BHAGWAN DASS Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The abovenoted two appeals arising out of the judgment dated 10-5-2000 of the learned Special Judge, Kullu, in Sessions Trial No. 15/1999 are being disposed of by this single judgment. Each of the two appellants (hereinafter referred to as the accused) stands convicted for the offence under S. 20, Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) by the learned Special Judge and sentenced to rigorous imprisonment for ten years and to pay fine of Rupees one lac. In default of payment of fine, each of the two accused has been sentenced to undergo simple imprisonment for a further period of two years.

(2.) The prosecution story, briefly stated is this. On 9-1-1999 at about 9-30 a.m., PW. 8 Bhim Sen received a secret information on telephone about two unknown persons sitting on the roadside Sidhwan and that such persons were suspected to be in possession of Charas. The information so received was duly entered in the daily diary and a copy thereof was sent to Superintendent of Police, Kullu, P.W. 8 Head Constable Bhim Sen along with certain police constables proceeded towards the spot. PW. 1 Kamlesh Rahi and one Uttam Ram were also associated by him. At about 9-45 a.m. the party headed by PW. 8 Bhim Sen reached the spot. He found two persons, namely the two accused, sitting on the roadside and a bag was lying in between them. On inquiry, the two accused disclosed their names and addresses. PW. 8 Head Constable Bhim Sen then expressed his suspicion about the two accused being in possession of charas. He enquired from them if they would like to be searched by him at the spot or would like to be searched in the presence of a Magistrate or a Gazetted Officer. Both the accused opted to be searched by PW. 8 Head Constable Bhim Sen. Search of the bag was carried out and one container of five litres wrapped in a shawl was recovered therefrom. On opening such container, it was found to contain frozen ghee. The container was then shook by PW. 8 Head Constable Bhim Sen. On such shaking of the container, some sound was heard. PW. 8 Head Constable Bhim Sen took out the ghee from the container and underneath it charas in the form of tablets wrapped with paper was recovered. On weighment the charas was found to be 1100 grams. Two samples weighing 25 grams each were taken out. Such samples and the remaining part of the charas recovered were then separately sealed with the seal Mark 'A' and taken into possession vide memo. Ex. PW 1/C. The two accused were, therefore, arrested after informing them about the grounds of their arrest. PW. 8 Head Constable Bhim Sen on his return to the Police Station produced the three sealed packets containing the samples and the balance charas recovered before the Incharge, Police Station PW. 7 Inspector Jagdish Chand, who resealed the packets with his own seal mark 'M' and deposited the same in the Malkhana for safe custody. The sample on having been analysed was found to be that of charas.

(3.) After the completion of investigation, the two accused were sent up for trial for the offence under Section 20, NDPS Act. They pleaded not guilty and claimed trial. The case of the two accused is that of denial. They pleaded that they were arrested by the police on 6-1-1999 at about 5.30 p.m. from Banjar Bus stand and were produced before the Magistrate only on 9-1-1999. The present case has been falsely foisted on them.