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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
TARLOK SINGH CHAUHAN, SATYEN VAIDYA, JJ.
State of H.P. – Appellant
Versus
Virender Kumar – Respondent
Cr. Appeal No. 231 of 2013
Decided on : 05-03-2024
NDPS Act - Acquittal - Section 20
Fact of the Case:
The State of Himachal Pradesh appealed against the acquittal of the respondent under Section 20 of the NDPS Act. The respondent was found in possession of 'Charas' by the police, but the trial court acquitted him based on material contradictions in the statements of spot witnesses, non-compliance of Section 42 of the NDPS Act, and discrepancy in the weight of the recovered contraband.
Finding of the Court:
The court analyzed the evidence and found that there were inconsistencies and contradictions in the statements of the spot witnesses, rendering their testimonies doubtful. The court also noted non-compliance with Section 42(2) of the NDPS Act, which was fatal to the prosecution case. However, the alleged discrepancy in the weight of the contraband was found to be explainable.
Issues: Material contradictions in witness statements, non-compliance with Section 42(2) of the NDPS Act, and discrepancy in the weight of the recovered contraband.
Ratio Decidendi: The court held that non-compliance with Section 42(2) of the NDPS Act was fatal to the prosecution case, and the alleged discrepancy in the weight of the contraband was explainable. The court also emphasized that the powers of the appellate court in appeals against acquittal are not unbridled and should be exercised with caution.
Final Decision: The appeal was dismissed, and the judgment of acquittal was affirmed.
JUDGMENT :
Satyen Vaidya, J.
AppellantState of Himachal Pradesh has filed the instant appeal against the judgment of acquittal dated 27.12.2012 passed by learned Special Judge, Sirmaur District at Nahan, H.P. in case No. 30ST/7 of 2010, whereby the respondent has been acquitted of charge under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (for short “NDPS Act”).
2. The prosecution had relied upon following facts:
(i) On 04.06.2010, police officials, namely ASI Pritam Singh (PW13), HHC Tikka Ram (PW11) and Constable Rajneesh Kumar (PW3) left Police Station Rajgarh at about 8.45 A.M. towards Kanesh, Sanora and Dhamandari etc., for routine patrol duty.
(ii) At about 6.30 P.M., police party noticed the presence of respondent at village Jagher, who was approaching the liquor vend with a bag held by him on his right shoulder. At the sight of police party, respondent got scared and tried to flee from the spot.
(iii) Police apprehended the respondent after entertaining a suspicion. Mohi Ram (PW1) and Hari Chand (PW9) were associated as independent witnesses.
(iv) Respondent was informed about his right to be searched in presence of a gazetted officer or Magistrate, however, the respondent opted to be searched by the police party.
(v) Members of police party gave their personal search to the respondent.
(vi) The bag held by the respondent was searched. One shirt and one sweater besides a polythene bag were recovered. The polythene bag contained ‘Charas’, which on weighing was found to be 1 Kg. 250 grams. The recovered contraband along with other articles were seized and sealed. Relevant portions of NCB form were filled.
(vii) ASI Pritam Singh (PW13) prepared ‘Rukka’ and sent the same to Police Station through C. Rajneesh Kumar for registration of FIR. ASI Gurdayal Singh (PW10) registered the FIR and the file was handed over to Constable Rajneesh Kumar (PW3) for being delivered to ASI Pritam Singh (PW13) for further investigation.
(viii) Respondent was formally arrested and was forwarded to ASI Gurdayal Singh (PW10) along with seized contraband and allied articles collected as pieces of evidence. ASI Gurdayal Singh (PW10) conducted resealing proceedings and issued resealing certificate.
(viii) Contraband was deposited with H.C. Joginder Singh (PW14) posted as MHC of the Police Station Rajgarh at the relevant time.
(ix) On 05.06.2010, contraband along with collected evidence was sent by PW14 HC Joginder Singh to SFSL Junga for analysis through HC Amar Singh (PW5). The contraband on analysis by SFSL Junga was found to be sample of charas.
3. On completion of investigation challan was presented. Respondent was charged for offence under Section 20 of the NDPS Act. Prosecution examined total 14 witnesses. ASI Pritam Singh (PW13), Constable Rajneesh Kumar (PW3) and HHC Tikka Ram (PW11) were examined as spot witnesses. PW1 Mohi Ram and PW9 Hari Chand were examined as independent witnesses, but they did not support the prosecution case. PW2 Dinesh Sharma had proved the factum of scale and weights being handed over by him to the police on 04.06.2010. PW4 HHC Naresh Kumar and PW7 ASI Som Dutt proved handing over and receipt of special report under Section 52 of the NDPS Act in the office of SDPO Rajgarh on 05.06.2010. PW14 HC Joginder Singh and PW5 H.C. Amar Singh proved the safe custody of recovered contraband during investigation.
4. Learned Special Judge acquitted the respondent on following grounds:
(ii) Non compliance of Section 42 of the NDPS Act.
(iii) Discrepancy in the weight of recovered contraband while under examination at SFSL Junga.
5. We have heard learned counsel for the parties and have also gone through the entire record carefully.
6. Prosecution had sought support to its case from the depositions made by ASI Pritam Singh (PW13), Constable Rajneesh Kumar (PW3) and HHC Tikka Ram (PW11). In addition, reliance was placed on the documents p
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