STATE OF HIMACHAL PRADESH Vs. JAGDISH KUMAR

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 dated 18.1.2002 passed by the learned Addl. Sessions Judge, Mandi, H.P., in Sessions Trial No. 14 of 2001 acquitting the Respondent/accused for offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the 'NDPS Act ') in reference to F.I.R. No. 65/2001 dated 1.2.2001, Police Station, Balh, District Mandi, H.P.

(2.) THE prosecution case in brief is that on 1.2.2001 at about 7.40 a.m. HC -Bhupinder Pal, Investigating Officer, along with HC Joginder Pal and Const. Rajesh Kumar and Rakesh Kumar while on patrol duty at village Kummi received a secret information that a passenger bus belonging to Chandan Travels bearing registration No. HP -33 -3375 is coming from Rajgarh to Mandi in which one of the passengers wearing a blue coloured jacket was carrying contraband articles. HC -Bhupinder Pal Singh (PW -5) sent such intimation/Ext. PD to his superior officer Additional Superintendent of Police, Mandi and he along with other police officials proceeded towards Beura Chowk and laid a Naaka. The said bus when arrived near Beura Chowk at about 8.10 a.m., was stopped, in which accused wearing a blue jacket sitting on seat No. 20 was inquired and written option/Ext. PA was taken from him about the search and after obtaining his consent, the bag carried by him was searched in presence of Sita Ram /(PW -2)/driver of the said bus and Vishnu Ram conductor of the bus (not examined). On search, a polythene envelop was taken out containing charas in the shape of sticks from the black and purple bag having yellow strips and on weighment 440 grams of charas was seized. Out of it two samples of 10 grams each were taken out separately and the remaining 420 grams of charas was sealed in separate parcel and the sample and the bulk were sealed with seal impression - 'T '. Ruka/Ext. PE was sent to Police Station Balh by PW -5 through HC -Joginder Pal (PW -1) at about 9.45 a.m. and in that reference a formal F.I.R./ Ext. PF was registered. ASI -Ram Lal /(PW -9) carried out the investigation after visiting the spot and prepared special report Ext. PH and sent the same to Superintendent of Police, Mandi on 2.2.2001 which was received to the office of the Addl. Superintendent of Police on 2.2.2001 at about 6.30 p.m. The case property was kept at the police station. One sample along with seal impressions 'T ' and 'L ' was sent to the chemical examiner in sealed condition along with NCB - Form /Ext. PJ for chemical analysis. After investigation accused/Respondent was charged for the aforesaid offence.

(3.) PW -1 HC -Joginder Pal in his endeavour to support the prosecution case has stated that the accused sitting in the bus wearing a dark blue jacket was asked to get down from the bus along with his luggage. The accused came down from the bus with bag of black and purple colour with yellow strips. One Sh. Bali Ram was called from the nearby shop along with the driver and conductor of the bus and in presence of HC -Bhupinder Pal, option was given to the accused regarding search and after obtaining consent in writing search of the bag carried by the accused was conducted from which a golden purse was taken out from which, a polythene packet was kept from which charas in the shape of billets were found and weights and measures were arranged by Bali Ram and on weighment 440 grams charas was found. After taking out two samples the bulk was kept separately and seal impression -T was put on each sample and bulk. Recovery memo /Ext. PB was signed by the accused, Bali Ram and the driver and conductor of the bus. PW -1 also brought Ruka to the Police Station and the same was handed over to ASI -Ram Lal and came back to the spot along with ASI -Ram Lal after registration of the F.I.R.. PW -1 in cross -examination has endeavoured to reiterate the statement made in the examination -in -chief that all the police officials had received the secret information at village Kummi at about 7.30 - 8.00 a.m. on 1.2.2001 and all the four police officials including PW -1 went to Beura Chowk, however, such secret information was not put into writing. PW -1 also stated in cross examination that many houses are on both the side of the road from Kummi to Beura Chowk and nearly 500 to 700 persons reside there. PW -1, self stated that 2 - 3 houses are there at Beura Chowk. As stated by PW -1 in cross -examination the police officials reached at Beura Chowk at about 8.00 a.m. and the raiding party at Beura Chowk was formed where Bali Ram was associated who had been running a petty shop of karyana and tea -stall. The shop of Bali Ram was located at a distance of half kilometer from Beura Chowk towards Kummi, however, HC -Bhupinder Pal had sent a constable to call witness Bali Ram from his shop. At the relevant time seven - eight passengers were travelling in the said bus in question and passengers were asked to join investigation, however, they refused. PW -1 further stated that police party remained at Beura Chowk till 12.00 - 12.30 noon and the bus was stationed there. PW -1 further stated that he did not remember whether the parcels were signed by the witnesses or not.