STATE OF HIMACHAL PRADESH Vs. PAWAN KUMAR

JUDGEMENT

(1.) THE present criminal appeal has arisen consequent upon granting leave to appeal under Section 378(3) of the Code of Criminal Procedure, in reference to the judgment dated 15.6.1992, passed by learned Sessions Judge, Una in S.Tr. No. 1/1992, vide which the accused has been acquitted of the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as 'the NDPS Act').

(2.) THE prosecution case is that on 20.8.1991, at about 7.00 or 7.15 p.m., when accused Pawan Kumar was sitting on a bench in front of the shops of Krishan Kumar outside the Bus Stand, Una, police party comprising of Inspector Sita Ram, Dy. S.P. Partap Singh, ASI Om Parkash, ASI Gian Chand, H.C. Ramesh Chand and one lady Constable, alongwith two independent witnesses Sukhdev Singh and Krishan Kumar reached there. On suspicion, the police party made inquiries from the accused/respondent and asked him that he is to be searched and also took his consent as to whether he wanted to be searched by the police officials or by a Magistrate or by a Gazetted Officer. On the consent of the accused, his personal search was conducted and a plastic bag was found from his possession in which opium of 1 kg. was found. Two samples of 10 grams each were taken and were also sealed in different packets and the remaining opium was kept in the bulk. The seal was handed over to Sukhdev Singh and after investigation, the accused/respondent was charged for the offence under Section 18 of the 'NDPS Act' and the case was committed to the Sessions Court.

(3.) PW -1 Sukhdev Singh and PW -2 Krishan Kumar are stated to be the independent witnesses. However, they have only admitted to the extent that the accused was sitting on a Bench in front of the shop of Krishan Kumar, but they have also stated that the accused was taken to the police station in a Van where their signatures were obtained on some papers by the police. PW -1 Sukhdev Singh and PW -2 Krishan Kumar have consistently, separately and coherently denied the time of raid and the assertions of the prosecution that the accused was holding a Parna or that on search of the Parna, the incriminating material was found in the possession of the accused/respondent. In cross examination, both PW -1 and PW -2 have admitted that so many persons were sitting in the shop as well as on the bench in question in front of the shop of Krishan Kumar and that all of them ran away on seeing the police party, whereas the accused remained sitting on the bench in question to take tea. Such narration clearly shows that none of the independent witnesses have neither seen the incident nor have supported the prosecution case if the parna in question, much less the incriminating material, was recovered in their presence.