Non-association of independent witnesses in NDPS recovery at public place with traffic and habitation, absent genuine effort, coupled with inconsistencies and procedural lapses, warrants acquittal giving benefit of doubt.

JUDGMENT :

Vivek Singh Thakur, J.

State has preferred this appeal against judgment dated 30.04.2013, passed by Special Judge, Chamba, District Chamba, H.P. in Sessions Trial No. 16/12, titled as State of Himachal Pradesh vs. Pandav Ram in Case FIR No. 246/11, dated 02.10.2011, registered in Police Station, Sadar Chamba, District Chamba, H.P., under Section 20 of Narcotic Drugs and Psychotropic Substance Act, 1985 (in short ‘NDPS Act’), whereby respondent-Pandav Ram has been acquitted of charge, framed against him.

2. Prosecution’s case is that on 02.10.2011, at 8:30 P.M., police party headed by ASI Kuldeep Chand (PW-8) along with investigation kit, electronic weight measuring balance and search light, consisting of PSI Harish Kumar (PW-1), HC Ramesh Chand, No. 27, C. Naresh Kumar, No. 585 and C. Vinod Kumar, No. 485 left the Police Station, Sadar Chamba at 8:30 P.M. in Government vehicle No. HP73- 0919, driven by constable driver Vishal Kumar, No. 492 left the Police Station Sadar Chamba for patrolling and nakabandi in the Town Chamba, Hardaspura, Karian etc. by recording GD entry No. 33(A) dated 02.10.2011 (Ext. PW3/A).

3. Police party reached at Zero Point Bharmour Chowk, Chamba at about 9:15 P.M. and on noticing respondent Pandav Ram, sitting inside rain shelter along with bag, PW-8 ASI Kuldeep Chand asked the driver to stop the vehicle and thereafter, police party alighted from the vehicle. On seeing the police coming towards rain shelter, person started walking briskly towards Hardaspura, which caused suspicion and, therefore, PW-8 with the help of other accompanying police officials nabbed him. On inquiry, he could not explain the reason for his movement on seeing the police party. On asking, he disclosed his name as Pandav Ram with parentage and place of residence. According to PW- 8, he questioned the respondent about the material being carried by him in the bag in his possession and PW-8 became suspicious that respondent might be carrying some contraband in his bag and, therefore, bag was required to be searched. Respondent was informed about his legal right to have his personal search as well as the bag in presence of either Magistrate or Gazetted Officer. The respondent opted for personal search by the police personnel.

4. According to prosecution, as it was odd time, therefore, no independent witness was available and the Investigating Officer associated PSI Harish Kumar (PW-1) and HC Ramesh in search and seizure process. After taking consent of the respondent on consent memo (Ext. PW1/A), which was also signed by both the witnesses as well as respondent. Thereafter, I.O. ASI Kuldeep Chand, PSI Harish Kumar and HC Ramesh offered their personal search to respondent Pandav Ram. In this regard, memo (Ext. PW1/B) was prepared, which was also signed by the witnesses as well as the respondent. Respondent was brought to the rain shelter along with bag in his hand. The bag, having two laces, was opened wherefrom one corduroy trouser and one cloth bag, containing polythene were found. Polythene was opened, which contained cylindrical shaped brown coloured hard substance.

5. On smelling and on the basis of experience, the hard substance was identified to be Charas. After taking out weights and measures from I.O. kit, Charas was weighed and found to be 400 grams. Thereafter, Charas was put in polythe