STATE OF HIMACHAL PRADESH Vs. STEVEN FREDRICK REED

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment dated 3.12.2002 passed by the learned Sessions Judge, Bilaspur, in Sessions trial No. 75 of 2002 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 NDPS Act).

(2.) THE prosecution story, in brief, is that on 26.2.2002 PW -12 ASI Parma Nand alongwith Head Constable Sarvan Kumar, PW -2 Sunder Singh, PW -7 Constable Mohinder Pal, PW -8 Constable Om Prakash, HHG Narain Singh and HHC Mohinder Dev were present near Naggar bridge for routine checking. At about 1.00 a.m. one person was spotted coming from Naggar side towards the bridge. This man had one bag in his hand and another on his back. On seeing the police officials he looked to be perplexed. This aroused the suspicion of the police officials, who apprehended the said person. This person was a foreigner and disclosed his name to be Steven Fredrick (the accused). The officials suspected that the accused may be in a possession of some contraband and therefore an option was given to him whether he would like to be searched before a Magistrate or a Gazetted Officer vide memo Ext.PW -6/A. The accused consented to be searched by the police. Thereafter, the search of the bag, being carried by the accused, was conducted and charas was recovered which on weighment was found to weigh 3 kg. 500 grams. Out of this charas two samples of 25 grams each were drawn and thereafter these samples and the remaining charas were sealed in three separate parcels and sealed with seal bearing impression 'T'. The seal impression was also taken on Ext.PW -12/C. Thereafter the NCB form was filled up and other codal formalities were completed at the spot. The case property was taken into possession vide memo Ext.PW -6/C. A Ruqua Ex.PW -12/A was sent for registration of the case through constable Ishwar Dass on the basis of which F.I.R. Ext.PW -5/A was registered.

(3.) ACCORDING to the prosecution special report Ext.PW -10/A was sent to the Dy. Superintendent of Police, Kullu and during investigation, PW -5 SHO Roshan Lal made an application Ext.PW -5/E alongwith inventory Ext.PW -1/B to the Judicial Magistrate, Manali for taking sample out of the remaining charas. The learned Judicial Magistrate passed order Ext.PW -1/A and issued certificate Ext.PW -1/C. The Chemical Analyst vide his report Ext.PW -5/F opined that the sample was of charas having resin content of 39.90%. On this basis the accused was charged with having committed the aforesaid offence. The accused pleaded not guilty and claimed trial. The learned trial Court found that the prosecution has failed to prove that the charas had been recovered from the exclusive and conscious possession of the accused in view of the fact that there are serious contradictions in the statements of the witnesses with regard to the timing as well as the manner in which the recovery was made.