STATE OF HP Vs. MAHESH KUMAR

JUDGEMENT

(1.) Out of four respondentsaccused, three respondentsaccused were being represented by their respective learned counsel and only bailable warrants were issued for procuring the presence of respondentaccused No.4, however, in reference to our order dated 28th July, 2010, respondent accused No.4 is personally present in the Court, therefore, he shall be heard on merits and at his choice, he shall be represented by Mr. Virender Rathore, Advocate for respondent accused No.3.

(2.) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 8.3.1996, passed by Learned Additional Sessions Judge, Kangra at Dharamshala, H.P., in Sessions Case No. 18K/VII1994, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), acquitting the alleged accused/respondents.

(3.) The prosecution case is that a search of four respondentsaccused, namely, Mahesh Kumar, Baldev Kumar, Partap Chand and Rajesh Kumar, was made on 26.3.1994 at about 6.45 P.M., near ForseithGanj, while they were coming in Maruti Van No.HP.023809 being driven by accused Partap Chand. S.I. Hira Lal, the then Station House Officer, Police Station, Dharamshala, received a secret information that suspected persons were carrying 'charas', on such information, FIR No.82 of 1994 was recorded in the Police Station and an information was given to Dy.S.P., and SI Hira Lal accompanying ASI Kashmir Singh, ASI Gurdas Ram, Constables Budhi Singh, Milap Chand and Ajit Singh, went to ForeseithGanj in a Tempo No.HIK287, driven by Constable Mohinder Singh. On the way, Devi Lal Constable alongwith Manoj Kumar Pradhan and Vijay Kumar as independent witnesses joined and Nakka was arranged and accused were apprehended and they were told that whether they wanted to be searched by the police or by the Gazetted Officer, on their agreeing personal search of accused Mahesh Kumar was made. Accused Mahesh Kumar was said to be occupied front seat of the van, being driven by accused Pratap Chand, was carrying 1700 grams 'charas' wrapped in a polythene and kept in a cloth bag, hung by him under his pull over. Whereas, no other incriminating material was recovered from accused Baldev Kumar, Pratap Chand and Rajesh Kumar. Out of 1700 grams of 'charas' recovered from accused Mahesh Kumar, two samples of 65 grams each were sealed separately and were put in different packets with seal 'C' and the remaining 'charas' was kept in bulk and samples were sent for chemical examination.