JURGEN LUDWIG SCHMITT Vs. STATE OF H.P.

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 8.3.2000 of Special Judge, Kullu in Sessions Trial No. 18 of 1999 convicting the appellant -accused under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentencing him to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000, in default to undergo simple imprisonment for two years. In order to appreciate the controversy, we are herewith giving the essential facts.

(2.) As per the prosecution story, on 15.1.1999 at about 9.30 a.m. PW 10 ASI. Sh. Kanwar Singh along with PW -9 Constable Om Chand and other police officials was on routine patrol duty in Manikaran Bazar. PW -10 received a secret information that one foreign national having beard and wearing white clothes and putting imprinted shawl of Hare Rama Hare Krishna was coming from Sangna bridge to Manikaran side who had charas in his possession. PW -10 sent information in writing Ext. PW -6/A under Section 42(2) of the Act to his superior officer and himself in the company of other police officials proceeded towards bus stand, Manikaran where he associated two independent witnesses, namely PW -1 Diwan Singh and PW -2 Ram Prasad in the raiding party. At about 10 a.m. a foreign national reached at bus stand Manikaran carrying one bag in his hand and second bag on his back who on inquiry was the accused a Chilena National. The police party asked him to produce his passport which on verification was found valid. PW -10 then told the accused that he had the suspicion that he (the accused) was in possession of Charas in his bag. Consent memo Ext. PW -1/A was prepared by PW -10 apprising the accused whether he opted to be searched in the presence of Magistrate or the gazetted officer. The accused agreed to give his search to PW -10 in the presence, of PWs 1 and 2 independent witnesses. Before the bag of the accused was searched, PW -10 ASI. Kanwar Singh gave his personal search vide memo Ext. PW -10/A to the Police Officials. On search of the bag of the accused besides his personal luggage, one plastic envelop was recovered by the police containing Charas in the presence of PWs 1 and 2. On weighment the weight of the Charas was found 500 grams out of which two samples of 25 grams each were taken which were sealed with seal impression K in packets and the remaining Charas was also sealed in separate packets. The seal impression K after its use was handed over to PW -1. The accused was also informed about the grounds of arrest vide memo Ext. PW -l/C. Thereafter Rukka Ext. PW -7/A was sent to Police Station Kullu by hand of PW -9 at about 11.30 a.m. On the basis of Rukka formal First Information Report Ext. PW -7/B was registered by PW -7 Nihal Chand Inspector/S.H.O., Police Station, Kullu at 2. p.m. The accused was arrested by PW -10 at the spot. After registration of the case PW -7 Station House Officer immediately reached at the spot. He took into possession three sealed parcel produced by PW -10 which were re -sealed by him with seal impression H. N.C.B. form was also prepared by PW -10 on which specimen seal of impression H was appended by PW -7. PW -7 prepared site plan mark Ext. PW -7/C at the spot and also recorded the statements of the witnesses under Section 161 Cr.P.C. On return to Police Station, PW -7 deposited the case property to PW -5 Moharer Head Constable Lai Chand in the Police Station together with N.C.B. form on 16.1.1998. PW -7 personally handed over the special report Ext. PW -6/B prepared under Section 57 of the Act to the Deputy Superintendent of Police Kullu. On 18.1.1998 one sealed parcel of the Charas was sent by PW -5 in hand of PW -4 Constable Dharam Chand to Forensic .Science Laboratory, Kandaghat together with N.C.B. form in triplicate and sample of seal.

(3.) On analysis of the contraband, the Chemical Examiner of Forensic Science Laboratory, Kandaghat (Himachal Pradesh) found the contents of the contraband charas and submitted his report Ext. PW -7/D. On receipt of the report PW -7 submitted charge -sheet against the accused for the commission of the offence under Section 20 of the Act. The accused pleaded not guilty to the charge and claimed to be tried.