NANHA Vs. STATE OF H.P.

JUDGEMENT

(1.) THIS appeal has been preferred by the appellant against the judgment of the Learned trial Court convicting him for offences under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (here in after referred to as the 'Act ') and sentencing him to undergo rigorous imprisonment for ten years and fine of Rs. one lac and in case of default in the payment of fine to further undergo rigorous imprisonment for three years.

(2.) THE prosecution case in brief is that the Appellant herein was arrested on 7th January, 2005 when police party comprising of PW -8 ASI Tarlok Chand, PW -6HC Palam Singh, HC Jagdish Chand, PW -2 Constable Sandeep Kumar, PW -3 Constable Vijay Kumar, Constable Bhagat Ram, Constable Ajay Kumar and Constable Nar Bahadur were on routine traffic checking at Kalhel. Ataround 7.40 A.M. a bus bearing No. HP -48 -0919 of the Himachal Road Transport Corporation, which was on way from Bhanjararu to Chamba, was stopped for checking in the presence of Balbir Singh PW -1, who was the Inspector of Himachal Road Transport Corporation, Chamba Depot and Sant Singh. They spotted a man, who was later on identified as the accused, seated on seat No. 25 clutching a black coloured bag which was on his lap. The bag was opened and two pouches of cloth were found to contain Charas in the shape of sticks. On being questioned, he disclosed his name as Nanha (accused in this case). Charas from these bags was mixed up and ASI Tarlok Chand PW -8 deputed Sant Singh to bring weights and weighing scales which direction was duly complied with. The Charas was weighed and found to be 2 Kg. Out of this, two samples of 20 grams each were separated. They were put in two empty cigarette boxes which were wrapped and sealed with the impression 'D '. The remaining Charas weighing 1 Kg. 960 grams was put in the same cloth pouches and sealed with seal 'D '. The specimen impression of the seal was retained/affixed on a piece of cloth Ex. PC and the seal after use was handed over to Shri Balbir Singh. The parcels were taken into possession vide Memo Ex. PA in the presence of the witnesses. NCB form was prepared and other investigation commenced. Seized samples and NCB form were sent to the Chemical Examiner CTL, Kandaghat for analysis.

(3.) THE Learned Court, on the evidence on record and adverting to the principle that these witnesses had no animosity to state anything against the accused proceeded to convict him. The judgment proceeds in 31 paragraphs out of which 24 paragraphs are paraphrasing what the witnesses state and abruptly in two paragraphs the Learned trial Judge decided the entire controversy before it by invoking the principle of law holding that the police witnesses are not interested witnesses and have no motive to implicate the Appellant. As principle of law we have no doubt in our mind that thesis the established principle in case the testimony is otherwise reliable. However, whether the evidence itself was a pointer to the effect as to whether the accused is guilty or not, the Learned Judge has failed to apply his mind and has given short shrift to the evidence of other witnesses. The Learned trial Court being the Court of first instance namely; the Learned original Court, was duty bond in law to determine the principle or otherwise of the facts as established on the record and not to gloss over the contradictions merely for the reasons that they became inconvenient to the prosecution. The contradiction in the evidence of this witness with holding, Sant Singh, from whose possession the weights and measures, weighing scales were procured, has not been considered by the trial Court.