STATE OF H.P. Vs. BRIJESH KUMAR

JUDGEMENT

(1.) THE State has appealed against the judgment of the learned Addl. Sessions Judge, Solan, acquitting the respondent -accused, who was charged for the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act (for short the 'NDPS Act'). The prosecution case is that on 7.5.2013 at around 5.35 p.m. Sh. Chaman Lal, SHO (PW -10) was on patrolling duty near Vardhman Chowk at Baddi. He received secret information that the accused, who was residing in a tenanted room in the Vardhman market was supplying Ganja to the public from the said room. He prepared the reasons of belief Ext.PW -10/A and forwarded the same through C. Gurvinder Singh (PW -4), which were received by Dr. Varinder Tomar, SDPO on 7.5.2003 itself and constituted a raiding party associating inter alia Sh. Satpal (PW -1) and Sh. Gurdev Singh (not produced as witness).

(2.) THE raiding party then proceeded towards the tenanted premises in occupation of the accused. When the police party reached near English liquor wine shop, they noticed the accused entering his room. They also went inside the room and informed the accused that he was suspected to be in possession of Ganja and apprised him of his right to get his search conducted either in the presence of a Gazetted Officer or a Magistrate or by the police. His consent to be searched by the police was recorded as Ext.PW -10/B. All the members of the raiding party offered their personal search to the accused. These proceedings were drawn into "Panchnamas" which are Ext.PW -10/D and Ext.PW -10/E. Thereafter, the search of the room of the accused was conducted and the raiding party recovered a rexine bag bearing mark 'Polo Sport Santa Roberta'. On checking the bag, the police recovered a polythene packet bearing the inscription 'Raj Boot Wear' which contained Ganja. This was weighed and found to be 1 kg. 400 grams. Out of this, two samples weighing 25 grams each were separated. Two samples and remaining Ganja were sealed in three different parcels with seal bearing impression 'H' and the seal was handed over to Sh. Satpal (PW -1) vide memo Ext.PW -10/H. The sealed parcels were taken into possession vide memo Ext.PW -10/F in the presence of Sh. Satpal and (PW -1) and Sh. Gurdev Singh. Rukka (Ext.PW -10/J) was prepared and forwarded to Police Station, Barotiwala through C. Harbans Singh (PW -3). FIR (Ext.PW7/A) was accordingly registered against the accused.

(3.) IN order to prove this case, learned trial Court takes into consideration the provisions contained under Section 50 of the NDPS Act holding that the right to be searched in the presence of a Magistrate or Gazetted Officer has not been conveyed to the accused.