THE STATE OF H.P. Vs. SANT RAM

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 and order dated 18.02.1997, passed by the learned Sessions Judge, Solan, District Solan, in Sessions Trial No. 1 -S/7 of 1996, acquitting the alleged accused under Section 18 of the Narcotic Drugs and Psycho tropic Substances Act, 1985, in reference to FIR No. 187 of 1996.

(2.) PROSECUTION case in brief is that on 13.08.1996, accused -respondent was present at new bus stand, Saproon, Solan, at about 10 p.m. and when he saw Ranjit Singh, Incharge, Police Post, Saproon, alongwith other members of the raiding party viz. Pawan Kumar, Paras Ram and Dayal Chand Constable No. 514 and tried to escape, however, he was overpowered by the police party. Accused was found carrying an envelop in his hand and he was informed that whether he is ready to be searched by the police party or by the Magistrate or by a Gazetted Officer. On his agreeing to search, a search was made and 500 grams of opium was recovered from a polythene. Two samples, each weighing 25 grams, were taken and sealed with seal, bearing mark 'Y', and the same were sent to the Chemical Examiner. Thereafter, FIR No. 187 of 1996, dated 13.08.1996, was registered against the accused -respondent.

(3.) ON analysis of the prosecution witnesses and the material on record, we notice that the prosecution has relied upon the testimony of PW -6 ASI Ranjit Singh, PW -1 Pawan Kumar, PW -2 Paras Ram and PW -5 Constable Dayal Chand to establish that the contraband was recovered from the accused -respondent. As per the statement of PW -6 ASI Ranjit Singh, he constituted a raiding party at new bus stand, Saproon, Solan, and gave memo, Ex. PA, in writing to the accused -respondent, to exercise his option, whether he likes to be searched by a Magistrate or a Gazetted Officer and on his agreeing, search was made by ASI Ranjit Singh PW -6 the contraband was found being carried openly in the right hand of the accused -respondent, but, Pawan Kumar PW -1 did not support the prosecution case and has very categorically stated that the search was not made before him and nothing was recovered in his presence. In cross -examination also, he did not support the prosecution case. Paras Ram PW -2 has stated that the accused himself was carrying a polythene bag in his hand. The perusal of the statement of Shri Paras Ram gives an impression that the accused himself walked into the trap of the police raiding party headed by Shri Ranjit Singh (PW -6). However, testimony of PW -1 and PW -2 does not support the prosecution case.