STATE OF H P Vs. SURESH KUMAR

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgement dated 1.11.2003 passed by the learned Sessions Judge, Kullu in Sessions trial No. 02/2003 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act).

(2.) THE prosecution story in brief is that on 4.10.2002 PW-8 SI Rup Singh alongwith ASI Parma Nand, HC Prakash Chand, PW-2 HC Sarwan Kumar, PW-3 Constable Ishwar Dass and Constable Sunder Singh was present for traffic checking at Baragaon bridge near Patlikuhal. They stopped one Maruti van bearing registration No.HP-02-K-0118 coming from Manali side at about 4.30 p.m. When the documents of the vehicle were demanded from the driver he got perplexed. This aroused the suspicion of the police officials. Two other persons were sitting on the rear seat of the van. The driver disclosed his name to be Gurdas and the other two occupants disclosed their names as Suresh Kumar and Jog Raj. PW-8 suspected that the persons may be carrying some contraband and therefore he decided to search the three occupants of the van. He accordingly gave the memos Ext.PW-2/A to Ext.PW-2/C to the three accused persons giving them an option as to whether they wanted to be searched before a Magistrate or a gazetted officer. As far as memos Ext.PW-2/B and Ext.PW-2/C are concerned they are in Hindi and the consent memo also clearly stipulates that the accused had a legal right to get themselves searched before a Magistrate or a gazetted officer. Though in the memo Ext.PW-2/A the special legal right does not find mention but it has been stated both by PW-2 and by PW-8 that such option was given to accused Suresh Kumar also. There is virtually no cross-examination on this aspect and further more it appears that the investigating officer was aware that not only was an option to be given but the accused were also to be apprised of their legal rights because in the two consent memos which have been written in Hindi this specifically find mentioned.

(3.) AT the outset, we may note that the search took place in the afternoon at about 4.30 p.m on the national highway at Baragaon bridge near Patlikuhal. Even as per the police officials there are 40-50 small sheds/khokhas wherein a lot of Tibetan refuges are settled just across the bridge about 40 meters from the place where the search was conducted. In such a case the police should normally associate some respectable persons of the locality with the search and seizure operation as provided in Section 100 Cr.P.C. In case the police officials cannot find respectable person to be associated with the search then this fact must be specifically proved during the course of investigation. In the present case it is apparent from the statements of the police officials that virtually no effort was made to associate any independent witness and therefore, this casts a doubt on the prosecution version.