GURBACHAN SINGH SON OF SHRI GIAN SINGH, R/O VILLAGE NANGAL UPERLA, TEHSIL AND POLICE STATION, NALAGARH, DISTRICT SOLAN, H.P. Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THE appellant has laid a challenge to his conviction and sentence passed by the learned Sessions Judge in Case No. 8 -NL/7 of 2005/2003 on 17.3.2006 for the offence punishable under Section 15(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short "the Act" for allegedly keeping in his possession 151/2 Kgs. of Powdered "Poppy Husk" alleged to have been kept concealed beneath the cot in the room and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 15,000/ - and in default of payment of fine, to further undergo rigorous imprisonment for one year. In brief, the prosecution story can be stated thus. PW 12 Shri Atul Fulzale IPS was on probation and was posted as SHO in Police Station, Nalagarh. On 26.5.2003, at about 4.30 p.m., PW 12 aforesaid received a secret information that the appellant to be referred as "the accused" hereinafter and his servant Paras Ram were dealing in the contraband like "Poppy Straw" which is locally known as "Bhuki". On receipt of this information, he entered this information in daily -diary and sent its report to the Dy. Superintendent of Police Nalagarh in writing, copy whereof is Ext. PW 6/A through Constable Kamal Chand. Thereafter, he alongwith Inspector Vijay, ASI Deva Nand, ASI Dharam Dass, Constable Gurmail Singh and Lady Constable Saroj proceeded to village Nangal, formed a raiding party including PW 1 Ram Lal and PW 2 Baggu Ram as independent witnesses. Thereafter, they proceeded to the house of accused Gurbachan Singh and found him alongwith co -accused Paras Ram standing outside his house. On seeing the police party, though they tried to escape, but they were immediately apprehended. Both of them were informed verbally as well as in writing about the purpose of their visit and to exercise their legal right whether they would like their house to be searched in the presence of the Gazetted Officer or the Magistrate or the Police Party itself. They opted to search the house by the police party and to this effect, they made endorsements Exts. PW 12/A and B on the option so given. Police party subjected themselves to be searched by the accused persons, but nothing incriminating material was found and to this effect, a memo Ext. PW 1/A was prepared, which was signed by the independent witnesses.

(2.) AFTER completing investigation, the challan was presented in the court for the trial of the accused and his co -accused Paras Ram.

(3.) MISS Soma Thakur, learned counsel appearing for the accused vehemently argued that the prosecution has failed to prove the case against the accused in accordance with law. The link evidence is not complete. There are material contradictions and embellishment in the statements of the prosecution witnesses making prosecution story doubtful. The independent witnesses did not support the case of the prosecution, as such declared hostile and further that the report of the Chemical Examiner could not be linked with the alleged stuff and these facts were ignored altogether from consideration by the learned trial Court which caused prejudice to the accused.