STATE OF H.P. Vs. KESARI LAL

JUDGEMENT

(1.) THE present criminal appeal has come -up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted, in reference to the impugned judgment dated 1.10.1996, passed by learned Sessions Judge, Mandi, Kullu and Lahaul Spiti Districts at Mandi, H.P., in Sessions Trial No. 10/96, whereby accused -respondent has been acquitted for the offence, under Section 20 of the ND and PS Act, 1985.

(2.) ACCORDING to the prosecution case on 28.11.1995, Sub Inspector Harbhajan Singh along with other Constables Ami Chand and Hukam Chand was on patrol duty towards Kataula when he received a secret information that accused -respondent has been dealing in Charas for the last so many days and would cross from that place after sometime with the Charas. The police party proceeded on -foot ahead on the road and found the accused -respondent coming from the other side who on seeing the police party tried to escape. However, he was over powered and he was made to know whether he wanted to be searched by police party or Magistrate or Gazetted Officer and on his agreeing to give his search to Sub Inspector Harbhajan Singh, on search 4 Kg and 350 grams of Charas was recovered. Two samples of 50 grams each were separated and sealed with seal of letter 'G' and the remaining bulk was also sealed with the same seal. The case property was taken into possession vide memo Ext. PA, which was also signed by the witnesses and the seal after its use was handed over to PW Neel Gagan. Accused was arrested and on investigation he was charged for offences under Section 20 of the ND and PS Act in terms of FIR Ext.PE against him and case was committed to the Sessions Court.

(3.) PW -1 Chaman Lal and PW -8 Neel Gagan are stated to be independent witnesses but both of them have not supported the prosecution case. PW -1 Chaman Lal is from the village of the accused -respondent whereas PW -8 Neel Gagan was the driver of Maruti Van HP -02 -2434, which was hired by the police party at the relevant time. PW -1 has very categorically stated that the accused -respondent was not caught by the police party in his presence and no search was made in his presence. PW -1 has further stated that police came to him in the morning of 28.11.1995 and has stated that they had caught some illicit liquor and asked him to become witness of the said recovery. As such, PW -1 agreed to put signature. As per testimony of PW -1 there are two tins of illicit liquor and he was taken by the police in the vehicle along with Kesari Lal where he put signatures on certain papers. He has further stated in cross -examination that he did not know as to what should be done in case his signatures were taken on a blank paper.