Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(HP) 725

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
TARLOK SINGH CHAUHAN, RAKESH KAINTHLA, JJ.
State of Himachal Pradesh - Appellant
Versus
Jai Kishan - Respondent
Cr. Appeal No. 126 of 2015
Decided on : 01-03-2025

Advocate Appeared:
For the Appellant :Mr. I.N.Mehta, Senior Additional Advocate General with Mr. Navlesh Verma, Ms. Sharmila Patial, Mr. Sushant Keprate, Additional Advocates
General and Mr. J.S. Guleria, Deputy Advocate General.
For the Respondent:Mr. Naveen K. Bhardwaj, Advocate.

Non-compliance with Section 50 of the NDPS Act vitiates the search and recovery process, reinforcing the presumption of innocence in acquittal cases.

Headnote:
(A) Narcotic Drugs and Psychotropic Substances Act - Section 21 - Appeal against acquittal - The accused was acquitted by the Trial Court due to contradictions in witness statements and non-compliance with Section 50 of the NDPS Act, which mandates informing the accused of his right to be searched before a Magistrate or Gazetted Officer. The prosecution failed to establish the integrity of the case property and the recovery process was deemed flawed. (Paras 8, 20, 22, 28)

(B) Criminal Jurisprudence - Presumption of innocence - The principle that an acquittal strengthens the presumption of innocence and the appellate court should not interfere unless the trial court's decision is perverse or illegal. (Paras 14, 26)

Facts of the case:
The police apprehended the accused, recovered MDMA from his jacket, but the search was conducted without proper compliance with legal requirements. The accused claimed the case was false.

Findings of Court:
The Trial Court found significant discrepancies in witness testimonies and the handling of evidence, leading to the conclusion that the prosecution's case was not proven beyond reasonable doubt.

Issues: The main issues were the validity of the search conducted under Section 50 of the NDPS Act and the credibility of witness testimonies.

Ratio Decidendi: The court emphasized that non-compliance with Section 50 is fatal to the prosecution's case, and discrepancies in evidence cannot be dismissed as minor.

Result: Appeal dismissed.

JUDGMENT :

Rakesh Kainthla, J.

The present appeal is directed against the judgment dated 10.10.2024 passed by learned Special Judge-II (Additional Sessions Judge), Kullu, Himachal Pradesh (learned Trial Court)vide which respondent (accused before the learned Trial Court) was acquitted of the commission of an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the police presented a chargesheet before the learned Trial Court for the commission of an offence punishable under Section 21 of the NDPS Act. It was asserted that S.I. Megh Singh (PW-7), Head Constable Jamal Deen (not examined), Constable Nitish Kumar (PW-2) and Constable Nitin Thakur (PW-1) were on patrolling duty at village Chhalal on 12.05.2012. They saw the accused going towards Chhalal from Kasol. The accused returned after seeing the police party and concealed himself behind a stone. The police became suspicious of the conduct of the accused and apprehended him. The accused revealed his name as Jai Kishan Sharma on enquiry. SI Megh Singh (PW-7) informed the accused that he (SI Megh Singh) suspected the possession of narcotics by the accused. SI Megh Singh (PW-7) wanted to search the accused, and the accused told him that he had a legal right to be searched before a Magistrate or the Gazetted Officer. The accused consented to be searched by the police vide memo (Ext.PW-2/A). The police party gave their personal search to the accused and conducted the personal search of the accused. The police recovered polythene packets (Ext.P-2 to Ext.P-9) containing white powder (Ext.P-1). The powder was collected and weighed, and its weight was found to be 9.29 grams. The accused revealed that the powder was MDMA. The police put the powder in polythene. The polythene was put in a paper (Ext.P-10) and the same was put in a parcel (Ext.P-11). The police sealed the parcel with four seal impressions of seal ‘D’. The seal impression (Ext.PW-2/B) was taken on a separate piece of cloth. NCB-I form (Ext.PW-7/A) was filled in triplicate, and a seal impression was obtained on the NCB-I form. The seal was handed over to Constable Nitish Kumar (PW-2) after its use. The police seized the parcel vide seizure memo (Ext.PW-2/C). SI Megh Singh (PW-7) prepared a rukka (Ext.PW1/A) and handed it over to Constable Nitin Thakur (PW-1) with the directions to carry it to the Police Station.

3. Constable Nitin Thakur (PW-1) handed over the rukka to Inspector Sher Singh (PW-9), who got the F.I.R. (Ext.PW-9/A) registered in the Police Station. He handed over the case file to Constable Nitin Thakur (PW-1) with directions to hand it over to the Investigating Officer. S.I.Megh Singh (PW-7) conducted the investigations. He prepared the spot map (Ext.PW-7/B) and recorded the statements of witnesses as per their version. He arrested the accused vide memo (Ext.PW-2/D). He also prepared the memo (Ex.PW-2/E). of the personal search of the accused He produced the accused, the case file and the case property before Inspector/SHO Sher Singh (PW-9). Inspector/SHO Sher Singh resealed the parcel with four seal impressions of seal ‘E’. He obtained the seal impression (Ext. PW-9/C) on a separate piece of cloth and NCB-I form (Ext.PW-7/A). He filled out the relevant columns of the NCB-I form and handed over the case property, documents and sample seal to MHC Jai Singh (PW-8), who made an entry in Malkhana Register No. 19 (Ext. PW-8/A) and deposited the case property, sample seals and the documents in the Malkhana. He handed over the case property, documents and sample seals to Constable Sangat Ram (PW-5) with the directions to carry them to SFSL, Junga, vide RC No. 98 of 2012 (Ext.PW8/B). Constable Sangat Ram deposited all the articles at SFSL, Junga and handed over t