RAJU GHARTI Vs. STATE OF H.P.

JUDGEMENT

(1.) The present appeal is directed against the judgment and order dtd. 22/6/2022, passed by learned Special Judge-II Sirmaur, District at Nahan, H.P. (learned Trial Court) whereby the appellant (accused before learned Trial Court) were convicted of the commission of an offence punishable under Sec. 18 of the Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act') and each accused was sentenced to undergo rigorous imprisonment for 10 years, pay a fine of Rs.1,00,000.00 for the commission of aforesaid offence and in default of payment of fine to undergo further simple imprisonment for six months. (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 appeal are that the police filed a charge sheet against the accused before the learned Trial Court for the commission of offences punishable under Ss. 18 and 29 of the NDPS Act. It was asserted that ASI-Rajinder Singh (PW13), HC-Hari Chand (PW14), HC-Rupender Singh (PW6), Constable-Kailash Panwar (PW10) and Constable Amit Kumar (PW12) were present near the temple ahead of Sainwala in a private car bearing registration No. HP-17C-0639 on 11/7/2016 at around 2:15 PM in civil uniform. ASI-Rajinder Singh (PW13) received a secret information that a truck bearing registration No. HP-10B-1117 was bringing the narcotics from Kala Amb towards Nahan. The information was credible; hence, it was reduced into writing (Ext. PW1/A) and was handed over to Constable Kailash Panwar (PW10) with a direction to carry it to the Additional Superintendent of Police, Nahan, Constable Kailash Panwar (PW10) handed over the information to the Additional Superintendent of Police, Nahan on the same day at 3:15 pm. He returned to the spot and handed over the copy of the information to the Investigating Officer on his return. A vehicle bearing registration No. HP-18B-8159 came from Nahan at about 2:40 pm. The police signalled the driver to stop the vehicle. The driver stopped the vehicle and revealed his name as Jaideep Pal (PW7) on inquiry. One person was sitting beside the driver, who revealed his name as Om Prakash (PW4). They were requested to join the police team as witnesses and they agreed. The truck bearing registration No. HP-10B-1117 came from Kala Amb at 3:15 pm. ASI-Rajinder brought the vehicle bearing registration No. HP-17C-0639 to the middle of the road and stopped the truck with the help of the accompanying police officials. The driver revealed his name as Shankar Thapa (accused no. 2). The person sitting beside the driver revealed his name as Bishan Singh (accused no. 4) and the persons sitting on the rear seat revealed their names as Naveen (accused no. 3) and Raju Gharti (accused no. 1). The driver produced the registration certificate issued in the name of Vivek Sharma (PW5). He also produced insurance certificate and his driving license. The police gave option to the driver and other persons under Sec. 50 of the NDPS Act (Ext. PW4/A) to be searched before the Magistrate or the Gazetted Officer. The accused consented to be searched by the police. The police checked the truck and found that it was empty. The police lifted the truck seats and found one backpack (Ext. 'PB'). The police opened the backpack and found 06 packets (Ext. P1 to Ext. P6) inside the backpack. The packets contained black dark substance. The packets were cut from the sides and the substance inside them was smelled and tasted. It was found to be opium. A memo of identification (Ext. PW4/C) was prepared. The driver and other persons could not produce any license/permit regarding the transportation of the opium. The police weighed the packets. Packets No.1 to 4 were found to be weighing 506 grams each. Packet 5 contained 500 grams and Packet 6 contained 200 grams of opium. Thus, the police found 2.740 Kilograms of opium. The police taped each packet and put all the packets in the backpack in the same manner in which they were recovered. The backpack was put in a cloth parcel (Ext. 'PA') and the parcel was sealed with 5 impressions of seal 'H'. NCB-I form (Ext. PW9/E) was filled in triplicate. A seal impression was put on the form and the seal was handed over to Om Prakash (PW4) after the use. A memo regarding the handing over of the seal (Ext. PW4/E) was prepared. Constable Amit Kumar took the photographs (Ext. PW8/A1 to Ext. PW8/A13) with the help of his mobile phone. The police seized the parcel, sample seal, form NCB-I, truck, registration certificate, insurance, driving license and key vide memo (Ext. PW4/F). Rukka (Ext. PW9/A) was prepared and sent to the police station through Constable Amit Kumar where FIR (Ext. PW9/B) was registered. Rajinder Singh (PW13) carried out the investigation on the spot. He prepared the site plan (Ext. PW13/A) and recorded the statements of the witnesses as per their version. He arrested the accused. The case property was produced before SHO-Yogender Singh (PW9), who re-sealed the parcel with three seal impressions of seal 'X'. He obtained the sample seal (Ext. PW9/D) on a separate piece of cloth. He filled columns No.9 to 11 of the NCB-I form and put the seal impression on the form. He prepared the re-sealing certificate (Ext. PW9/F). He handed over the parcel, sample seals and NCB-I form to HC-Balbir Singh (PW15), who was posted as MHC. HC-Balbir Singh deposited all the articles in malkhana. He made an entry in the register (Ext. PW15/A). He handed over the case property to Constable Rizwan Ali (PW2) with a direction to carry it to SFSL Junga vide RC No. 79/16 (Ext. PW15/B). A special report (Ext.PW1/B) was prepared and sent to the Additional Superintendent of Police, Sirmaur at Nahan through Constable Kailash. Constable Kailash handed over the special report to the Additional Superintendent of Police. The Additional Superintendent of Police made an endorsement on the report and handed it over to his Reader HC-Ramesh Kumar (PW1), who made an entry in the register (Ext. PW1/A) and retained the report on record. HC-Hari Chand (PW14) conducted the investigation. The owner of the truck produced an affidavit (Ext. PW5/A) which was seized vide memo (Ext. PW5/B). Report of analysis (Ext. PW14/A) was issued, in which, it was shown that the exhibit stated as opium was a sample of opium, which contained 6.05% w/w morphine 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.) Learned Special Judge-II, Sirmaur at Nahan (learned Trial Court) charged the accused with the commission of offences punishable under Ss. 18 and 29 of the NDPS Act to which the accused pleaded not guilty and claimed to be tried.