NARESH KUMAR @ LUCKY SON OF SHRI KULDIP SINGH, R/O VILLAGE PALPAL, TAPPA MEWA, P.S. AND TEHSIL BHORANJ, DISTRICT HAMIRPUR, H.P. Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THESE two appeals are being disposed of by one judgment since they both arise out of a common judgment of the learned Sessions Judge, Hamirpur in Sessions Trial No. 27 of 2004 whereby the accused has been convicted of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 10,000/ -. In default of payment of fine, the accused was directed to undergo simple imprisonment for four months. Criminal Appeal No. 436 of 2005 has been filed by the accused challenging his conviction and the Criminal Appeal No. 518 of 2005 has been filed by the State praying for enhancement of the sentence.

(2.) THE prosecution story, in brief, is that on 26th October, 2003, PW -9 ASI Desh Raj who was Incharge of Police Post Jahu alongwith PW -1 Const. Pawan Kumar and PW -2 Const. Ishwar Dass had gone on routine patrol duty of the township of Jahu and entry in this behalf was made at Sr.No.14 of the Daily Diary Register Ext.PW -1/D. When these police officials were present at the Bus Stand Jahu, the accused person was noticed to be standing there. On seeing the police officials the accused ran towards the other side. The police officials intercepted the accused person. The behaviour of the accused aroused the suspicion of the police officials. Therefore, it was decided to check the haversack (Pithu) Ext.P -3 being carried by the accused on his shoulders. PW -9 asked the accused to disclose his name, parentage and address which he disclosed. PW -9 Desh Raj also asked the accused person to take off his haversack which he was carrying. When PW -9 in the presence of PW -1, PW -2 and the accused person was going to search the haversack, the accused again ran away. He jumped into the nearby Seer Khad which was dry and ran away. The police officials could not catch hold of him. Thereafter, PW -9 alongwith two officials took the haversack Ext.P -3 to the nearby hotel of PW -3 Som Dutt and checked the same. Clothes belonging to the accused were found in the haversack. Besides the clothes there was one small bag of green colour in the haversack. When this bag was opened, charas was found inside it. This charas was weighed in the presence of PWs 1, 2 and 3 and found to be 400 gms. Two samples of 25 gms each were drawn. Thereafter, the two sample packets and the remaining bulk charas were packed separately in three packets and sealed with seal 'H' and were taken into possession vide recovery memo Ext.PW -1/A. The haversack Ext.P -3, small bag of green colour and clothes of the accused were separately sealed in one packet with seal 'H' and taken into possession vide recovery memo Ext.PW -1/C. Ext.PW -1/B is the specimen impression of seal 'H'. Thereafter, PW -9 prepared report Ext.PW -2/A and sent the same to the Police Station Bhoranj for registration of FIR Ext.PW -2/B. Other codal formalities were completed at the spot and PW -9 produced the sealed case property before PW -8 Sh. Mehar Chand, SHO who re -sealed the same with his seal 'M'. The police searched the accused person but could not find him. The accused applied for anticipatory bail in this Court which was granted to him on 30.10.2003. One sample packet of charas was sent to the Chemical Examiner at Kandaghat who, vide report Ext. PX, opined that the sample was of charas. On this the accused was charged for having committed the offence as aforesaid. After trial the accused was found guilty. Hence, the aforesaid two appeals.

(3.) THE main grounds raised by Sh. N.K. Thakur, learned senior counsel for the accused, are that the prosecution has miserably failed to establish the recovery from the conscious and exclusive possession of the accused. It is argued that when the search of the haversack was being done the appellant -accused ran away and the bag was searched in the Hotel of PW -3 Som Dutt who did not support the prosecution story which makes the recovery doubtful. Another ground raised by Sh. N.K. Thakur is that in the documents, especially the seizure memo, the name and complete address of the accused have been given even though the accused absconded before the search. Other grounds have been raised such as mentioning of the number of the FIR and non deposit of the NCB form and sample seal in the malkhana. It is also alleged that the link evidence has been missing.