STATE OF H.P. Vs. UMA NAND

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment dated 30.4.1996 delivered by the learned Sessions Judge, Shimla, in Sessions Trial No. 29 -S/7 of 1993 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (here -in -after referred to as the Act.)

(2.) THE prosecution story, in brief, is that on 8th May, 1992 Dy.S.P. PW -6 Gita Ram was on V.I.P. duty at Kufri alongwith PW -5 Gurmeet Singh and certain other police officials. PW -6 received secret information that accused Uma Nand of village Chanauli was coming from Chini -Bungalow to Kufri and was carrying some charas. On receipt of this information PW -6 formed a raiding party and associated two independent witnesses, namely, PW -3 Lekh Raj and PW -4 Krishan Chand. This party started moving towards Chini -Bungalow. Barely at a distance of 150 yards from Kufri they came across the accused who was carrying a bag on his shoulder. On seeing the police officials, the accused tried to run away but was over -powered on the spot. PW -6 gave his identification to the accused and expressed his desire to search his bag. He also gave an option to the accused of being searched before a magistrate or before the police officer. The accused opted to be searched before the Dy. Superintendent of Police. Thereafter, consent memo Ext.PB was prepared. PW -5 and PW -6 gave the search to the independent witnesses before conducting search of the accused vide search memos Ext. PE and Ext.PF. Thereafter, bag of the accused was searched and inside the bag one polythene cover was found in which charas had been kept. Thereafter, the charas was weighed and it was found to be 1 Kg. and 500 grams. Two samples of 25 grams each were taken out of this charas for the purpose of chemical analysis. The samples and the remaining bulk charas were sealed in separate parcel sealed with seal ''A '' and taken into possession vide seizure memo Ext.PJ. Thereafter, PW -6 sent special report Ext.PK to the police. PW -5, Inspector, Gurmeet Singh informed the accused about the grounds of his arrest orally as well as vide memo Ext.PG. He also recorded the statements of the witnesses and prepared the site plan Ext.PL. According to him he deposited the case property with MHC Sita Ram in the Police Station. On receipt of the report of the Chemical Examiner Ext.PM whereby the sample was found to be that of charas, challan was filed against the accused.

(3.) OUT of the two independent witnesses, PW -3 Lekh Raj did not at all support the prosecution. He was declared hostile and cross -examined. According to him, he was called by PW -5 SHO, Gurmeet Singh from his shop and taken to the road leading to Chini -Bungalow and at a distance of 1/2 kilometer the accused was sitting on the road alongwith other police officials who had already taken him in custody. This witness stated that no search of the accused was conducted in his presence. In cross -examination by the public prosecutor he admitted that 1 Kg. 500 grams of charas was weighed in his presence by the police, but according to him, this was never recovered from the accused in his presence. He also admitted the fact that two samples were drawn. According to him, he had signed certain papers but he had neither read nor inquired about the contents thereof since he was in a hurry. He further stated that he and Krishan Chand (PW -4) had gone together to the spot in question.