RAMU Vs. STATE OF H.P.

JUDGEMENT

(1.) THIS appeal is directed against the judgment rendered on 1.10.2009 by the learned Special Judge, Chamba Division, Chamba, H.P. in Sessions trial No. 11 of 09, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. One lac for commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act') and in default of payment of fine, he has been sentenced to undergo rigorous imprisonment for one year.

(2.) THE genesis of the prosecution story, is, that on 1.1.2009, Inspector R.P. Jaswal (PW -9), SHO Police Station Sadar, alongwith HC Dev Raj (PW -1), HC Anirudh, Constable Latif Mohd., Constable Yakub Mohd. (PW -3) and Constable Surinder Kumar (PW -4) was present at Padla Morh, in connection with patrolling and traffic checking, when at about 1.30 a.m. the accused arrived there from Saho side carrying a bag on his right shoulder. His arrival at the said hours awakened the suspicion of the police party. The accused was stopped by the police for the purpose of interrogation and on seeing the police he became perplexed. The police officials gave an option comprised in Ext. PW -1/A to the accused whether he wants to be searched before a magistrate or a gazetted officer or by the police and the accused gave his consent to his being searched by the police official. Subsequently, Inspector R.P. Jaswal, gave his personal search to the accused vide memo Ext. PW -1/B and nothing incriminating was found from his possession on search being carried out by the accused. On search of the bag found in possession of the accused it was found to be containing charas which on weighment was found to be 6 Kgs. Two samples each weighing 25 gms. were separated from the charas so recovered, which were put in two different parcels and sealed with seal impression 'A', whereas the remaining charas was put in the same bag and thereafter it was sealed in a cloth parcel with the same seal impression and specimen of the seal used was taken separately, vide Ext. PW -1/C and the sample parcel and the parcel containing residue charas were taken into possession vide memo Ext. PW -1/D. NCB form in triplicate Ext. PW -9/B was prepared and seal impression was also affixed on the NCB form. Site plan Ext. PW -9/A was separately prepared by Inspector R.P. Jaswal. Thereafter, Rukka Ext. PW -5/A was prepared and sent to the Police Station Sadar, Chamba, through Constable Yakub Mohd. (PW -3) and copy of the same was also sent to the office of Superintendent of Police, Chamba, through Constable Surinder Kumar (PW -4) and on receipt of Ruqua, F.I.R. Ext. PW -7/A came to be recorded at P.S. Sadar, Chamba by S.I. Diwan Chand (PW -7). Additional SHO Police Station, Sadar, Chamba, made endorsement Ext. PW -7/B on the Ruqua. The accused was arrested under memo Ext. PW1/E. The case property, NCB form, sample seal and recovery memo were deposited with H.C. Kailash Chand (PW -8), who made entry regarding the same in the Malkhana Register, copy of which is Ext. PW -8/A and on 2.1.2009 one sample parcel alongwith sample seal, NCB form, recovery memo and photo copy of the F.I.R., was sent to FSL Junga, through HHC Uttam Singh (PW -6) vice R/C No. 1/09, copy of which is Ext. PW -8/B, who deposited the same at FSL, Junga on 3.1.2009 and the sample was found to be mixture of cannabis and sample of charas, report whereof is Ext. PW -7/D. Special report Ext. PW -5/B was prepared and sent to S.P. Chamba through Constable Ghinder Dutt (PW -2), who after seeing the report handed over the same to Constable Om Prakash for the purpose of record. Statements of the witnesses were recorded by Inspector R.P. Jaswal (PW -9) and SI Diwan Chand (PW -7), as per their versions.

(3.) THE first witness, who, stepped into the witness box to prove the prosecution case, is, PW -1 HC Dev Raj. He deposes that on 31.12.2008, he alongwith SHO R.P. Jawal, HC. Anirudh, C. Surinder Kumar, C. Yakub Mohammad, C. Latif Mohammad, left Police Station, Chamba, at 11.30 p.m. in police vehicle No. HP -44 -0068 in connection with Nakka duty and routine checking towards Padla Morh. He deposes that they reached at Padla Morh at about 12 in the midnight and laid a Naka. He deposes that at about 1.30 a.m. one person came on the spot. His presence was inquired into by the police personnel present there whereupon he got perplexed. He deposes that he was carrying a bag hanging on his shoulder. On further inquiry, PW -1 deposes that he revealed his name Ramu S/o Netar, R/o Village Mandala, and the accused present in Court has been deposed to be the same person. On suspicion of the SHO having been awakened qua his carrying some contraband in his bag, SHO asked the accused whether he wanted to give his search before a Gazetted Officer, a Magistrate or before the police party present at the spot, it being his legal right. The accused consented to being searched before the police party present at the spot and in the above regard memo Ext. PW -1/A was recorded, which came to be singed by this witness, HC Anirudh, SHO and the accused. Subsequently, SHO gave his personal search to the accused, vide Ext. PW -1/B, which came to be signed by PW -1, HC Anirudh, SHO and accused Ramu. Thereupon, he deposes that with the help of the vehicle light they checked the bag of the accused and it was found containing Charas in the shape of sticks. The recovered charas was weighed with weights and scale, which were carried in the I.O. kit and the charas was found 6 Kgs. From the above recovered charas, two samples of 25 grams each were separated, packed and sealed with seal impression 'A'. He continues to depose that the remaining charas was packed in the same bag and it was sealed in a parcel by affixing 10 seals on it. Thereafter, the SHO filled in the NCB form in triplicate, which was also singed by him. Specimen seal impression was prepared vide Ext. PW -1/C, which was also singed by him as well as by HC. Anirudh. He further deposes that seal impression was also embossed on the NCB forms. He further deposes that thereafter seizure memo Ext. PW -1/D was prepared, which was also singed by him, HC. Anirudh, SHO and by the accused. On the parcel having been produced by the learned Public Prosecutor during the course of the examination -in -chief of this witness and theirs being permitted to be opened, this witness deposes that big parcel Ext. P -1, cloth bag Ext. P -2 containing charas Ext. P -3 and sample parcels Ext. P -4 and Ext. P -5, are the same which were recovered from the possession of the accused. Ruqua has been deposed by him to be prepared by SHO and its having been sent to P.S. Chamba for registration of the case through C. Yakub Mohammad and its copy was sent to the S.P. Chamba, for information, through C. Surinder Kumar at 3.20 a.m. He deposes that they completed the proceedings at the spot and came back and reached at the Police Station at 5.35 a.m. He deposes that the accused was arrested vide memo Ext. PW1/E and the grounds of arrest were communicated to him. During the course of his cross -examination by the learned defence counsel he feigns ignorance whether village Ludera is at a distance of 1 -1/2 kilometers from the spot. He admits the suggestion that there is a Forest Barrier at Ludera.