ASHOK KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS is a criminal appeal and has been directed against the judgment and order dated 8.6.1996, passed by the Court of Additional Sessions Judge, Rohtak, who convicted the appellant Ashok Kumar under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentenced him to undergo R.I. for a period of 10 years and to pay a fine of Rs. 1 lac; in default of payment of fine, the appellant was directed to undergo R.I. for three years, for allegedly having been found in possession of Charas weighing 5 kgs. and 500 grams, without any licence or permit.

(2.) THE brief facts of the case are that on 24.9.1995, ASI Maha Singh along with other police officials, was present at Mokhra Chowk, Madina on G.T. Road, in connection with patrolling and excise checking and was having talks with Daya Nand, Chowkidar of Village Madina. Meanwhile, the appellant was spotted coming from the side of Bus Stand, Madina. He was carrying a bag in his right hand. On seeing the police party, the appellant tried to take a turn but on the basis of suspicion, he was overpowered and arrested. ASI Maha Singh served a notice, Ex. PJ, under Section 50 of the Act and the appellant was directed to exercise his option whether he wanted to give his search in the presence of some gazetted officer or a Magistrate. The appellant opted for his search by a Magistrate. Thereafter, Constable Rajesh Kumar was sent to the Court of the S.D.M., Meham, with the application, Ex. PB, so as to enable ASI Maha Singh to take the search of the appellant in the presence of the Magistrate. The S.D.M. marked the application to Shri Dharam Pal Pannu, Tehsildar-cum-Executive Magistrate, PW-1, so that he may be able to join in the search. Shri Dharam Pal Pannu reached at the spot. Accused Ashok Kumar was produced before the Executive Magistrate along with the bag. Thereafter, in the presence of Shri Dharam Pal Pannu and Daya Nand, Chowkidar, the search of the bag was conducted by ASI Maha Singh, PW-4, Investigating Officer. The bag contained Charas wrapped in a wax paper. On weighing, it came to 5 kgs. and 500 grams. The A.S.I. separated 250 grams of charas by way of sample and made a sealed parcel thereof by using his own seal bearing inscription "MS". The case property was also sealed with the seal of the A.S.I. and also with the Seal of the Executive Magistrate Dharam Pal Pannu. Sample seal was also prepared and the seal after use was handed over to Daya Nand, Chowkidar. The entire case property was taken into possession vide recovery memo, Ex. PA, which was attested by Daya Nand, Chowkidar and Head Constable Mahabir and Shri Dharam Pal Pannu. Appellate could not produce any licence or permit for the possession of charas. Resultantly, Ruqa, Ex. PH, was sent to the police station for the registration of the case, on the basis of which formal FIR, Ex. PH/1, was recorded against the appellant. The I.O. also prepared the rough site plan, Ex. PK, of the place of recovery with correct marginal notices and recorded the statements of the witnesses. Accused was formally arrested and on return to the police station, the case property and the accused was produced before Satbir Singh, SHO, who verified the earlier investigation conducted by ASI Maha Singh. The case property, ultimately, was handed over to the Moharrir Head Constable of the Police Station with the seals intact for safe custody. Later on, the sample of the charas was sent to the office of the Director, Forensic Science Laboratory, Madhuban, who vide report, Ex. PL, declared the contents as charas. The special report was also sent to the higher authorities by ASI Maha Singh regarding the search, seizure and the arrest of the accused. Finally, on the completion of the investigation of the case, the appellant was challaned in the Court of the Illaqa Magistrate, who supplied the copies of the documents to the appellant free of cost as required under the law and committed the accused to the Court of Sessions in order to face trial. The learned trial Court framed a charge under Section 20 of the Act. The charge was read over and explained to the appellant, who pleaded not guilty and claimed a trial.

(3.) ON the closure of the prosecution evidence, the statement of the accused was recorded under Section 313, Cr.P.C. and all the incriminating circumstances were put to the accused. Accused denied those circumstances and pleaded innocence and false implication in the case.