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2002 Supreme(HP) 213
High Court Of Himachal Pradesh
R.L.KHURANA,M.R.VERMA
IACOPO LOMBARDI - Appellant
Versus
STATE OF HIMACHAL PRADESH - Respondent
Criminal Appeal No. 527 of 2001
Decided On : 08/08/2002
Mr. I.S. Balhara with Mr. N.K. Thakur, Advocates, for the Appellant; Mr. J.K. Verma, Assistant Advocate General, for the Respondent.
The main legal point established in the judgment is the importance of compliance with the mandatory requirements under Section 42 of the Narcotic Drugs and Psychotropic Substances Act, including the recording of reasons for belief and the need for reliable link evidence to establish the connection between the sample and the recovered contraband.
Headnote:
Narcotic Drugs - Conviction under Section 20 of the Narcotic Drugs and Psychotropic Substances Act - Section 20 - Summary of Acts and Sections: Section 20 of the Narcotic Drugs and Psychotropic Substances Act - The court discussed the provisions of Section 42 of the Act, which deals with the power of entry, search, seizure, and arrest without a warrant or authorization. The court highlighted the mandatory requirements under Section 42 and emphasized the need for compliance with the recording of reasons for belief and sending a copy to the immediate official superior. The court also emphasized the importance of link evidence to connect the sample with the bulk case property and the need for reliable evidence in establishing the sample sent to the Chemical Examiner.
Fact of the Case:
The prosecution alleged that the accused was found in possession of charas concealed in a CD system. The accused denied the allegations but did not lead any defense evidence. The trial court convicted and sentenced the accused under Section 20 of the Act.
Finding of the Court:
The court found that the evidence presented by the prosecution, including the statements of witnesses and the compliance with the provisions of Section 42 of the Act, was not reliable and trustworthy. The court also noted discrepancies in the link evidence, rendering it highly unreliable. As a result, the court set aside the conviction and sentence, acquitting the accused of the charge against him.
Issues: The issues raised in the appeal included the lack of reliable evidence to prove conscious possession of the charas by the accused, non-compliance with the provisions of Section 42 of the Act, and the absence of cogent link evidence connecting the sample with the recovered contraband.
Ratio Decidendi: The court emphasized the mandatory requirements under Section 42 of the Act, highlighting the need for compliance with the recording of reasons for belief and the sending of a copy to the immediate official superior. The court also stressed the importance of reliable link evidence to establish the connection between the sample and the recovered contraband.
Final Decision: The court allowed the appeal, setting aside the conviction and sentence of the accused and acquitting him of the charge. The accused was ordered to be set at liberty forthwith if not required to be detained in custody under any other process of law, and the fine, if recovered, was to be refunded to him.
M.R. Verma, J.—This appeal is directed against the judgment dated 3.9.2001 passed by the learned Sessions Judge, Kullu, whereby the accused-appellant (hereafter referred to as the accused) had been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereafter referred to as the Act) and has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine, to suffer further imprisonment for six months.
2. Briefly stated, case of the prosecution is that HC Ramesh Lai (PW-10) along with HC Amar Chand, constable Sanjay Kumar (PW-9), Ajay Kumar (PW-2) and Constable Mohar Dass (PW-5) was on patrol duty at MPCL Gate, Dhonkra on 17.2.2001. At about 6 p.m., he receive a secret information that a person who had kept charas concealed in CD system, was coming from Manikaran in Taxi, bearing No. HPY-303. PW-10 recorded the information under Section 42 of the Act vide Ex.PW-1/A and sent the same to Deputy Superintendent of Police, Headquarters, Kullu, through PW-5% Thereafter, Ramesh Lal associated independent witnesses, namely, Amin Chand (PW-7) and Brahma Nand (PW-8) with the police party and came to the chowk. Around 6.30 p.m., the said taxi was seen coming from Manikaran side. It was stopped. The accused was sitting on the back seat of the taxi and was having a bag. The taxi was then taken to the compound of the police post. After inquiries about the particulars of the accused and verifying such particulars as disclosed by the accused from his passport, he was apprised that he was suspected of being in possession of charas and was given option whether he wanted to be searched before a Gazetted Officer or a Magistrate. The accused consented to be searched by the police present on the spot vide memo Ex.PW-7/A. PW-10 gave his own search vide memo Ex.PW-7/B. Thereafter, the bag found in possession of the accused was checked. The bag contained CD system was taken to the verandah of the police post and was opened with the help of a screw driver. On opening of the CD system, charas wrapped in polythene paper concealed under a piece of woolen cloth was recovered. The charas so recovered was weighed and was found 1.200 kgs. Three samples of 25 grams each were separated from recovered charas and were made into separate parcels and were sealed with seal T\ The remaining charas was repacked in CD system in the same manner as it was earlier packed therein. The CD system was then made into a parcel and was sealed with seal T. The seal impression was separately taken, NCB forms in triplicate were filled in and after use, the seal was entrusted to PW-8. Recovery memo Ex.PW-7/C was prepared and was attested by the witnesses. The accused was then apprised of the offence committed by him and the punishment provided therefor vide memo Ex.PW-7/D. PW-10 drew up ruqua Ex.PW-10/A and sent the same to Police Station, Kullu, through PW-9 for registration of a case and as a consequence, FIR Ex.PW-4/A came into being at Police Station, Kullu. On 18.2.2001, the case property was produced by PW-10 before SHO Kanwar Singh (PW-4), who resealed the same with seal H impression whereof is Ex.PW-4/C. The case property was then deposited with MHC Bhagat Ram (PW-11) who entered the same in the Malkhana Register vide entry Ex.PW-11/A. On 20.2.2001, a sample of the case property was sent to C.T.L., Kandaghat vide RC Ex. PW-11/ B through constable Ramesh Kumar (PW-3). The report regarding chemical analysis of the sample is Ex.PW-6/A vide which the sample was found to be that of charas. On being satisfied of the commission of the offence by the accused, a charge sheet was submitted against him by the Officer Incharge, Police Station, Kullu and the accused came to be tried on a charge under Section 20 of the Act by the learned Sessions Judge, Kullu.
3. To prove the charge against the accused, prosecution examined as many as 11 witnesses. The accused was examined under section 3
