STATE OF HIMACHAL PRADESH Vs. KHUDU RAM SON OF SHRI HIRDA RAM, RESIDENT OF SHILGANI, POST OFFICE FOZAL, P.S. MANALI, DISTRICT KULLU, HIMACHAL PRADESH

JUDGEMENT

(1.) THE present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure against the judgment dated 10th December, 2004, passed in Sessions trial No. 87 of 2003 by Additional Sessions Judge (Fast Track), Kullu, Himachal Pradesh, acquitting the accused/respondent for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short NDPS Act). The prosecution case in brief is that on 8th May, 2003 at about 4 a.m., ASI Shri Ram Karan (PW -8) alongwith Head Constable Shri Gangbir Singh, Constable Shri Pratap Singh (PW -6) and Constable Shri Dalip Singh (PW -7), while on patrol duty and Nakabandi noticed that accused -respondent was coming from Manali side, on foot, with a 'pithu' (bag). On seeing the police he ran towards down -side, however, he was overpowered and after apprising him, search was conducted. No independent witness was available, but when search of his bag was conducted, four polythene bags, containing Charas in the shape of sticks and tablets were recovered, which on measurement were found to be 4 kgs. Two samples each weighing 25 grams were separated from each of the polythene bags and the samples and the bulk charas were sealed with seal impression 'D'. NCB form Ex. PW -1/C was filled up and two specimen samples were sent for chemical examination through Constable Shri Pratap Singh (PW -6). Ruka Ex. PW8/B was sent through Constable Shri Dalip Singh (PW -7) and in that reference FIR Ex. PW -5/A was registered. After completion of investigation, accused -respondent was charged for the aforesaid offence.

(2.) IN order to prove its case, prosecution examined as many as eight witnesses. Accused -respondent was also examined under Section 313 of the Code of Criminal Procedure, wherein he denied the prosecution case.

(3.) BESIDES the above analysis, we also notice that inter alia on many of other grounds relied upon by the learned Sessions Judge, one important aspect of the case, which needs consideration, is that the contraband was recovered as per NCB Form Ex. PW -1/C. It appears that the said NCB Form Ex. PW -1/C was not prepared on the spot because in Item No. 1, FIR number was mentioned in the same ink and in the same fashion in which the other items of the NCB form has been written. It also appears that the Chemical Examiner, on microscopic examination, found cystolithic hair present and beam's alkaline test as positive and resin was found to be present to the extent of 32.41 in the samples and on the basis of such analysis, the Chemical Examiner opined that the recovered contraband good was charas.