Pre-search consent memo mentioning specific NDPS section infers post-recovery fabrication; contradictions in police testimonies, failure to secure independent witnesses near populated area, and lack of contraband identification warrant acquittal.

JUDGMENT :
Rakesh Kainthla, Judge

The present appeal is directed against the judgment of conviction dated 7.12.2011 and order of sentence dated 22.12.2011, passed by learned Special Judge, Kullu, District Kullu, H.P., (learned Trial Court), vide which the appellant (accused before learned Trial Court) was convicted of committing an offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act (NDPS) and sentenced to undergo rigorous imprisonment for two years, pay a fine of Rs. 20,000/- and in default of payment of fine, to undergo further imprisonment for six months. (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 challan against the accused before the learned Trial Court for committing an offence punishable under Section 20 of the NDPS Act. It was asserted that ASI Naresh Chand (PW7), HC Chaman Lal (PW6), HHC Chet Ram and HHC Laxman Dass (PW2) were going towards Bhuntar on 11.10.2010. They saw the accused sitting on the left side of Shelidhar Naal Road at about 1:30 pm. The accused had a bag with him. He got up after seeing the police, picked up the bag and ran on the footpath. The police became suspicious and apprehended him at a distance of 50 ft. The place was lonely and deserted. No person was found in the vicinity. The police waited for 20 minutes for someone to reach the spot, but no one came. They sent HHC Chet Ram to bring a witness, but he could not find any witnesses. Hence, HC Chaman Lal and HHC Chet Ram were associated as witnesses. The accused disclosed his name as Ram Pal on inquiry. ASI Naresh Chand informed the accused that he had a right to be searched before a Magistrate or a Gazetted Officer. The accused opted to be searched by the police. Memo (Ex.PW6/A) was prepared. The police officials gave their personal search to the accused. Nothing incriminating was found in their possession. Memo (Ex.PW6/B) was prepared. ASI Naresh Chand checked the carry bag (Ex. P1) being carried by the accused and found one polythene bag (Ex. P2). The police opened the polythene bag and found one cardboard box (Ex. P3) containing charas (Ex. P4). The charas was weighed with the help of an electronic weighing scale, and its weight was found to be 500 grams. The charas was put in the cardboard box, the cardboard box was put in the polythene packet in the same manner in which they were recovered, and the packet was put in a cloth parcel (Ex.P1). The parcel was sealed with six seals of seal impression ‘A’. NCB-1 Form (Ex.PW1/F) was filled in triplicate. A seal impression was put on the form. Sample seal (Ex.PW6/D) was taken on a separate piece of cloth, and the seal was handed over to HC Chaman Lal after use. The case property was seized vide memo (Ex.PW6/C). The personal search of the accused was conducted, and a memo (Ex.PW6/E) was prepared. ASI Naresh Chand prepared a rukka (Ex.PW1/B) and sent it to the Police Station, where FIR (Ex.PW1/A) was registered. ASI Naresh investigated the matt