STATE OF HIMACHAL PRADESH Vs. RAKESH KUMAR

JUDGEMENT

(1.) THE present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure against the judgment dated 13.6.2008 passed in Sessions Trial No. 4/2003 by learned Special Judge, Presiding Officer, Fast Track Court, Mandi, District Mandi, H.P., acquitting the accused/respondent for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short NDPS Act). The prosecution case in brief is that, on 10.10.2002 SI/SHO Om Prakash alongwith other police officials, namely, ASI Ram La, constable Rajesh Kumar, H.C. Shayam Lal, H.C. Man Singh, while present at Sidhayani for Naka Bandi, noticed HRTC Bus bearing No. HP -20A -2917 coming from Nek Chowk side which was going from Manali to Amritsar. On search of the said bus, accused/respondent sitting at seat No. 31, was frightened after seeing the police party. The yellow colour polythene envelop being carried by the accused was checked up, from which contraband good was recovered, which on weighing was found 1 K.G. Out of which two samples of 25 grams each were taken out and after putting the seal impression "T", the same was sent for chemical analysis and the remaining contraband good was kept in bulk. On completion of investigation, the accused/respondent was changed for the aforesaid offence.

(2.) IN order to prove its case, prosecution examined as many as 14 prosecution witnesses. Accused was also examined under Section 313 of the Code of Criminal Procedure, wherein he denied the prosecution case.

(3.) INTER alia on many other grounds relied upon by the learned Special Judge, one important aspect which requires consideration is that in reference to contraband good recovered on 10.10.2002, the NCB form Ex. PW -13/C actually cannot be said to have been prepared on the spot the crime number etc. have been filled up by same pen with one go, as such doubt is created that NCB form was filled up on the spot. The chemical examiner on qualitative test on microscopic examination has found cystolithic heir present in the sample and beam 'salkaline test positive and general observation about the contraband good was said containing resin up to 22.41%. In these circumstances, the chemical examiner has opined that the content of sample was charas. In similar facts and circumstances, this Court (DB) vide its judgment dated 19th September, 2011, in Cr. Appeal No. 391 of 2002 (State of H.P. Vs. Subhash Sharma @ Bhasi), has taken a view that the contraband good recovered cannot be said to be charas. For reference, the relevant extract of paragraphs 15 & 16 are extracted herein below: -