-1/B. As per the report, the brown tape and poly bag were found in the sample cloth parcel and the exhibit that weighed 390.00 Gms.

3. Learned trial Court on considering the entire case, came to the conclusion that prosecution had been able to prove beyond reasonable doubt that 390 Gms. of cannabis was recovered from exclusive and conscious possession of the appellant. The appellant was accordingly held guilty of commission of offence under Section 20 of the Act vide judgment dated 06.09.2011. He was sentenced to rigorous imprisonment of one year alongwith fine of Rs. 10,000/- with default clauses vide order dated 11.09.2011. This judgment and the sentence order have been assailed in the instant appeal.

4. Observations:

I have heard Mr. Amar Deep Singh, learned counsel for the appellant and Mr. Y.P.S. Dhaulta, learned Additional Advocate General, for the respondent-State. With their assistance, I have also considered the record of the case. The submissions made by learned counsel for the appellant primarily revolve around non-compliance of Section 50 of the Act. In order to avoid repetition, the submissions of learned counsel for the parties on this point viz-a-viz the evidence led in the case are being discussed hereinafter.

(i) Since it has been asserted on behalf of the appellant that there has been infraction of Section 50 of the Act, it would be appropriate to first extract the provisions of this Section and notice some Judici