GULSHER MOHD. Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) This appeal is directed against the reversing judgment of the Division Bench of the High Court dated 17.9.2014/26.9.2014 in Criminal Appeal No. 328/2008. By the judgment impugned the Division Bench while setting aside the order of acquittal of the appellant passed by the learned Sessions Judge Sirmaur District at Himachal Pradesh dated 10.3.2008 in Sessions Trial No. 07-ST/7 of 2005 convicted the appellant for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the said Act') and imposed a sentence of five years rigorous imprisonment along with the fine of L 25,000/- and in default to undergo simple imprisonment for a period of six months.

(2.) As the case of the prosecution goes, on 21.2.2004 at about 4.00 P.M., PW. 11 Incharge CIA Inspector along with Head Constable Mujahir Khan, Constable Shamim Akhtar (PW.1), Hussain Singh (PW.4) and Kamal Khan (PW.9) were present at Miserwala, Tehsil Paonta Sahib in connection with detection of Excise and Narcotics cases. At that point of time a secret information was received by PW.11 that the appellant has been dealing in narcotic drugs illegally in his sweet shop where he was selling charas in small quantities to the customers on a regular basis. The information was recorded in Ext. PW-4/A and was sent to SDPO, Paonta Sahib through PW.4 and the raiding party was formed under PW.11. PW.2, an independent witness, by name Ashish Kumar along with one Yusuf Ali, another independent witness, were also joined and the team arrived at the sweet shop of the appellant where he was present at that time. After informing the appellant by PW.11 about the secret information, before searching the appellant in person, PW.11 in compliance with Section 50 of the said Act offered to him whether he would prefer a search to be made in the presence of the Gazetted Officer or a Magistrate. Since the appellant expressed his consent under Ext. PW-1/A which was also reduced into writing, to be searched in the presence of the independent witnesses the appellant was searched and since nothing incriminating was found on his person, the police party proceeded with the search of the appellant's shop again in the presence of the witnesses including PW.2 and Yusuf Ali. In the course of such search, the charas weighing 500 grams was found out and by following the prescribed procedure two samples of 25 grams each were drawn separately along with remaining quantity of charas which were taken into possession after being duly sealed with the impression "T". According to the prosecution, the seal after its use was handed over to witness Yusuf Ali. The recovery memo comprised in Ext.PW-1/F was prepared and after following the due procedure the seized charas along with the remaining charas which was in the sealed condition was handed over to SHO of Police Station Paonta Sahib. The SHO, who is PW.8, stated to have put it in another cover and resealed the parcels with the seal impression "H" issued a certificate in Ext. PW-8/C. The sample of charas were sent to CTL, Kandaghat with specimen seal and NCB form vide RC No. 26/2004. The special report Ext. PW-7/A was also sent to SDPO, Paonta Sahib. The site plan was also prepared under Ext. PW-11/B. After the receipt of chemical examiner's report Ext. PW-8/D and after completion of the investigation the challan was presented before the learned Judicial Magistrate First Class, Court No. 1, Poanta Sahib under Section 20 of the said Act, who committed the case to the learned Sessions Judge, Sirmaur. The learned Sessions Judge having acquitted the appellant of the offence charged against him, State came forward with the appeal before the High Court wherein the impugned judgment came to be rendered reversing the judgment of the learned Sessions Judge and convicting the appellant under Section 20 of the said Act.

(3.) We heard Mr. M. Dutta, learned counsel for the appellant and Mr. Karanveer Jindal, learned counsel for the State. Learned counsel for the appellant, in the first place, contended that there was a serious infirmity in complying with the mandatory statutory prescription under Section 42 read with Section 50 of the said Act as well as Section 100 of the Cr.P.C. It was alternatively contended that even if such compliance was not called for in the case at hand, the offence was not made out with the evidence which was placed before the Court at the instance of the prosecution.