Back
2002 Supreme(HP) 195
High Court Of Himachal Pradesh
R.L.KHURANA,M.R.VERMA
AVTAR SINGH - Appellant
Versus
STATE OF H.P. - Respondent
Criminal Appeal Nos. 67 and 168 of 2001
Decided On : 07/12/2002
Mr. Anup Chitkara, Advocate, for the Appellant; Mr. J.K. Verma, Assistant Advocate General, for the Respondents.
The judgment establishes the importance of complying with the mandatory provisions of the NDPS Act, particularly Section 42(2), and emphasizes the need to follow the safeguards provided under the Act.
Headnote:
NDPS Act - Conviction under Section 18 - Section 18, NDPS Act - The judgment discusses the non-compliance of mandatory provisions of Section 42(2) of the NDPS Act, which led to the acquittal of the accused. The court emphasized the importance of following the safeguards provided under the NDPS Act and the consequences of non-compliance. The judgment also references the harsh provisions of the NDPS Act, the need for comprehensive legislation on narcotic drugs and psychotropic substances, and the stringent penalties provided for various offences under the Act.
Fact of the Case:
The accused were convicted for the offence under Section 18, NDPS Act based on the recovery of opium from their possession during a raid. The defense claimed false implication and denial of the recovery.
Finding of the Court:
The court found that the prosecution failed to comply with the mandatory provisions of Section 42(2) of the NDPS Act, rendering the case of the prosecution not established. As a result, the accused were acquitted of the offence under Section 18, NDPS Act.
Issues: Non-compliance with mandatory provisions of Section 42(2) of the NDPS Act, ownership and possession of the recovered items, and false implication.
Ratio Decidendi: The non-compliance of mandatory provisions of the NDPS Act led to the acquittal of the accused. The court emphasized the importance of following the safeguards provided under the NDPS Act and the consequences of non-compliance.
Final Decision: The conviction and sentence imposed upon the accused were set aside, and they were acquitted of the offence under Section 18, NDPS Act. The accused were ordered to be released, and the seized items were to be returned or released.
R.L. Khurana, J.—The above noted two appeals arising out of the judgment dated 29.9.2000 of the learned Sessions Judge, Una, in Sessions Case No. 27 of 1999 are being disposed of by this common judgment.
2. The two appellants, Avtar Singh and Rajesh Kumar, hereinafter referred to as the accused, stand convicted for the offence under Section 18, Narcotic Drugs and Psychotropic Substance Act (for short : NDPS Act) and upon such conviction each one of them has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000. In default of payment of fine, each one of them has been sentenced to undergo simple imprisonment for a further period of two years.
3. Accused Avtar Singh alias Nikka is a resident of Santokhgarh, District Una, while accused Rajesh Kumar is a resident of village Ajauli, Tehsil and District Una.
4. Prosecution story, in brief, may be thus stated. On 3.4.1999 a secret information was received by PW-10 Shri D.R Sharma, the then Superintendent of Police, Una, on telephone that large scale trade in opium was being illegally carried out by a gang, of which the present two accused are members and operators, and that a big haul of opium was being carried by accused Avtar Singh in Car No. PB-12C-9527 from Majara towards his house and if a raid is conducted opium in very large quantity could be recovered. Finding the information reliable, PW-10 reduced such information into writing (Ex. PK) and forwarded the same to Police Station, Una for the registration of the case on the basis of which a case for the offence under Section 18, NDPS Act came to be registered vide FIR No. 179 of 1999 (Ex. PL) at about 4.40 p.m.
6. PW-10 deputed PW-12 Deputy Superintendent of Police Shri Madhusudan to conduct the raid. A raiding party was accordingly constituted by PW-12 consisting of PW-11 Assistant Sub Inspector Om Prakash, three Head Constables and thirteen Constables, PW-3 Smt. Nirmala Devi, Pradhan of Nagar Panchayat Santokhgarh and PW-4 Bhajan Singh, Member Nagar Panchayat, Santokhgarh, were also joined in the raiding party as the two independent witnesses. On the raid having been conducted, the two accused were found present in the house of accused Avtar Singh. During course of search of the house, two plastic bags were recovered. On further search of the bags, seven rexin bags were recovered therefrom which contained opium. On weighment such opium was found to be 35 kg. 950 grams.
7. A search of the Car PB-12C-9527 was also carried out and from beneath the rear seat one rexin bag containing 5 kg. 150 grams of opium was recovered.
8. The opium so recovered from the house and the car was seized and taken into possession after following the necessary procedure of sealing and sampling.
9. Further case of the prosecution is that a bag containing a sum of Rs. 2,16,683 was also recovered during the course of the search of the house. Such bag along with the currency notes was also seized, sealed and taken into possession. The car from which the opium is alleged to have been recovered was also seized and taken into possession.
10. The samples on having been sent for chemical examination, vide report Ex. PM were found to be that of opium.
11. After completion of investigation the two accused were sent up for trial. They were charged for the offence under Section 18, NDPS Act^ to which they pleaded not guilty and claimed trial.
12. The prosecution in support of the case examined fourteen witnesses in all. The defence of the accused is that of denial and false implication. They have denied the recovery from the house and the car. Accused Avtar Singh has even denied the ownership and exclusive possession of the house. Accused Rajesh Kumar though admitted the car No. PB-12C-9527 belongs to him, has denied any recovery of opium therefrom. In so far as recovery of Rs. 2,16,683 from the house is concerned, defence evidence has been led to show that such money belongs to the mother of accused Avtar Singh, which amo
