OM PARKASH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS is a criminal appeal and has been directed against the judgment dated 1.10.1997 and order dated 4.10.1997, passed by the Court of the Additional Sessions Judge, Rohtak, who convicted the present appellant Om Parkash, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (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 further directed to undergo RI for 4 years.

(2.) THE story of the prosecution can be described as follows :- On 9.5.1995, Inspector Dhian Singh along with his official companions was present at Bahadurgarh Crossing in the area of Village Badli when he received a secret information that the present appellant clad in a while 'Kurta Pyjama' having grey hair, small moustache, shall come from Delhi at about 4/4.15 PM and shall being Charas with him. It was on this secret information that the Inspector along with his official companions was present at Bahadurgarh Crossing. In the meanwhile, the I.O. saw a man of the above description coming on foot carrying a cloth bag in his right hand. On seeing the police party at the crossing, he got frightened. He was apprehended by the Inspector with the assistance of his companions. On query, the appellant disclosed his name as Om Parkash @ Omi, resident of village Badli. The I.O. gave a notice u/s 50 of the Act enquiring from the appellant as to whether he wanted to give the search in the presence of some Gazetted Officer or a Magistrate as the I.O. had a suspicion that the accused was carrying some intoxicant with him. The appellant opted for search in the presence of a gazetted Officer. Accordingly, ASP, Rohtak A.S. Chawla, IPC, was informed about the matter and was asked to come at the spot. He came at the spot with his companions. In his presence, the I.O. took the personal search of the appellant and recovered a packet of polythene bag containing five layers in the shape of pieces of charas from the cloth bag. Another polythene bag containing charas in the shape of lamp from the cloth bag was recovered. On weighing, the total charas recovered came to 5 kg. 500 grams. The I.O. separated 100 grams of charas by way of sample and made a sealed parcel thereof. The sample was sealed with the seal of his companion bearing inscription 'BS' and the case property was also resealed by ASP A.S. Chawla, with his own seal bearing inscription 'AS'. The entire case property was taken into possession vide separate recovery memo. Accused could not produce any licence or permit for the possession of charas. Resultantly, a ruqa was sent to the police station for the registration of a case u/s 20 of the Act. The sample of charas was sent to the office of the chemical examiner who vide separate report declared the contents as charas. 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 accused and vide commitment order, committed the accused to the court of sessions to face trial.

(3.) I may state here that the charge in this case is not correct. As per the allegations of the prosecution, the appellant was carrying 5-1/2 kg. of charas. Since, the entire prosecution evidence has been recorded in the presence of the appellant at the trial stage, therefore, I am of the view that framing of wrong charge against the appellant has not caused him any prejudice and, therefore, his conviction cannot be set aside on this score, but I am inclined to accept the appeal of the appellant on different grounds, set forth subsequently in this judgment.