STATE OF H.P. Vs. PREM LAL

JUDGEMENT

(1.) This appeal by the State is directed against the judgment dated 26.6.1995 passed by the learned Additional Sessions Judge, Shimla in Sessions Trial No. 6 -S/7 of 1995, whereby he acquitted the accused of having committed an offence punishable under Sec. 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act).

(2.) The prosecution case, in brief, is that on 7th December, 1994 a police party headed by PW -6, who at the relevant time was SHO, Police Station, East, Shimla, was on patrol duty. At about 7 a.m. when they were near the Nav Bahar Chowk, they saw one person near the said crossing who was carrying a bag in his hand. On seeing the police this man got perplexed and tried to run away towards the side of St. Bedes College. This aroused suspicion in the mind of the Investigating Officer. The person was chased and apprehended. He disclosed his name to be Prem Lal i.e. the accused. According to the prosecution one witness Gulaba Ram, PW -1, was present at the bus stop near the place of occurrence. He and other police witnesses were associated with the search. On search of the bag which the accused was carrying, charas was recovered which on being weighed was found to weigh 7 k.g. Out of this bulk charas two samples of 50 gms. each were separated for the purpose of chemical examination. Thereafter, the bulk charas and the two sample parcels were sealed separately with seal 'N'. The seal was handed over to Gulaba Ram. During investigation the accused disclosed that he had concealed some more charas in his village Niharkhan. The Investigating Officer PW -6 obtained a search warrant from the Court at Shimla and visited the spot. On disclosure being made by the accused a tin was recovered from a heap of sand near the Naina Devi Temple at Village Niharkhan. From this tin, 400 gms. charas was recovered. Again two samples of 10 gms. each were taken and again sealed with seal 'N'. The other codal formalities were completed both at Nav Bahar Chowk and at village Niharkhan. Two reports Exts.PW -6/H and PW -6/J (though this report is actually marked as Ext.PWG) were received. Both the samples were opined to be of charas and thereafter the challan was filed against the accused. The defence of the accused was of denial and he claimed that he has been falsely implicated in this case by the Investigating Officer PW -6.

(3.) After trial the learned trial Court acquitted the accused holding that the provisions of Ss. 42 and 50 of the NDPS Act have not been complied with. Sec. 42 is not applicable since the recovery was not made in a private place and Sec. 50 is not attracted since the recovery was made from the bag which the accused was carrying and not from his person. Reference may be made to the decision of the Apex court in State of H.P. v/s. Pawan Kumar Latest HLJ, 2004 (SC) 1247.