STATE OF HIMACHAL PRADESH Vs. IVOR FLEITCHER

JUDGEMENT

(1.) The present appeal under Section 378 of the Code of Criminal Procedure has been filed by the State of Himachal Pradesh, assailing the judgment dated 28.6.2003 of learned Sessions Judge, Kullu, whereby the Respondents Ivor Fleitcher and Robert Williams, British Nationals, from whom 20 Kgs. 'Charas' had allegedly been recovered on 12.4.2002, have been acquitted.

(2.) Facts that need to be noticed for the disposal of the appeal may be summed up thus. On 12.4.2002, HC Lal Singh of Police Post Patli Kuhal accompanied by two other Head Constables, namely HC Prakash Chand and HC Sarwan Kumar, three constables namely, C. Om Parkash, C. Sunder Singh and C. Ishwar Das and Home Guard Volunteer Gian Chand went towards Dollu-nallah, in connection with routine patrolling. Around 8 or 8.30 a.m., when the party reached near Camping site of tourism department, which is closed to Dollu-nallah, the two Respondents were spotted standing near the boundary wall of tourism hotel/camping site. On seeing the police, they tried to hide behind the boundary wall of the said hotel/camping site. This aroused the suspicion of the police party. They went to the Respondents and enquired about their names and particulars. HC Lal Singh told that he suspected that they (the Respondents ) were carrying some contraband and so it was intended the search their persons and if they so desired, search of their persons could be arranged in the presence of a Magistrate or some Gazetted Officer. The Respondents opted to be searched, on the spot, by the members of the aforesaid police party. The Respondents were carrying two attache- cases and two bags. From the search of the two attache- cases, Charas in the shape of biscuits/chapaties and sticks was recovered. On weighment, the stuff recovered from each of the two attache cases was found to be 10 Kgs. The recovered Charas was seized. Two separate search and seizure memos were prepared. Two samples from the stuff recovered from each of the two attache cases were separated. The samples so separated were sealed with a seal which produced the impression of letter 'H' of English alphabet. The bulk stuff was placed back into the two attache cases. The attache cases were made up in to parcels, with cloth covering and those parcels were also sealed with the same seal as the samples of the recovered stuff. The seal, after use, was given to a member of the police party, namely HC Prakash Chand. NCB forms were also filled in on the spot. A written report of the search and seizure and the circumstances, which led to the making of the search, was prepared and sent to the Police Station, Manali for the formal registration of the case. The case property was produced before the Station House Officer, Police Station, Manali, who put his own seal on the samples parcels and also on the parcels of attache cases with bulk stuff therein. The seal used by the Station House Officer produced the impression of letter 'A' of English alphabet. One sample each from two sets of the samples, taken from each of the two attache cases, was sent to the Chemical Examiner. The Chemical Examiner reported that the contents of samples were of Charas. The Judicial Magistrate, Manali, was approached under Section 52(A) of the Narcotic Drugs and Psychotropic Substances Act, for certifying the inventory of the recovered stuff, the weight of the recovered stuff and also for taking the photographs of the stuff. The Judicial Magistrate visited the Police Station and issued necessary certificate.

(3.) On completion of the investigation, report under Section 173 of the Code of Criminal Procedure, was filed in the Court of learned Sessions Judge, Kullu, who after complying with the requirement of the Section 207 of the Code of Criminal Procedure charge sheeted the Respondents and on their pleading not guilty put them on trial and finally acquitted them.