STATE OF HIMACHAL PRADESH Vs. DITTU RAM, SON OF SAHIB SINGH, RESIDENT OF VILLAGE HADDALE, TEHSIL AND P.S. NURPUR, DISTRICT KANGRA, H.P.

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment dated 1st November, 2003, delivered by the learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, in Sessions Case No. 17 -N/VII/03 (RBT No. 3 -N/2003), whereby he acquitted he 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). The prosecution story, in brief, is that on 1st February, 2003, PW -1, Dy. S.P. Suresh Thakur, was on patrolling duty alongwith PW -10, ASI Krishan Gopal; PW -2, HC Anil Kumar; HHC Krishan Kumar; PW -3, Constable Budhi Singh; Constable Jaswant Singh and Constable Sandeep Kumar. They were going from Village Bohad towards Ondh. At about 6.45 p.m., when they were near Village Bhatka at a secluded place, they saw one person coming from the opposite side. On seeing the police vehicle, the person ran towards the bushes. This aroused the suspicion of the police officials, who apprehended the said person, who, on inquiry, disclosed his name to be Dittu Ram (accused). An option was given to the accused as to whether he wanted to be searched by the police officials or by a gazetted officer or a Magistrate. According to the prosecution, the accused agreed to be searched by a police official of higher rank and thereupon PW -1, Dy. S.P. Suresh Thakur, carried out the search of the polythene bag being carried by the accused. Inside this bag, two other polythene bags were found and in the innermost bag, which was knotted at two places, charas was found, which on weighment was found to weigh 1 kg 50 grams. Two samples of 20 grams each were drawn and sealed in two separate parcels and the remaining bulk charas, weighing 1 kg 10 grams, was put back in the original polythene bag. The three parcels were sealed with seal impression 'B'. PW -1 thereafter handed over the investigation to PW -10, ASI Krishan Gopal, alongwith the case property. PW -10, in turn, deposited the case property with PW -4, SI Bharat Bhushan, who was then posted as SHO in Police Station Nurpur. PW -4 re -sealed the parcels with his seal impression 'P' and handed over the same to PW -9, MHC Rajinder Singh on the same day itself. On the next day, i.e. on 2nd February, 2003, PW -9 sent sample parcels through PW -7, Constable Vimal Kumar, to CTL Kandaghat and the Chemical Examiner, vide his report, Ex. PW -4/D, opined that both the samples were of charas. On this basis, the accused was charged with having committed the offence aforesaid. The accused pleaded not guilty and claimed trial. The learned trial Court, after trial, acquitted the accused. Hence, this appeal by the State.

(2.) THE learned trial Court acquitted the accused mainly on the ground that there was non -compliance of Section 50 of the Act. As far as this issue is concerned, we are of the considered opinion that in view of the judgment of 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, the provisions of Section 50 of the Act are not attracted. Therefore, we have examined the entire evidence in detail.

(3.) FROM the evidence on record, it is apparent that the police patrolling party was going from Village Bohad towards Ondh. It was close to Village Bhatka. PW -1, Dy. S.P. Suresh Thakur, in cross -examination, has admitted that in Village Bhatka, there are three -four shops and some residential houses. He also admitted that just near to Village Bhatka, there is Village Ondh, which has 40 to 50 shops. Though in examination -in -chief nothing was stated, when cross -examined, PW -1 stated that they had tried to call persons from the village to join the search, but no one agreed to join. He also stated that when accused Dittu refused to give his search to the ASI and claimed that he be searched by a senior official of the police, the same was reduced into writing, but no such writing was produced. As far as PW -2, HC Anil Kumar, is concerned, he feigned ignorance as to whether local people were called to join investigation by his senior police officials or not, but he himself did not call the local people.