SANJAY KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The present appeals are directed against the judgment and order dtd. 16/6/2021, passed by learned Special Judge, Ghumarwin, District Bilaspur, H.P. (learned Trial Court), vide which the appellants, namely, Sanjay Kumar @ Sonu and Jasmer Singh (accused before the learned Trial Court), were convicted of the commission of an offence punishable under Sec. 20 (b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') and the respondent Pradeep @ Goga (accused before the learned Trial Court) was acquitted of the commission of an offence punishable under Sec. 20(b)(ii) (C) of NDPS Act. Accused Sanjay Kumar @ Sonu and Jasmer Singh were sentenced to undergo rigorous imprisonment for ten (10) years each, and they were directed to pay a fine of Rs.1,00,000.00 each for the commission of an offence punishable under Sec. 20(b)(ii) (C) of NDPS Act and in default of payment of the fine, they were directed to undergo further rigorous imprisonment for one year. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

(2.) Briefly stated, the facts giving rise to the present appeals are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Ss. 20 and 29 of the NDPS Act. It was asserted that SI/SHO Yog Raj (PW-14), HC Bhag Singh (PW-3), Constable Krishan Baldev (PW-4), HHG Inder Pal and HHG Banta were present at Swarghat, near B.D.O. Office in an official vehicle bearing registration No. HP69-A-0130, which was being driven by HHG Sanjeev Kumar. They were checking the vehicles moving on the road. Tehsildar Jaspal (PW-2) and Raj Pal (PW-1) were going towards Swarghat at 10:15 a.m. They stopped their car and started talking to SI/SHO Yog Raj (PW-14). A car bearing registration No.HR-10L-8800 came from Bilaspur, H.P., which was signalled to stop. The driver revealed his name as Sanjay @ Sonu, and a person sitting beside him revealed his name as Jasmer Singh. They got frightened after seeing the police. The police became suspicious that they might be carrying some contraband with them. A search of the car was conducted in the presence of Jaspal Singh (PW-2) and Raj Pal (PW-1). SI/SHO Yog Raj found during the search that the plastic cover/lids of the gear lever and hand brake fitted in the car were not in their position. He lifted the plastic lids/cover and recovered five (5) packets (Ext. P-5 to P-9) wrapped with Khaki tape. SI/SHO Yog Raj (PW-14) removed the Khaki tape and found black sticks wrapped in transparent polythene. He checked the sticks and found them to be Charas (cannabis). He put all the sticks in a single polythene packet (Ex. P-9) and weighed the sticks on an electronic scale. The total weight of cannabis was found to be 1 kg 394 grams. The weight of the Khaki tape and the remaining four (4) transparent polythene packets were found to be 35 grams. The cannabis in the transparent packets was put in a cloth parcel. The remaining polythene packets and Khaki tape were put in a separate cloth parcel. Both the cloth parcels were sealed with six seal impressions of seal 'H' each. The sample seal (Ext.PW-1/D) was taken on a separate piece of cloth. NCB form (Ext.PW-2/A) was filled in triplicate, and a seal impression was put on the form. The seal was handed over to Tehsildar Jaspal Singh (PW-2) after its use. Accused Sanjay Kumar produced RC (Ext.PR-1), Driving licence (Ext.PR-2), Insurance certificate (Ext. PR-3), and keys of the car and the car. The documents of the car, car and the parcels were seized vide memo (Ext.PW-1/A). SI/SHO Yog Raj (PW-14) prepared a rukka (Ext.PW-14/A) and handed it over to HC Bhag Singh (PW-3) with a direction to carry it to Police Station Swarghat, where F.I.R. (Ext.PW-10/A) was registered. SI/SHO Yog Raj (PW-14) conducted the investigation. He prepared the site plan (Ext.PW14/B) and recorded the statements of the witnesses as per their version. Photographs (Exts.PN-1 to PN-24) of the proceedings were taken. SI/SHO Yog Raj arrested the accused vide memos (Ext.PW1/B and Ext.PW-1/C). He handed over the case property to HC Ram Pal (PW-5) at the Police Station. HC Ram Pal (PW-5) made an entry in register No. 19 (Ext. PW5/A and Ext.PW-5/B) and deposited the case property in Malkhana. He handed over the case property to MHC Naginder Singh (PW-9), the regular MHC. MHC Naginder Singh (PW-9) handed over the parcels to SI/SHO Yog Raj on 12/9/2016 to get the inventory certified. SI/SHO Yog Raj produced the case property and an application for certifying the correctness of the inventory before the learned Chief Judicial Magistrate, Bilaspur H.P., who assigned the application to learned Judicial Magistrate First Class, Bilaspur, H.P. Two samples of twenty-five (25) grams each were drawn after making the cannabis sticks homogeneous. Each sample was packed in two separate cloth parcels. The thin transparent wrappers were removed from the cannabis, and their weight was found to be twenty-two (22) grams. These wrappers were packed in a separate cloth parcel. Each parcel was sealed with a seal impression of JMIC-Bilaspur (H.P). The photographs of the proceedings (Ext.PK-1 to Ext.PK-16) were taken. Learned Judicial Magistrate First Class passed an order and certified the inventory (Ext.PW- 11/A) by issuing a certificate (Ext.PW-11/B). Case property was deposited with MHC Naginder Singh (PW-9), who entered it at Sl. No. 29 of Malkhana register and kept the case property in Malkhana. He handed over the bulk parcel containing 1.322 kilograms of cannabis and one parcel containing 25 grams of cannabis, sample seal 'H', seal impression of JMIC-Bilaspur (H.P.),NCB -I form, copy of the F.I.R. and copy of the order of the Court to Constable Kirshan Kumar (PW-4) with a direction to carry them to FSL Junnga vide RC No. 56/16 ( Ext.PW-9/B). Constable Krishan Kumar (PW-4) deposited all the articles in a safe condition at FSL Junga and handed over the receipt to MHC Naginder Singh (PW-9) on his return. SI/SHO Yog Raj (PW-14) prepared the Special Report (Ext.PW-7/A) and handed it over to Dy.S.P. Baldev Dutt on 13/9/2016. Dy.S.P. Baldev Dutt made an endorsement on the Special Report and handed it over to Kuldeep Singh (PW7), who made an entry in the Special Report register (Ext.PW-7/A) and retained the Special Report on record. SI/SHO Yog Raj (PW-14) interrogated accused Jasmer Singh, w ho disclosed that the mobile phone recovered from him during the personal search, did not belong to him but to Pradeep @ Gogga, who had got down at Sunder Nagar and left his mobile phone in the vehicle. The mobile phone was put in a cloth parcel, which was sealed with four impressions of seal 'U'. The sample seal (Ext.PW-3/A) was taken on a separate piece of cloth. The mobile phone was seized vide memo (Ext.PW-3/B). It was found during the investigation that all the accused were together. They had purchased the charas together and had visited Fun and Food Corner at Panarsa to take the food. An application (Ext.PW-14/J) was filed to obtain the billing address, call detail record, customer application form and tower location. Pradeep @ Goga was already arrested in some other case. His custody was transferred. He pointed out the hotel where he had taken the food. He identified Vikas Kumar (PW-8) and Trilok Chand (PW-6). They also identified the accused. A memo (Ext.PW-16/A) was prepared, and a photograph (Ext.PW-18/A) was taken. The statements of the remaining witnesses were recorded as per their version. After the analysis, the result of the analysis (Ext.PW-9/A) was issued, in which it was shown that the sticks analysed in the laboratory were charas, which contained 26.54% and 25.65% w/w resin in it. The statements of the remaining witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the learned Trial Court.

(3.) The learned Trial Court charged the accused with the commission of offences punishable under Ss. 20 and 29 of the NDPS Act, to which the accused pleaded not guilty and claimed to be tried.