AAM BAHADUR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THE instant appeal is directed against the judgment of the learned Special Judge -II (Additional Sessions Judge), Kullu, Himachal Pradesh, rendered on 24.01.2015 in Session Trial No. 86 of 2014 (2013), whereby, the learned trial Court convicted the accused for his having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act") and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/ - and in default of payment of fine, sentenced him to suffer simple imprisonment for one year.

(2.) THE facts relevant to decide the instant case are that on the evening of 7.7.2013 around 8.15 p.m., a police party headed by PW -8 SI Gaurav Bhardwaj of Police Post Manikaran, consisting of H.C. Yash Pal, H.C. Ramesh, C. Tej Ram and C. Bhagat Ram was present in connection with Nakabandi duty one kilometer ahead of Tegadi Nala on the road in official vehicle having been driven by C. Vishwa Nath, then accused came on foot from Barshaini side towards Manikaran and on seeing the police party and police vehicle accused turned back and tried to flee away from the spot. At that time accused was carrying a black colour bag on his back and the accused was nabbed by the police party at a distance of 5 to 10 steps. The accused was asked about his name who disclosed his name as Aam Bahadur, citizen of Nepal and when the accused was asked by the police about the reason of his roaming at night time with bag, the accused got perplexed and could not reply satisfactorily. As the place was isolated and secluded one and no vehicular traffic was there, SI Gaurav Bhardwaj sent Constable Bhagat Ram (PW -7) to call independent witnesses, who came after ten minutes and disclosed that no local witness was available. The Investigating Officer Shri Gaurav Bhardwaj associated H.C. Yash Pal and C. Bhagat Ram as witnesses and in their presence apprised the accused orally as well as in writing about his legal right to be searched before a Magistrate or Gazetted Officer regarding which memo Ex. PW7/A was prepared. Thereafter personal search of the accused was conducted by the Investigating Officer but nothing incriminating was found regarding which memo Ex. PW7/C was prepared. Thereafter bag, Ex. P -6 which the accused was carrying in his hand was searched and on opening the zip of the main pocket of bag 16 packets wrapped with khakhi cello tape, Ex. P -2 were found and when the cello tape was removed inside the same transparent wrappers, Ex. P -3 containing black colour substance in pan cake shape were found and when the said wrappers were opened, black colour substance was found charas, Ex. P -4. The recovered charas was weighed with the help of an electronic scale and its weight was found 7 kg. 800 grams. The recovered charas was again put inside the wrappers and then in a cloth parcel, Ex. P -1 and the parcel was sealed with eight seals of "W". Sample of seal was separately taken on a piece of cloth, Ex. PW7/D as well as on NCB -1 form, Ex. PW1/A. The black colour bag, Ex. P -6 which the accused was carrying was also put in a cloth parcel, Ex. P -5 and the parcel was sealed with six seals of 'A'. Specimen of seal was aso take on a piece of cloth, Ex. PW7/E and both parcels were taken into possession through seizure memo Ex. PW7/F in the presence of witnesses who put their signatures on the seizure memo which was also signed by the accused. Rukka Ex. PW8/A was sent to the police station through C. Bhagat Ram on the basis of which FIR Ex. PW5/A was registered. The Investigating Officer prepared the site plan and the accused was arrested. The photographs of the spot were taken by the Investigating Officer. The Investigating Officer handed over the accused and besides that also handed over case property along with NCB -1 form, sample of seals, relevant papers to the the then Station House Officer ASI Bala Ram for resealing who resealed the case property with six seals of 'T' and after filling relevant columns of NCB -1 form Ex. PW1/A obtained sample of seal on a piece of cloth Ex. PW1/B and thereafter handed over the case property, i.e. sealed parcel, sample seals and other relevant documents of MHC H.C. Ram Krishan, who deposited the same in the malkhana by making entry in the Malkhana register and sent the case property i.e. parcel containing charas, sample seals and relevant documents through HHC Gian Chand, PW -6 vide R.C. No. 142/2013 for depositing at SFSL, Junga who accordingly deposited the same at SFSL, Junga and on his return handed over the receipt to the MHC. The Investigating Officer also handed over special report to Addl. S.P. Nihal Singh on 8.7.2013.

(3.) THE accused was charged by the learned trial Court for his having committed an offence under Section 20 of the NDPS Act. In proof of the prosecution case, the prosecution examined 8 witnesses. On conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the Court, in which the accused claimed innocence and pleaded false implication in the case besides chose not to lead any evidence in defence.