BAJINDER SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THE present appeal has come up for consideration after leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to the impugned judgment dated 25.02.2009, passed by the learned Special Judge (Sessions Judge), Kinnaur Sessions Division at Rampur, convicting the accused namely Bajinder Singh, for the offense under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') and verdict was given on 25.02.2009, whereby the accused -respondent was convicted and sentenced to undergo for rigorous imprisonment for 10 years and fine of Rs, 1,00,000/ - under Section 20 of NDPS Act and in default of payment of fine, the appellant shall further undergo simple imprisonment for one year.

(2.) IN order to adjudicate the present appeal, it is necessary to deal the prosecution story. As per prosecution story, on 02.01.2007 at about 9.30 A.M., PW -7 Rajinder Kumar, ASI/SHO, Police Station, Ani, in connection with routine patrol duty, was present in the area of Chamba nullah. PW -4 Pushap Dev H.C., PW -6 Sunder Singh Constable and Bhup Singh Constable had been accompanying PW -7. At such time, the accused person was noticed on way from Shawad towards Chamba nullah and Nagan. The accused person had been carrying one bag of green colour in his hand. At the sight of the police, the accused person had felt scared and had tried to escape. PW -7, with the help of his men, had overpowered the accused person. The accused person was suspected in possession of contraband goods covered by the Act. PW -7 had deputed PW -6 to send for non -official witnesses in case some one was available in the nearby area. PW -6 had reported that no one was available in the nearby area, the accused person having been apprehended in secluded site of Chamba nullah. As such, PW -7 in the presence of police officials had given an option of search before the Magistrate or Gazetted Officer to the accused person vide consent memo Ext. PB. The accused person had consented for search before the police party headed by PW - 7 as per his endorsement under his signatures on consent memo Ext. PB. Thereafter PW -7 had offered himself for search by the accused person vide search memo Ext. PC. Nothing incriminating had been recovered from PW -7. In the presence of police officials and the accused persons, the search of the bag of the accused person had been carried out by PW -7, the bag was found containing two polythene packs each containing charas in the shape of billets. PW7 had weighed the charas and had found the same 1850 grams. PW -7 had drawn two samples of 25 grams each from the charas recovered from the accused person. Sample packets of charas and the rest of the charas along with green bag and polythene packs had been separately sealed in three packets with seal X had been taken into possession vide recovery memo Ext. PD. The accused person had been arrested after having apprised him of the grounds of arrest vide document Ext. PE. Requisite number of NCB form had been updated. Clear impression of seal X had been separately taken. Seal X had been handed over to PW -4 when done with. PW -7 had prepared report (Ruqua) Ext. PH and had routed the same to Police Station through PW -6 for registration of FIR. PW -7 had deposited the case property with the MHC. PW -7 had prepared special report, copy Ext. PA and had routed the same to SDPO, Ani on 02.01.2007. One sample packet of charas had been got examined from Director, Central Forensic Science Laboratory (CFSL), Chandigarh, who vide report Exhibit PJ had found the same containing charas.

(3.) PW -7 ASI Rajinder Kumar, Investigating Officer has supported the prosecution case. He has narrated that he conducted the search of the bag, carried by the accused, which contained two polythene packets in which the charas in shape of candles, was found. The recovered charas was weighted with the scale lying in the kit of the Investigating Officer and the charas was found 1.850 Kg and out of the recovered charas, two samples of 25 grams each were separated for chemical analysis. The samples were sealed with three seals of 'X'. The remaining charas was again put in the aforesaid two polythene packets and then put in to the same bag and sealed in a cloth parcel, with 9 seals of 'X' and specimen seal impression was also taken on separate white cloth piece and the seal after 'its use was handed over to Head Constable Pushap Dev.