BALJIT @ BAGGA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The above titled appeals are arising from the judgment passed in NDPS Case No. 11 of 2010, decided on 8.8.2011, whereby the appellants herein, were convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short The Act for allegedly keeping Charas in their possession and each of them were sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of ' 50,000/- each, with the default clause, which is under challenge in these appeals.

(2.) In short, the prosecution story can be stated thus. On 18th January, 2010, PW-7, ASI Jagat Singh alongwith PW-3 Constable Rohit Verma and Constable Moti Ram, were on patrol duty. They put a Naka near Akhni Khad . Around 11.30 a.m., the appellants, hereinafter referred to as the accused 3 persons , emerged from the katcha road and reached the main road. On spotting the police, they had tried to escape which raised suspicion. The police chased and apprehended them at some distance. Their identity was asked. The place aforesaid was isolated and lonely. Therefore, the independent witnesses could not be associated. (ii) Each of the accused persons were given option orally as well as in writing under Section 50 of the Act to be searched before the Magistrate or the Gazetted Officer and they were informed that it was their legal right. (iii) Accused Dharam Dass made the endorsement in his hand on Ext. PW-3/A that he was ready and willing to render himself to be searched by the police party. Similar endorsement was made on Ext. PW-3/B on a separate document by accused Baljit Singh. (iv) Thereafter, all the police officials rendered themselves to be searched by 4 the accused persons, but no incriminating article was found in their possession. To this effect, separate memos Ext. PW-3/C and Ext. PW-3/D were prepared. A. Recovery from accused Dharam Dass (v) PW-7 ASI Jagat Singh conducted personal search of accused Dharam Dass. During the search, he recovered a polythene bag, which was kept concealed and tied with a thread near his navel under his garments. On opening the said envelop, he recovered a round shaped black material which smelt like Charas . On its weighment, it was found to be one kilogram. The recovered envelop was sealed with seal impression N at nine places and sample of the seal was taken on a piece of cloth Ext. PW-3/G. The case property recovered from the possession of accused Dharam Dass was taken into 5 possession vide Memo Ext. PW 3/E. One copy of the said memo was supplied to the said accused free of cost. B. Recovery from accused Baljit Singh (vi) Thereafter, the personal search of accused Baljit Singh was conducted by PW-7 ASI Jagat Ram. He was also found having kept a polythene envelop in the same manner concealed near his navel beneath his clothes. It was also tied with a thread. The contents thereof were one kilogram, of the same nature, as found in the possession of co-accused Dharam Dass. It also smelt like Charas . The recovered stuff was similarly sealed with seal impression N at nine places. The facsimile of the seal was separately taken on a piece of cloth Ext. PW-3/H. The relevant columns of NCB forms were filled in. One of such form is Ext. PW-7/D containing the facsimile of the seal. The Charas recovered from the possession 6 of accused Baljit Singh was taken into possession vide Memo Ext. PW-3/F. One copy of the said memo was also supplied to the said accused free of cost. C. Other Proceedings (vii) Rukka Ext. PW-1/A was prepared by PW-7 aforesaid and sent to the concerned Police Station for the registration of the FIR through PW-3 Constable Rohit Verma. (viii) The police also prepared site plan Ext. PW-7/A of the place of alleged recovery. (ix) The accused persons were arrested. The grounds of arrest were informed to them vide memos Ext. PW-7/B and Ext. PW-7/C. (x) After the registration of the case, PW-3 Constable Rohit Verma returned with the case file. PW-7 ASI Jagat Singh met him at bus stand Nirmand and handed it over to him. (xi) The case property was entrusted to PW-1 MHC Lal Chand alongwith the NCB forms in triplicate. He deposited the case 7 property in the Malkhana and made its entry in the relevant register, the abstract of which is Ext. PW-1/D. (xii) On 20.1.2010, PW-1 MHC Lal Chand handed over two recovered sealed parcels alongwith the NCB forms in triplicate with a police docket vide RC No. 4/2010 Ext. PW-1/E for its analysis in FSL Junga through Constable PW-3 Rohit Verma. On its deposit, the said Constable obtained receipt Ext. PW.1/F on the RC and handed it over back to the MHC. (xiii) Special report Ext. PW-2/A was prepared by the Investigating Officer and sent to the SDPO, Ani within the statutory period. (xiv) On examination of the recovered sample parcels, both were tested positive for Charas . One of the parcels contained 29.75% w/w resin of cannabis plant and another 32.58% w/w. The result of the examination is Ext. P.A. 8

(3.) On completing the investigation, challan was presented in the Court for the trial of the accused persons for the offence aforesaid. They were accordingly charge-sheeted, to which they pleaded not guilty and claimed trial.