STATE OF HIMACHAL PRADESH Vs. SANDEEP KUMAR ALIAS GITTU, SON OF SHRI DHARAM CHAND, CASTE BATWAL, RESIDENT OF KALOOND, P.O. CHACHINANAGRI, TEHSIL AND P.S. PALAMPUR, DISTRICT KANGRA, H.P.

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment dated 24th August, 2005, delivered by the learned Sessions Judge, Kangra at Dharamshala, in Sessions Case No. 30P/ VII/2004, Sessions Trial No. 7 of 2005, whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). The prosecution story, in brief, is that on 29th April, 2004, PW7, SI Mool Raj, alongwith PW1, Constable Raj Kumar; PW2, Constable Ajeet Singh and Constable Prakash Chand (not examined) left Police Station Palampur at about 11.30 a.m. for patrolling duty. They first went to Nagri and then went to Sukeri. They went to Nagri by bus and then by a private vehicle to Sukeri. They were coming back from Sukeri to Nagri by a short cut on foot. About one kilometer before Nagri, they saw a person coming from the opposite side. On seeing the police party, this person tried to ran away. This aroused the suspicion of the police officials and the person was apprehended. On interrogation, this person disclosed his name to be Sandeep Kumar (the accused). The said person was carrying a polythene bag in his hand. He was informed that it was suspected that he was carrying some contraband and he was to be searched and he may give his option as to whether he wanted to be searched before a Gazetted Officer, Magistrate or police officials. He allegedly consented to be searched by the police officials and on search of the polythene bag being carried in the hand of the accused, another polythene bag was found inside and inside the second polythene bag, there was charas, which on weighment was found to weigh 600 grams.

(2.) THEREAFTER , Rukka, Ex. PW1/ G, was sent to the Police Station through PW2, Constable Ajeet Singh and on the basis of this, FIR, Ex. PW2/ A was lodged. After arresting the accused and completing the other codal formalities at the spot, PW7, SI Mool Raj, returned to the police station, where he handed over the accused and the case property to PW4, Asif Jalal, who at that time was SHO, Palampur. PW4 resealed the case property with his own seal and deposited it with PW3, MHC Kushal Kumar, Incharge of the Malkhana vide report Ex. PW3/ A. Thereafter, PW3, MHC Kumar sent one of the samples through PW2, Constable Ajeet Singh to CTL Kandaghat and the Chemical Examiner, vide its report, Ex. PW7/ B, opined that the sample was of charas. On this basis, the accused was charged with having committed the offence aforesaid.

(3.) AS far as the first point in concerned, in view of the law laid down by the Apex Court in State of H.P. versus Pawan Kumar, : (2005) 4 SCC 350, when the search of a bag being carried by the accused is carried out, then provisions of Section 50 are not attracted and even if there was noncompliance of Section 50, that will not affect the prosecution case.