STATE OF HIMACHAL PRADESH Vs. RAMESH KUMAR

JUDGEMENT

(1.) THIS is an appeal filed by State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment, dated 23.9.2004, passed by learned Sessions Judge, Shimla, vide which the respondent was acquitted of the charge framed against him under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as 'the Act'.

(2.) BRIEFLY stated, the facts of the case are that on 11.12.2003, ASI Rajinder Kumar, Incharge of the police patrolling party, was patrolling between Galoo and Star Resorts via link road. He was accompanied by Constables Rajinder Kumar, Sudhir Kumar and Mahender Singh. When the police party reached near a temple, they saw accused Ramesh Kumar coming from jungle side towards the link road. The accused was alleged to be carrying a white and red coloured envelope in his hand. On seeing the police party, the accused abandoned the said polythene envelope and run away from the spot. Police party tried to chase the accused, but he could not be apprehended. On examination, the envelope was found to be containing charas, which, on weighment, was found to be 2 kg. and 250 grams. Two samples of 50 grams each were separately taken and these were sealed and were taken in possession vide recovery memo. It was alleged in the memo sent to the SHO for registration of the case that the identity of the accused was known to the ASI, who was alleged to be a shopkeeper from Luharwa running a tailoring shop there. The case was registered. The Investigating Officer made several attempts to apprehend the accused, who was ultimately arrested in March, 2004 after more than three months of the occurrence. On completion of the investigation, the challan was filed as against the accused, who was tried by the learned trial court, as detailed above, leading to his acquittal.

(3.) ON appraisal of the evidence led by the prosecution, it is clear that the prosecution evidence consists of the statement of the Incharge of the patrolling party PW-4 ASI Rajinder Kumar and one another Constable PW-3 Rajinder Kumar accompanying him. It is also clear that though the police officer was accompanied by three other Constables, who had seen the accused from a very nearby place, from where they were able to identify the accused. All the members of the patrolling party were not able to apprehend the accused who ran away towards the jungle. There is another aspect of the case that ASI PW-4 Rajinder Kumar, Incharge of the Police Post, Fagu also alleged that he could identify the respondent only who runs a tailoring shop at Cheog Bazar and 3-4 persons were also following the said accused, who also ran away. It cannot be believed that four police officials were not able to apprehend any of the 2-3 persons who were also allegedly with the respondent. In regard to the question as to whether the respondent was alone or 2-3 persons were also following him, who also ran away, PW-3 Constable Rajinder Kumar, the only other witness examined to corroborate the statement of PW-4 ASI Rajinder Kumar, is silent. He has not stated anything that 2-3 persons were following the accused, who also ran away apart from the accused. This is a material contradiction which cannot be ignored.