STATE OF HIMACHAL PRADESH Vs. SARAN DASS

JUDGEMENT

(1.) THIS is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Sessions Judge, Chamba, dated 30.11.2002, vide which he acquitted the respondent of the charge framed against him under Section 20 of the Narcotic Drugs and Psychotropic Substances Act and hereinafter referred to as 'the NDPS Act '.

(2.) BRIEFLY stated, the facts of the case are that on 1.10.2001 PW -7 Kulwant Singh Inspector, alongwith other police officials was present at Bakani bridge at about 4.15 A.M. PW -1 Jodh Singh was also standing there waiting for the bus. Meanwhile, a person came from Rakh side, who was holding an envelope Ext. P -3 in his hand and when he saw the police party, he suddenly took a turn and started running. On suspicion, he was chased and he fell down and received minor injuries. He disclosed his name as Saran Dass. The search of his bag was conducted and Charas wrapped in a white envelope was recovered. Constable Rajesh Kumar was sent to bring weights and scale He brought PW -2 Dharam Chand to the spot. The Charas was weighed and was taken into possession as per the procedure. It was found to be 2 Kgs. Two samples were taken and these were taken in possession vide recovery memos and were sealed at the spot. He sent Ruka Ext. PW4/A to MHC for registration of the case and deposited the case property with the MHC on return. On receipt of the report of Chemical Examiner and on completion of the investigation, the challan was filed in the Court of learned Sessions Judge, who tried the respondent as detailed above, leading to his acquittal.

(3.) ON appraisal of the record of the case, it is very much clear that PW -7 Kulwant Singh was the Investigating Officer of the raiding party, who was present at Bakani bridge at about 4.15 A.M. He stated that PW -1 Jodh Singh was also standing there waiting for the bus and not that he joined Jodh Singh as a witness. He further stated that constable Rajesh Kumar had brought PW -2 Dharam Chand with weights and scale and he did not state that the said Dharam Chand was also associated as an independent witness. It is, therefore, clear from the statement of the Investigating Officer that one witness was standing at the spot and another came with weights and scale. But he did not state that they were associated as independent witnesses at the time of recovery of the Charas or its weighment or its taking in possession by him. It is, therefore, clear that mandatory provisions of Section 100(4) Cr.P.C. were not complied with. These provisions pertain to the search of a place that two independent witnesses must be associated. However, these provisions also apply in the case of personal search. In case, the Investigating Officer offers some explanation that it was early morning or that the witnesses were not available there and there were no shops and houses and, therefore, he could not comply with these mandatory provisions. In case such an explanation is offered by the Investigating Officer and that explanation is found plausible, the Court can hold that the mandatory provisions of Section 100(4) Cr.P.C. were complied with. However, statement of the Investigating Officer suggests that he neither took any steps to associate the independent witnesses, nor gave any explanation for non -compliance 16/5/2014 Page 48 Ranjit Singh Versus State Of Himachal Pradesh thereof.