STATE OF HIMACHAL PRADESH Vs. JHABE RAM

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment dated 20.7.2005, passed by the learned Sessions Judge, Solan in Sessions Case No. 6-S/7 of 2005, 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 'Act').

(2.) THE prosecution in brief is that on 28.10.2004 PW-9 SI Anant Ram along with PW-7 HC Sewa Singh, Constable Sher Singh and Constable Ram Lal was on checking duty near Negi Petrol Pump, Sector-6, Parwanoo. At about 1.30 am, an HRTC bus bearing registration No.HP-03B-6001 coming from Karsog and bound for Delhi was stopped for police checking. During checking, the accused was found sitting on seat No. 37. It is alleged that he was having two bags, one of black colour and other of blue colour, which he had kept between his legs. The bags were checked by PW-9 SI Anant Ram in presence of the driver and conductor and other members of the naka party. Charas was found in these bags, which was weighed. In the black bag the charas was found to weigh 4 Kgs and in the blue bag the charas was found to be 2 Kgs. Two samples S1 and S2 were drawn from the charas recovered from the black bag and two samples S3 and S4 weighing 200 grams each were drawn from the charas taken from a blue bag. Thereafter four sample parcels and the remaining bulk charas parcels were sealed separately. The seal impression placed on these parcels was 'A'. The black bag was marked as P1 and the blue bag as P2. Thereafter NCB form was filled in on the spot and ruqua was sent to the police station for registration of the case. Other codal formalities were completed. The accused was arrested. Special report was prepared and sent to Superintendent of Police, Solan. Thereafter, PW-9 came back to the police station and handed over the case property to PW-4 Gurdial Singh, who resealed the same with his own seal bearing impression 'S'. Thereafter Gurdial Singh deposited the case property with PW-1 HC. Ram Lal, who was in- charge of the Malkhana. PW-1 in turn sent two samples out of the aforesaid parcels to the CTL, Kandaghat through PW-2 HC Dharam Singh who deposited the parcels at the CTL Kandaghat. The Chemical Examiner, vide his report Ext. PH/1, found that both the samples were of charas and on this basis the accused was charged with having committed the offence aforesaid. The learned trial court acquitted the accused mainly on the ground that the prosecution had failed to prove the fact that the so called contraband was recovered from the exclusive and conscious possession of the accused.

(3.) IT may be mentioned that as far as the independent witnesses are concerned, they have not supported the prosecution case. PW-5 Suneel Kumar is the conductor of the bus and PW-6 Munshi Ram is the driver of the bus. According to these witnesses, the bus was stopped, search was conducted and two bags were found in the rack over seat Nos.32, 33, and 34. Thereafter the police officials woke up the passengers sitting on seat Nos. 37 and 38 and asked them to get down. Though these witnesses were declared hostile and cross-examined at length but they have stuck to their version that the charas was not recovered from the accused.