STATE OF H P Vs. ATMA SINGH

JUDGEMENT

(1.) THE present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure in reference to judgment dated 4.7.2001, passed by Learned Sessions Judge, Una, H.P., in Sessions Case No.3 of 2001 under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), acquitting the alleged respondent-accused in reference to FIR No.136 of 2000, dated 12.9.2000.

(2.) THE prosecution case, in brief, is that ASI Askhay Kumar (PW.10) on 12.9.2000, at about 4.35 P.M. while on patrol duty near Police Station, Amb, got information at about 6.30 P.M., that accused Atma Singh was indulging in sale of poppy husk. PW.10 ASI Akshay Kumar reached the spot and associated two independent witnesses, namely, Uttam Chand (PW.2) and Bidhi Chand (PW.3) and after informing the accused regarding search of the shop of the accused was made and poppy husk weighing 1 kg. 300 grams was recovered. Two samples of 100 grams each were separated from the recovered poppy husk and sealed in separate parcels with seal 'HS'. Remaining poppy husk was sealed in a parcel Ex.P1 and after taking into possession the seal impressions, the seal was handed over to Uttam Chand (PW.2) for safe custody. THE Investigating Officer, thereafter, prepared the site plan (Ex.PP) and filled in NCB form (Ex.PR). THE accused was taken to SHO Police Station, Amb and the case property was submitted, which was resealed with seal 'S', thereafter, information was sent to Superintendent of Police, Una alongwith a special report (Ex.PA).

(3.) PW.2 Sh.Uttam Chand, an independent witness, and member of the raiding party, has stated that he went to the shop of the accused, where accused was asked by the police personnel as to whom the accused wanted to give the search, on his agreeing, search of the shop of the accused was conducted in which poppy husk was recovered vide memo (Ex.PD). The poppy husk was kept in a polythene wallet, however, PW.2 Uttam Chand did not know where the wallet was kept. Out of recovered 1 kg. 300 grams of poppy husk, two samples of 100 grams each were separated from the same and were sealed in two separate parcels with seal having impression 'HS'. The specimen impressions of the seal (Ex.PE) were taken in his presence and the seal was handed over to PW.2 Uttam Chand for safe custody. The personal search of the accused was also conducted vide memo (Ex.PG), during search some papers were recovered. PW.2 Sh.Uttam Chand, in cross-examination, has stated that there was great rush due to "Puranmashi" on that day in the Mairi Fair and about 40-50 thousands people were present there and the shop of the accused was in a tent which was put up on all sides. Anyone could enter the shop through the walls of the shop, which were of tarpaulin and actually people were entering the shop through tarpaulin. The entire family members of the accused were working in the shop. The accused has four sons and wife. Accused has one daughter-in- law also and all those family members visit the shop in question. There is a passage to the well through that tarpaulin and people were going to fetch water from the well through the shop of the accused. In view of the testimony of PW.2 Sh.Uttam Chand, made in cross-examination, the police party entered the shop and took the search and brought out the polythene wallet. Thereafter, the police party sat on a wooden bench outside the shop and prepared the papers. All the papers were prepared after the aforesaid recovery.