SHRI SURINDER KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THE appellant has challenged his conviction under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS Act). The prosecution case is that PW6 HHC Tek Chand, PW7 S.I. Lal Singh, ASI Man Singh, C. Lachhman Dass and HHG Amar Singh were on patrolling duty on 15.12.2008 in a police vehicle. The accused was seen coming from Banjar side and was carrying a black bag on his right shoulder. On seeing the police, he got perplexed and frightened and tried to escape but was apprehended by the police. On inquiry, he revealed his name as Surinder Kumar son of Kurdia Ram. The prosecution case is that the place was a lonely spot and as such no independent witnesses could be associated. ASI Man Singh and HHC Tek Chand, PW6 were associated as witnesses. The accused informed that there was reasonable suspicion that he was carrying contraband and in this eventuality he had a legal right of being searched either by the police, gazetted Officer or Magistrate. The accused consented to be searched by the police. Memo Ex.PL was prepared and the signatures of witnesses were obtained thereon. The prosecution proceeded with the procedure of search and sealing of the sample, recording of the statements of the witnesses which reveals compliance of provisions of the NDPS Act. The sample of charas recovered was sent for chemical analysis. Ex. PT, report of the FSL states that the sample was found containing 42.67% resin content. On the evidence on record, the learned trial Court concluded that the accused was in conscious possession of the charas and was accordingly sentenced to undergo five years rigorous imprisonment with fine of Rs. 50,000/ -.

(2.) THE findings of the learned Court below have been challenged on number of grounds, namely, that (a) the conviction has been based solely on the testimonies of the police witnesses which is illegal, no independent witness has been associated with the search and in this eventuality, the evidence of the prosecution cannot be relied upon; (b) that there are material discrepancies and contradictions in the statements of the police witnesses and that the rukka Ex.PQ itself falsifies the case of the prosecution and (c) there is violation of Section 55 of the NDPS Act and in this eventuality, when all the three factors are taken together no conviction can be recorded against the accused.

(3.) ON the second aspect that rukka Ex.PQ is an eye wash, I have perused rukka Ex.PQ and I have not found any fabrication in this document. FIR No. 144 of 2008, 15.12.2008 has been registered on the basis of Rukka, Ex.PQ on the same date in police station, Kullu. On the third aspect that there are material contradictions in the testimonies of the witnesses, the law is now well settled that minor contradictions in the statements of the witnesses do not destroy the edifice of the prosecution case. On going through the statements of the witnesses, I do not find any major contradictions in their testimonies (a) on the fact that the accused was present at the spot where he was apprehend, (b) searched and the contraband was recovered from him and seized. Considered from any angle, I do not find that the appellant herein has been able to make out a case for acquittal.