STATE OF H.P. Vs. KAMAL KUMAR KAUSHAL

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 against the judgment dated 22.8.2001 passed by the learned Sessions Judge, Solan acquitting the Respondent/accused for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short referred to as "Act" in reference to FIR No. 44/2001, Police Station Solan.

(2.) THE prosecution case is that on 7.3.2000, Shri Surender Pal, Sub Inspector, Nalagarh received an information that the accused was involved in the trade of contraband goods. Accordingly, a trap party was constituted of Sohan Lal, H.C. Manoj Kumar, constable and Prem Kumar, constable, with two independent witnesses namely Gulab Rai and Jagdish Chand (not examined). The said Surender Pal, proceeded to apprehend the accused in the presence of independent witnesses search of accused was made, after obtaining the consent of the accused Kamal Kumar Kaushal, as whether he was agreed to be searched by him or in presence of Magistrate or Gazetted Officer. On his agreeing for search by the police and on his search 40 grams of charas was recovered from a polythene pouch being carried by accused in his right hand. Two samples were taken which were sealed and the remaining charas was also sealed separately. The samples were sent for chemical examination. After the completion of the investigation, the accused was charged for the aforesaid offence.

(3.) PW 1 Gulab Rai, an independent witness has stated that on personal search, a polythene pouch was recovered from the right hand of the accused. PW1 has stated in cross -examination that no other document was served to the accused before obtaining his consent. PW2 Kamal Nain, MHC has stated that on 7.3.2001, SI Surender Pal deposited three parcels of the case property in this case with him bearing seal impression "K". On 8.3.2001 one of the sample was sent through C. Prem Lal vide R.C. No. 32/2000, which he deposited in CTL, Kandaghat. PW3 Prem Singh, H.C. has stated that on 8.3.2001 MHC Kamal Nain handed over one parcel to him vide R.C. No. 32/201, which was deposited by him in CTL, Kandaghat. PW4 Naresh Kumar provided scale and weights to one Constable, who name is not known to him. PW5 Devinder Kumar, H.C. received special report through courier service brought by one constable.