STATE OF H.P. Vs. GURMAIL SINGH ALIAS BABA SON OF GURDIT SINGH, R/O VILLAGE KANTE, TEHSIL AND DISTT. UNA, H.P.

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment dated 6.10.2004, passed by the learned Sessions Judge, Una in Sessions Case No. 1 of 2004, whereby he acquitted the accused of having committed an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act'). The prosecution story, in brief, is that PW -5 HHC Sher Bahadur while on patrolling duty at village Kante, received secret information that accused Gurmail Singh was selling poppy husk at his house and in case a raid is conducted in the house huge quantity of poppy husk may be recovered. Thereafter, he reported the matter to PW -12 ASI Harbans Lal Rana who was also on patrolling duty alongwith PW -10 H.C. Nardev Singh and some other police officials. The statement made by PW -5 Sher Bahadur was treated to be a statement under Section 154 Cr.P.C. and recorded as Ext.P -L by PW -12 ASI Harbans Lal Rana. Thereafter ruqua was sent through PW -4 Constable Sanjeev Kumar to Police Station, Una for registration of FIR. Simultaneously, information as required under Section 42(2) of the Act was sent to the Superintendent of Police, Una through PW -3 Constable Suresh Kumar.

(2.) THEREAFTER , PW -12 formed a raiding party and two independent witnesses PW -1 Iqbal Singh and PW2 Pargan Singh were associated with the raiding party. The house of the accused was raided, where he was found sitting on a cot. The accused was informed that it was suspected that he was dealing with contraband (poppy husk) and both his house and his search was to be conducted. He was informed about his right to be searched by a Magistrate or Gazetted officer or the police. The accused allegedly agreed to be searched by the police vide Memo Ext. PA. When the search of the accused was conducted, it was found that he was concealing a bag below the arm pit and out of this bag another polythene bag was recovered from which 2 Kgs, 200 grams of poppy husk was recovered. There was another tin box inside the bag and two samples of 250 grams each were drawn and sealed with a seal impression 'A' and thereafter the entire poppy husk was taken into possession vide recovery memo Ext. PC. The accused was thereafter arrested. After arrest, the accused made a disclosure statement in presence of the independent witnesses that he had concealed poppy husk in a gunny bag lying under the heap of grass. The said statement Ext. PR was recorded and on the basis of said statement the accused led the police party to the heap of grass and got recovered another bag which contained poppy husk. When the bag was opened it was found to contain poppy husk which on weighment was found to weigh 38 Kgs. Two samples of 500 grams each were drawn from the bulk poppy husk and the same were put in parcels which were also sealed with seal 'A'. The second bag of poppy husk alongwith sample parcels was taken into possession vide memo Ext. PG. Thereafter, other codal formalities were concluded at the spot.

(3.) THE main ground which weighed with the learned trial court for acquitting the accused was that both the independent witnesses PW -1 Iqbal Singh and PW -2 Pargan Singh had turned hostile and had not supported the prosecution case at all. The learned trial Court did not discard the statement of the prosecution witnesses but found various inconsistencies in their statements and therefore, did not rely upon their testimony to convict the accused. The learned trial Court also held that the prosecution has failed to prove that the heap of grass from which the poppy husk was recovered was not belonged to the accused or to be in his exclusive possession.