RAM SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS is a Criminal Appeal and it has been directed against the judgment dated 17.4.1996 and order dated 18.4.1996 vide which the appellant Shri Ram Singh was convicted under Section 15 of the N.D.P.S. Act and was sentenced to undergo rigorous imprisonment for 10 years and pay a fine of Rs. on lakh; and in default of payment of fine, to undergo further rigorous imprisonment for two and a half years.

(2.) THE brief facts of the case are that on 16th June, 1993 ASI Dilbagh Singh along with other police officials of Police Station Loharu were present near Railway Station Loharu and they took the services of one Mehar Chand and he was directed to be present there. When the head of the police party was talking to him, at about 5.30 p.m., the appellant came there from the side of the railway station. He was carrying a bag containing something. On seeing the police party, the appellant tried to take a turn back, but on the basis of suspicion he was apprehended. As per the story of the prosecution as contained in Ruqa Ex. PC., ASI Dilbagh Singh told the appellant that the former had the suspicion that the bag contained some narcotic drugs. The Investigating Officer, however, did not ask the appellant whether he wanted to be searched in the presence of a Gazetted Officer or Magistrate. Rather, the Investigating Officer took the accused and presented him before the Executive Magistrate-cum-Naib Tehsildar. In the presence of Naib Tehsildar and Mehar Chand, PW, the search of the appellant's bag was carried out and 25 Kgs. of poppy husk was found in it. A sample of 100 Kgs. (gms. ?) of poppy husk was taken out of it and the remainder was made in to a sealed parcel by using the seal of Head Constable Ashok Kumar bearing the inscription of 'AK'. The seal after use was handed over to Mehar Chand PW. The case property was also taken into possession and was also sealed with the same seal bearing inscription 'AK'. The case property was taken into possession vide Recovery Memo Ex. PA which was attested by the Naib Tehsildar besides other witnesses. Ruqa was sent to the Police Station Loharu for registration of the case on the basis of which formal FIR Ex. PC/1 was recorded. Later on, the accused and the case property was produced before the SHO Police Station Loharu, Amrik Singh who resealed the case property with his own seal and directed the Investigating Officer to keep the case property in safe custody with Moharrir Head Constable. The sealed sample of the poppy husk was sent to the Chemical Examiner who vide report Ex. PF declared the contents as chura of poppy husk. After completion of the investigation and recording of the statement of witnesses, the accused was challaned in the Court of Illaqa Magistrate, Ist Class Loharu and copy of the challan was supplied to the appellant as required by law and vide commitment (Order) dated 12.5.1994 committed the appellant to the Court of Additional Sessions Judge, Bhiwani. Vide order dated 4.6.1994, the appellant was charge-sheeted under Section 15 of the N.D.P.S. Act. The chargesheet was handed over to him and the charges were explained to the appellant. The appellant pleaded not guilty. The prosecution entered into evidence and examined Shri Randhir Singh Boora, Naib Tehsildar-cum-Executive Magistrate, PW. 1 and Dilbagh Singh SI, who appeared as P.W. 2. Prosecution also produced on record evidence of formal witnesses besides the report of the Chemical Examiner and the sworn affidavits of police officials etc. The accused was examined under Section 313 Cr.P.C. and the incriminating material was put to him. The accused denied the allegations of the prosecution and stated that a false case has been planted upon him. He further stated before the trial Court that one Mahender Singh was travelling in the bus, who had run away and the incriminating material might have been recovered from him. He took the stand that he was not carrying any poppy husk and was travelling in the bus in search of his brother who had been lost since long. He said that he had been falsely implicated in this case on false allegation. When called upon to enter his defence, the accused, however, did not lead evidence in defence. The trial Court relying upon the story of prosecution and the testimony of these two prime witnesses, rejected the defence. The appellant was convicted and sentenced in the manner stated above and accordingly the conviction order was passed. I have heard Ms. Gurminder Kaur, counsel on behalf of the appellant and the State counsel Shri Babbar Khan and with their assistance, have gone through the record of the cace.

(3.) IN view of the above discussion, this appeal succeeds. Resultantly, I allow this appeal and set aside the judgment and order passed by the trial Court and acquit the appellant of the charge framed against him. The case property stands confiscated. The intimation regarding acceptance of this appeal be sent to the Jail Authorities, Bhiwani so that the appellant be set at liberty forthwith, if not wanted or convicted in any other case. The appeal is allowed. Appeal allowed.