KISHORI LAL Vs. STATE OF H.P.

JUDGEMENT

(1.) The instant appeal is directed against the findings of conviction recorded by the learned Judge Special Court (Additional Sessions Judge), Fast Track Court, Hamirpur against the accused/appellant for his having been proved to be in conscious and exclusive possession of 222.0 grams of heroin and 03.397 grams of charas. However, the learned trial Court recorded findings of acquittal in favour of the accused/appellant qua his allegedly, consciously and exclusively possessing 50 grams of heroin.

(2.) The appellant/accused is aggrieved by the findings of conviction recorded against him qua his allegedly, consciously and exclusively possessing 222.0 grams of heroin and 03.397 grams of charas. Nonetheless, the State of Himachal Pradesh has not preferred any appeal against the findings of acquittal recorded in favour of the accused/appellant qua his consciously, exclusively possessing 50 grams of heroin.

(3.) Brief facts of the case are that on 3.5.2012 at 10.15 a.m. a police party headed by SI Rajinder Kumar along with HC Kapil Dev, HHC Kamlesh Kumar, HHC Pawan Kumar, Constable Sumit Kumar and Constable Jagat Ram of State Vigilance & Anti Corruption Bureau (SV&ACB), Police Station, Hamirpur, District Hamirpur, H.P., were on patrol duty and when they reached at Shukkar Khad near village Beri, Tehsil and District Hamirpur, at about 1.30 p.m. they saw the accused sitting alone at a deserted place in the Khad. The accused on seeing the police started running. However, he was chased and apprehended by the police. On ascertaining the identity of the accused, SI Rajinder Kumar sent the police officials to secure the presence of independent witnesses, however, none could be associated as the accused was apprehended at a deserted place. The accused was then given an option either to be searched by the police officer or before a gazetted officer or before a Magistrate, the accused exercised his option to be searched by a police officer. The police officials also gave him their personal search, but during their search, nothing incriminating was recovered. On the personal search of the accused, one transparent polythene bag from the left pocket of his shirt containing 20 small paper packets (Puriyan) containing dark brown substance along with polythene pouch containing dark brown powder substance was recovered. On inquiry, the accused disclosed the substance aforesaid to be heroin. Thereafter SI Rajinder Kumar called for NDPS Testing Kit and on receipt thereof, the confirmatory test was conducted and the brown coloured powder substance was found to be heroin, qua which confirmation test memo was prepared in presence of HC Kapil Dev and Constable Sumit Kumar. The recovered contraband was weighed and same was found to be weighing 50 grams. The poly-thene bag containing contraband was packed, stitched and sealed in a cloth parcel after affixing five seals bearing impression T and was taken into possession vide seizure memo. The sample seal impression H was taken on separate piece of cloth for the purpose of record and seal H after its use was entrusted to HC Kapil Dev. NCB forms in triplicate were filled in by the Investigating Officer. Facsimile seal impression H was also taken on the aforesaid forms. Ruuka was sent through HHC Pawan Kumar to Police Station State Vigilance & Anti Corruption Bureau, Hamirpur. On the basis of which, case FIR No. 3 of 3.5.2012 came to be registered against the accused for his having committed the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Thereafter the police officials proceeded towards village Khathwin along with the accused for conducting the search of his house. On the way the police party associated Raj Kumar and Braham Dass, as independent witnesses. On 3.5.2012 at about5.15 p.m., the accused was formally arrested by the police for being in possession of 50 grams of heroin, regarding which arrest memo was prepared. Prior to entering the house, the police officials offered themselves to be searched again by the accused in presence of the independent witnesses but nothing incriminating was recovered from them. The police officials thereafter entered inside the house along with independent witnesses and during the course of search of a room, they spotted one grain container (Drum) kept in a corner which was opened and searched leading to recovery of one transparent plastic container of Bournvita containing polythene bags. The plastic container was opened, it contained two polythene bags (Pouches) out of which one contained dark brown colour powder and the other contained small paper packets (Puriyan) which were found to be containing powder substance. The police also recovered one small piece of black colour substance in the form of chapatti. The brown colour substance contained in the polythene bags and paper packets was tested with the help of NDPS testing kit and was confirmed heroin. In this context, NDPS confirmation test memo was prepared in the presence of independent witnesses. SI Rajinder Kumar also tested the black colour substance in the form of chapatti by burning and smelling and it was found charas. Separate confirmation test memo was prepared in this regard. The heroin was weighed and found to be 250 grams. Similarly charas was also weighed and was found to be 4 grams. The police thereafter completed seizure formalities. The polythene bags were put in the Bournvita container which was packed in a cloth parcel and stitched and sealed with 7 seals bearing impression J. Similarly, the charas was put in a polythene pouch and was packed, stitched and sealed in a cloth parcel by affixing 5 seals bearing impression J. The weighing scales along with weights were packed in a Boru and sealed with one seal bearing impression J and all the above articles i.e.2 sealed parcels and one sealed boru were taken into possession vide seizure memo in presence of independent witnesses. Sample of seal impression J was taken on a separate piece of cloth and the seal J after its use was entrusted to independent witnesses. SI Rajinder Kumar also filled in NCB forms in triplicate. Facsimile seal impression J was taken on the NCB forms in triplicate. Spotmap was prepared and statement of witnesses were recorded. The Investigating Officer presented the parcels to Shri Balbir Singh, Dy.S.P for the purpose of resealing. The parcels were resealed by affixing 3 seals bearing impression T and its facsimile was taken on NCB forms in triplicate and requisite entry regarding reasoning was made. Sample of resealing seal impression T was taken on separate piece of cloth. The sealed parcels thereafter were handed over to HC Umeshwar Singh for its deposit in Malkhana. On 5.5.2012 the sealed parcels were sent for forensic examination to State FSL, Junga . On the same day special report of arrest and seizure of the contraband was also sent to SP, SV & ACB, Central Range Mandi. On the basis of report of FSL, the contraband recovered from the possession of the accused was opined to be 28.000 grams+222.0 grams heroin (Diacetylmorphine) and 03.397 grams of charas indicating the presence of cannabinoids including the presence of tetrahydrocannabinol. On conclusion of the investigation, into the offence, allegedly committed by the accused, final report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court.