STATE OF HIMACHAL PRADESH Vs. GABBER SINGH

JUDGEMENT

(1.) THE instant appeal is directed by the State, against the impugned judgment, rendered on 31.12.2007 by the learned Special Judge, Bilaspur, Himachal Pradesh in NDPS case No. 11 of 2004, whereby, the learned trial Court acquitted the accused/respondent for his having committed offences under Sections 20 and 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

(2.) BRIEF facts, of the case are that on 3.3.2004 ASI Deep Ram along with ASI Mohinder Singh, H.C. Nanak Chand, H.C. Jasbir Singh, Constable Ram Singh and LC Nirmla Devi of CIA Staff, was on patrol duty near Jamli. At about 4.30 p.m., a secret information was received that accused Gabber Singh, who runs a dhaba at Jamli deals in the business of charas and afeem (opium) in his dhaba. This information was reduced into writing and sent to the higher Police Officer at Bilsapur through constable Ram Singh. Thereafter, a raiding party was constituted in which independent witnesses, namely, Ghunger Ram and Prem were associated. When the raiding party visited dhaba of the accused, he was found there. He was informed in writing about the information that he was in possession of sufficient quantity of charas and afeem and for this reason his dhaba was required to be searched. He was further informed whether he wanted his dhaba to be searched in the presence of Magistrate or Gazetted Officer or by the police. Upon this, the accused consented that the search of his dhaba be carried out by the police. A consent memo in this regard was prepared. Thereafter the search of the dhaba was carried out. In the upper room of the dhaba, there was a shelf on the left wall on which photographs of Goddess Durga and God Shiv were kept. Behind those photographs, there was an empty pouch (polythene) of Una No. 1 which was found containing charas in the shape of wicks. In other polythene envelope there was 13 puriyans of afeem. In the shelf, there were 202 currency notes of the denomination of Rs. 100/ - each, total Rs. 20,200/ -. Allegedly, this money was the out come of the business of charas and opium. On weighment, opium was found to be 50 grams and charas was found to be 220 grams. From the recovered charas, two samples each weighing 25 grams were separated and sealed with seal 'S'. The bulk charas i.e. 170 grams was put in the same pouch and it was also sealed with seal 'S'. Whereas, bulk charas was marked as 'A' and the samples were marked A -1 and A -2. Similarly, two samples each weighing 10 grams were also drawn from the recovered opium and sealed in a polythene envelope with seal 'S'. The bulk opium was put in the same polythene envelope and also sealed with seal 'S'. Thereafter, the bulk opium was marked as 'B', the samples thereof were marked as B -1 and B -2. The recovered currency was also sealed in a cloth parcel with seal 'S' and it was marked as 'C'. NCB forms in triplicate were prepared. The impression of the seal used in sealing was taken on cloth and the seal after its use was handed over to witness Premu. The licence of the dhaba was also taken into possession along with the case property through a seizure memo. During the course of investigation, site plan was prepared and statements of the witnesses were recorded. Special report under Section 57 of the Act was prepared and sent to S.P., Bilaspur. The sealed samples were sent to CTL, Kandaghat and to this effect opinion was obtained as per which the samples were found to be that of charas and opium.

(3.) THE accused was charged for his having committed an offence punishable under Sections 20 and 18 of the Act, by the learned trial Court, to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined 13 witnesses. On closure of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded in which he pleaded innocence and claimed false implication.