PARKASH PUNN Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Challenge herein is to the judgment dated 5.4.2010, passed by learned Special Judge (Fast Track Court), Kullu in Sessions trial No.50 of 2009, whereby the appellant (hereinafter referred as the accused for short), has been convicted for the commission of offence punishable under Section 20(b)(i)(B) of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as the Act in short), and sentenced to undergo rigorous imprisonment for four years and to pay a fine of ' 40,000/-.

(2.) The accused has assailed the findings of conviction recorded by learned trial Court on the grounds that neither the given facts and circumstances nor the law applicable to this case has been appreciated in its right perspective and rather misread and misconstrued. The findings of conviction allegedly are vitiated on account of non-compliance of mandatory provisions enshrined under Section 50 of the Act. The contradictions in the prosecution evidence, which go to the root of the case, have been ignored. There being doubt as to on which seat the accused was sitting in the bus, no finding of conviction could have been recorded against him.

(3.) In a nutshell, the case of the prosecution is that on 24.2.2009, around 6.30 p.m., when the police of Police-Check Post, Bajaura, stopped bus bearing No.HP-01-3523 for routine checking, two Nepalese occupying seat Nos.31 and 32, got frightened and on suspicion made to alight from the bus in the presence of its driver and conductor S/Shri Naresh Kumar and Raj Kumar (PW-2). They were brought to the Police Check Post situated on the spot itself. On enquiry they both disclosed their names as Parkash Punn (accused in this case) and Om Lama. Against Om Lama a separate case came to be registered vide FIR No.57 of 2009 Ext.D-2. On account of there being suspicion of the accused in possession of some narcotic substance or contraband, PW-3 ASI Jagat Singh apprised him of his legal right of being searched either before a Magistrate or Gazetted Officer, as required under Section 50 of the Act vide memo Ext.PA. The accused vide his consent given in writing opted for being searched by PW-3 himself. His personal search was conducted. On getting taken off his shoes, one polythene envelop each in both shoes was found kept therein. On further search of the polythene envelops Charas in the form of sticks, was recovered therefrom. It was weighed and found to be 385 grams. After resorting to sealing and sampling process, the recovered Charas was sealed with seal T in the presence of witnesses. The sample parcels were also sealed separately with the same seal. The sample of seal was separately obtained on a piece of cloth and NCB-I forms were filled in triplicate on the spot. The recovered Charas was taken into possession vide seizure memo Ext.PD. It is thereafter Rukka Ext.PG was prepared and handed over to Constable Nikhil with the direction to take the same to Police Station, Bhuntar. On the basis of Rukka Ext.PG, FIR Ext.PS came to be registered in the Police Station.