STATE OF H P Vs. GULSHER MOHD

JUDGEMENT

(1.) The instant appeal is directed against the judgement of acquittal, rendered on 10.3.2008, by the learned Sessions Judge, Sirmaur District at Nahan, H.P., in Sessions trial No.07-ST/7 of 2005, whereby the respondent/accused has been acquitted for his having committed offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein-after referred to as 'NDPS Act').

(2.) The prosecution story, in brief, is that on 21.2.2004, at about 4:00 p.m., Incharge CIA Inspector N.S.Rathour (PW-11), along with HC Mujahir Khan, Constables Shamim Akhtar (PW-1), Hussain Singh (PW-4) and Kamal Khan (PW-9), was present at Miserwala, Tehsil Paonta Sahib in connection with detection of Excise and Narcotics cases when a secret information was received by PW-11 that accused Gulsher Mohammad has been dealing in narcotic drugs illegally at his Sweet Shop and used to sell Charas in small quantity to the customers, which he used to keep in the Sweets counter inside his shop. The reasons of belief comprised in Ext.PW-4/A, reduced into writing and were sent to SDPO, Paonta Sahib through Constable Hussan Singh. Accordingly, a raiding party was formed in which PW-11 had joined Ashish Kumar (PW-2) and Yusuf Ali being independent witnesses, besides the other police officials, named herein-above. The police party accordingly arrived at the Sweet Shop of accused, where the accused was found present in his shop. Thereafter, the accused was informed by PW-11 about the secret information, so received. The option of the accused, to be searched either by a Gazetted Officer or by a Magistrate, too, was recorded, for which the accused agreed to be searched by the Police Officer. The consent memo comprised in Ext.PW-1/A, in that regard, was reduced into writing. The policemen and independent witnesses also gave their search to the accused and nothing incriminating was recovered from them. Thereafter, the memos were prepared. The search of the shop of the accused was then conducted in presence of the witnesses, on which a polythene packet was recovered from the lower shelf of the sweet counter. On opening the said packet, it was found containing Charas in the shape of sticks. The Charas was weighed and was found to be 500 grams. The police also got it photographed and out of the Charas, so recovered, two samples of 25 grams each were drawn separately, which, along with the bulk part of the Charas, were taken into possession after being duly sealed with seal impression 'T'. The seal, after use, was handed over to witness Yusuf Ali. The recovery memo comprised in Ext.PW-1/F was prepared accordingly. The FSL (NCB) forms were also filled in on the spot. Ruqua comprised in Ext.PW-11/A was sent through Constable Kamal Khan to the Police Station for registration of the case and on the basis of which FIR Ext.PW-8/B was registered. The case property was taken to Police Station, Paonta Sahib and was handed over to SHO along with NCB Form and specimen seal, who re-sealed the parcels with seal impression 'H' and issued certificate comprised in Ext.PW-8/C. The sample Charas was sent to CTL, Kandaghat with specimen seal and NCB Form vide RC No.26/2004. The special report Ext.PW-7/A was also sent to SDPO, Paonta Sahib. The police also prepared the site plan comprised in Ext.PW-11/B. Thereafter, on receipt of Chemical Examiner's report Ext.PW-8/D and on completion of investigation by the police in the matter, the challan was presented in the Court of learned Judicial Magistrate 1st Class, Court No.1, Paonta Sahib, under Section 20 of the NDPS Act, who vide order dated 1.3.2005, committed the case to the Court of learned Sessions Judge, Sirmaur.

(3.) Accused was charged for his having committed offence punishable under Section 18 of the NDPS Act, by the learned trial Court, to which he pleaded not guilty and claimed trial.