NARCOTIC CONTROL BUREAU Vs. KANWAR SINGH

JUDGEMENT

(1.) The present appeal is directed against the judgment dtd. 26/2/2013, passed by learned Special Judge, Mandi, District Mandi, H.P. (learned Trial Court) vide which the respondents (accused before learned Trial Court) were acquitted of the commission of offences punishable under Ss. 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'). (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 Narcotics Control Bureau (complainant) filed a complaint against the accused for the commission of offences punishable under Ss. 20 and 29 read with Sec. 8 of the NDPS Act. It was asserted that R.L. Negi (PW4) was posted as Intelligence Officer in the Narcotics Control Bureau, Sub Zone, Mandi. Kuldeep Sharma (PW5) was posted as Superintendent of the Narcotics Control Bureau, Sub-Zone, Mandi. He was an empowered officer under Sec. 41(2) of the ND&PS Act, 1985. R.L. Negi (PW4), received secret information (Ex.PW4/A) on 13/3/2012 that two persons, namedy Kanwar alias Kamar Singh and Tolu Ram were involved in the drug trafficking and they would carry a huge consignment of charas. The information was reduced to writing and conveyed to the Superintendent of the Narcotics Control Bureau. Kuldeep Sharma (PW5) authorized R.L. Negi (PW4) to constitute a team in writing vide his endorsement (Ex.PW4/B). R.L. Negi (PW4) constituted a team consisting of himself, Arvind Sharma, Virender Singh (PW1), Manohar Lal, Brahma Nand, HC Hem Raj (PW3), Constable Manohar Singh and driver Tilak Raj. The team proceeded towards Baridhar at about 7.00 AM. They associated two independent witnesses namely Hans Raj and Rishi (PW2). R.L. Negi (PW4) requested them verbally as well as by serving notices (Ex.PW4/C and Ex.PW4/D) to join the investigation. The NCB Team reached Baridhar-Katindi-Mandi road at 7.30 PM and set up a Naka. Accused persons came towards them at about 8.00 AM. One of them had worn a black jacket. He had a black bag on his shoulder. When the NCB Team tried to stop them, they ran away. They were apprehended. One person, carrying the bag, revealed his name as Kanwar Singh and the other person revealed his name as Tolu Ram. R.L. Negi (PW4) introduced himself, members of the team and the witnesses. He disclosed the information received by him. He served notices (Ex.PW4/E and Ex. PW.4/F), upon Kanwar Singh and Tolu Ram respectively under Sec. 50 of the ND&PS Act. He apprised them that they had a right to be searched before a Magistrate or Gazetted Officer. He also apprised them that Shri Kuldeep Sharma was a Gazetted Officer with them. Kanwar Singh and Tolu Ram stated that they had no objection to being searched in the presence of Kuldeep Sharma. They made an endorsement to this effect upon the notices served upon them. Kanwar Singh took out the bag from his shoulder and opened it. A white cotton bag was found in the bag. A transparent polythene pack filled with suspected material was found in the bag. Kanwar Singh opened the bag and it was found to contain dark brown/black finger-shaped suspected material having a pungent smell. Kanwar Singh and Tolu Ram revealed that the substance was charas. A small portion of the suspected material was taken out of the polythene envelope and it was tested with the help of a Drug Detection Kit. Tests were found to be positive for charas/hashish. R.L. Negi (PW4) seized the material. He weighed it on an electronic weighing machine and found its weight to be 5.500 kilograms. He prepared the recovery-cum-seizure memo (Ex.PW4/G), which was signed by the accused and the witnesses. R.L. Negi (PW4) separated two samples of 25 grams each by taking small pieces of charas out of some sticks and some balls. The samples so drawn were put in separate polythene pouches, which were heat-sealed. These were put in separate envelopes. A white paper slip was pasted towards the opening of each envelope. The samples were marked A-1 and A-2. The remaining bulk material weighing 5.450 Kg. was packed in a polythene packet. The packet was heat sealed and was kept in a markine cloth bag. The cloth bag was marked as Lot A. R.L. Negi (PW4) prepared memos (Ex.PW3/B and Ex.PW4/H). He obtained a seal bearing the words 'NARCOTICS CONTROL BUREAU, CHD-4' from Arvind Sharma and affixed four seal impressions on each sample packet A-1, A-2 and three seal impressions on 'Lot-A'. The packing material namely a black bag, white cotton bag and transparent polythene used for packing were separately kept in a polythene. The polythene was heat sealed and it was put in a markine cloth bag. The markine cloth bag was marked as 'Lot-X'. The opening side of 'Lot-X' was sewed properly and three seals were affixed on it. The seals were so affixed on the packets that the packets could not be opened without breaking the seals. Accused (Kanwar Singh and Tolu Ram), witnesses (Rishi and Hans Raj) and R.L. Negi (PW4) placed their signatures on sample packets (A-1 and A-2), Lot A and Lot-X. Panchnama (Ex.PW4/J) was prepared. The seal was handed over to Arvind Sharma after the completion of the process. Notices (Ex.PW4/K and Ex. PW4/L) were served upon accused Kanwar Singh and Tolu Ram, respectively. Kanwar Singh and Tolu Ram made statements (Ex.PW4/M and Ex. PW4/N) before Arvind Sharma, Intelligence Officer under Sec. 67 of the NDPS Act. Accused Kanwar Singh and Tolu Ram were arrested vide memos (Ex.PW4/O and Ex. PW4/P). Jamatalashi of the accused was conducted and the memos of Jamatalashi (Ex.PW4/Q and Ex. PW4/R)) were prepared. Information about the arrest of the accused (Ex.PW4/S and Ex.PW4/T) was given. Notices (Ex.PW4/U and Ex. PW4/V) were served upon Hans Raj and Rishi. Rishi made a statement (Ex.PW4/W) and Hans Raj made a statement (Ex.PW4/X) before Kuldeep Sharma. The case property was handed over to Kuldeep Sharma, Superintendent, NCB, who sent the parcel (A1) to CRCL for chemical examination through Hem Raj with a letter (Ex.PW3/A). Hem Raj (PW3) deposited the sample at CRCL in a safe condition and obtained the receipt (Ex.PW3/C). The report under Sec. 57 of the ND&PS Act (Ex.PW4/Y) was handed over to Kuldeep Sharma. The Chemical Examiner, CRCL issued a report stating that the sample under reference was charas based on the colour test, microscopic, chemical and chromatographic examination. Hence, a complaint was filed before the Court against the accused for the commission of offences punishable under Ss. 20 and 29 of the ND&PS Act read with Sec. 8 of the Act.

(3.) Learned Special Judge, Mandi charged the accused Kanwar Singh and Tolu Ram with the commission of offences punishable under Ss. 20 and 29 of the ND&PS Act. They pleaded not guilty and claimed to be tried.