PUSHAP RAJ Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) PRESENT appeal filed against the judgment and sentence passed by learned Additional Sessions Judge Mandi in Sessions Trial No. 28 of 2007 titled State vs. Pushap Raj decided on 25th September, 2008.

(2.) IT is alleged that on dated 27th May, 2007 H.C. Dina Nath C. Sanjay Kumar C. Bhupender Singh and C. Bansi Lal of police Station Aut were on excise patrol duty. It is alleged that when the police officials were in between Tunnel and Largi Dam bridge they saw accused coming on the road carrying a bag and when he saw the police officials he tried to run away but he was caught by the police party. It is alleged by prosecution that bag was checked and on checking it was found containing one polythene bag kept in jacket in the bag and in polythene bag 3.750 grams charas was found. It is further alleged that charas was separated into two samples of 25 grams each out of the recovered charas and the same were put into two separate cigarette packets and these packets were packed in separate cloth which was sealed with seal impression 'H'. It is also alleged that remaining bulk of the charas was put in the same polythene bag and the bag was sealed in a cloth parcel with seal having seal impression 'H'. It is further alleged by prosecution that NCB form in triplicate was filled in and seal impression also took on a piece of cloth Ext. PW2/C and thereafter seal was handed over to C. Bansi Lal. It is alleged by prosecution that police took into possession sealed vide memo Ext. PW2/A. It is also alleged by prosecution that thereafter ruka Ext. PW9/A was sent through C. Bhupender Singh for registration of FIR and thereafter FIR was registered and spot map Ext. PW3/E was prepared. It is further alleged that thereafter the case property took to the police station Aut and same was deposited. It is also alleged that sample charas along with specimen seal impressions 'H' and 'T' NCB form search and seizure memo copy of FIR and docket were sent to FSL Junga through C. Bhup Singh vide RC No. 79/2007. It is further alleged by prosecution that same were deposited with FSL Junga and application Ext. PW3/H was filed before the Judicial Magistrate 1st Class Court No. III Mandi for compliance of provisions of Section 52 -A of the Narcotic Drugs and Psychotropic Substances Act (Hereinafter referred to as 'the Act'). It is alleged that on dated 4th August, 2007 SI/SHO Mangat Ram produced the case property with two sealed parcels along with Register No. 19 of the Malkhana before the Judicial Magistrate 1st Class, Court No. III Mandi. It is further alleged by prosecution that JMIC Mandi opened both parcels containing samples of charas. It is alleged by prosecution that Judicial Magistrate 1st Class Mandi also weighed the contraband and charas was found homogeneous. It is also alleged by prosecution that Judicial Magistrate 1st Class passed the order Ext. PW3/M under Section 52(A) of the Act and as per the chemical report Ext. PX the sample was of charas. Accused took the defence that on the fateful day he was returning from Paldi where he was working as labourer in the slate mines and he came in a bus up to Thalout tunnel where he alighted from the bus and came in Bawa Bus Service up to Hanogi temple. The bus was stopped at Hanogi temple where passengers alighted from the bus in order to offer prayer in the temple and he also came out of the bus and also offered prayer in the temple and he was taken by the police forcibly from Hanogi temple to Police Station Aut. He had moved application in the Court and also made complaint to S.P. Mandi that he was falsely implicated in the case. Devinder Nath was also travelling in Bawa Bus Service who also alighted at Hanogi Mata temple to offer prayer in the temple. He was working as labourer with Thakur Dass of Paldi in the slate mine. He has stated that he has been falsely implicated in present case.

(3.) PROSECUTION examined as many as nine witnesses in support of its case and accused examined six witnesses in defence: -