STATE OF HIMACHAL PRADESH Vs. DEEP CHAND

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgement dated 12.3.2003 passed by the learned Sessions Judge, Sirmaur, District Nahan in Sessions Trial No. 13 -ST/7 of 2002 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985(hereinafter referred to as NDPS Act).

(2.) THE prosecution story in brief is that on 13.2.2002 PW -9 ASI Chaman Lal alongwith H.C. Sehdev, C. Bhadur Singh and Pawan Kumar had laid a Naka on the Haripurdhar road about one Km from Andheri towards Sangrah. At about 9.00 am a bus belonging to the HRTC was stopped. The police officials got into the bus and when PW -9 reached seat No. 41 he saw a young boy sitting there. The boy was wearing a jacket which was swollen at the belly. PW -9 pressed the swollen jacket and felt something in the shape of sticks and suspected that it might be charas. He thereafter recorded the reasons of his belief Ext.PW -8/A and sent the same through C. Pawan Kumar to the police station. Thereafter the Conductor and Driver and two other independent witnesses PW -4 Sahi Ram and one Subain Singh, who were present in the bus, were associated. The witnesses and the accused were asked to alight from the bus and then the accused was informed about his right to be searched by a Magistrate or Gazetted officer or the police vide memo Ext.PW -4/A. The accused gave his consent in writing that he was willing to be searched by the police. PW -9 then got himself searched by the accused. Thereafter the muffler which was wrapped around the belly of the accused was untied. Inside this muffler there was another parcel wrapped in a red cloth (Parna). When this Parna was opened, charas was found in the shape of sticks. Thereafter C. Bhadur Singh was asked to bring the weighing scale. On weighment the charas was found to be 1 Kg 480 grams. Two samples of 20 grams each were taken and sealed separately and remaining charas was also sealed with seal 'H '. The seal was handed over to witness Shahi Ram and the case property was taken into possession vide memo Ext.PW - 4/C. Ruqua was sent to the police station which is Ext.PW -8/B. Thereafter the case property was handed over to PW -7 ASI Madan Lal, who prepared the site plan and recorded the statements of the witnesses. He handed the case property as well as the accused to SHO PW -8 SI Bansi Lal, who in turn resealed the case property with seal 'T ' and deposited the same in the Malkahana alongwith seal and NCB form. Next day this witness after preparing the inventory, applied to the Tehsildar for taking photographs and the photographs of the sealed parcels were taken which photographs are Ext.P -1 to Ext.P -3. Special report was sent to the Superintendent of Police, Sirmaur.

(3.) AS far as Section 42 of the NDPS Act is concerned, in our opinion there was no need to comply with the provisions of Section 42 since this was not a case of prior information and in any event the search was made from a public conveyance i.e. HRTC bus and the provisions of Section 43 and not Section 42 would be applicable.