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2022 Supreme(Online)(HP) 2357
HIGH COURT OF HIMACHAL PRADESH
MR. JUSTICE TARLOK SINGH CHAUHAN, MR. JUSTICE VIRENDER SINGH, JJ
STATE OF HIMACHAL PRADESH – Appellant
Versus
SURESH KUMAR – Respondent
CRIMINAL APPEAL No. 170 OF 2011
For the Appellants/Petitioners: MR. J.S. GULERIA
For the Respondents: MR. N.K. THAKUR, MR. DIVYA RAJ SINGH
The failure to comply with statutory provisions for search and seizure under the NDPS Act undermines the prosecution's case and entitles defendants to acquittal.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20 - Criminal Procedure Code, Section 378(3) - Appeal against acquittal - The acquittal was based on non-compliance of Sections 42 and 50 of the NDPS Act, finding unreliable prosecution evidence - Evidence indicated failure of police to comply with legal requirements for search and seizure, therefore the accused persons were granted the benefit of doubt. (Paras 25, 56)
(B) Prosecution's duty to prove every ingredient of the offence beyond reasonable doubt - A conviction may rely solely on the testimony of official witnesses, but the credibility of such evidence must be assessed with caution. (Paras 45, 46)
| Table of Content |
|---|
| 1. details of arrest and evidence gathering. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10) |
| 2. arguments regarding evidence validity and compliance. (Para 12 , 13 , 15 , 16) |
| 3. testimonies of police officials and their credibility. (Para 18 , 19 , 20 , 21) |
| 4. findings of the trial court regarding acquittal. (Para 25 , 26 , 27) |
| 5. reassessment of application of sections 42 and 50. (Para 28 , 29 , 30) |
| 6. judgment on prosecution's evidence reliability. (Para 53 , 54 , 55) |
| 7. final judgment - appeal dismissed. (Para 56 , 57) |
JUDGMENT
The State has filed the present appeal filed under Section 378 (3) of the Code of Criminal Procedure against the judgment dated 28.02.2011 passed by the learned Special Judge, Chamba, District Chamba, H.P. (hereinafter referred to as the ‘trial Court’).
2. By way of judgment dated 28.02.2011, the learned trial Court has acquitted the respondents (hereinafter referred to as the ‘accused persons’) from the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’).
3. Brief facts, leadings to the filing of the present appeal, before this Court, may be summed up as under:-
On 19.06.2010 ASI Vinod Singh, Incharge, Police Post, Sultanpur has forwarded a ‘Rukka’ to the Police Station Chamba disclosing therein that he, alongwith other police officials, was on picketing and traffic checking duty and was present at “Bhataluan bridge”. When, he was checking the vehicles, then, at about 3.30 p.m. one scooter was noticed, being driven by its driver, coming there, from Chamba side.
3.1 Apart from the driver, one pillion rider was also there on the scooter. On seeing the police party, the driver stopped the scooter, at a distance of about 15-20 meter away and tried to return back and to flee away, upon which, the pillion rider, who was having the rucksack, on his back, had thrown the said rucksack towards the scooter driver and fled away. The said person was nabbed at a distance of 20-25 meter. Meanwhile, the scooter driver also made efforts to flee away along-with the rucksack, however, he was also nabbed.
3.2 From the activities of the said persons, ASI developed a suspicion, in his mind, that the said persons might be having some illegal article or narcotic substance in their possession, as such, keeping in view their activities, ASI has associated Harish Chand son Tara Chand, HC Uttam Chand and HHC Raj Kumar and inquired about the name of those persons. (Both the accused persons).
3.3 On inquiry, the pillion rider has disclosed his name as Kuljeet Singh son of Gurbax Singh and scooter driver has disclosed his name as Suresh Kumar son of Joginder Singh. (Both the accused person).
3.4 Thereafter, the IO had obtained the written consent of aforesaid persons regarding their personal search and search of their rucksack. After obtaining their consent to be searched by the police, the rucksack was searched. On its checking, a plastic envelop was found in it. On opening the same, charas was found in it. On weighment, the charas was found to be 3.750kgs.
3.5 Other codal formalities were completed on the spot and accused persons were arrested. After receipt of the positive report from FSL, Junga, the police has filed the challan, for the commission of the offence punishable under Section 20 of the NDPS Act against the accused.
4. The learned trial Court, on the basis of the report under Section 173(2) Cr.P.C found a prima-facie case, for the commission of the offence, punishable under Section 20 of the NDPS Act against both the accused and accordingly, both of them were charge-sheeted.
5. When, the charge, so framed, put to the accused persons, they have not pleaded guilty and claimed trial.
6. Since, the accused persons have not pleaded guilty, as such, the prosecution has been directed to adduce evidence, to prove the charge, against the accused persons.
7. Consequently, the prosecution has examined as many as nine witnesses.
8. After closure of
