STATE OF HIMACHAL PRADESH Vs. KAMLESH ALIAS KAKA

JUDGEMENT

(1.) The present appeal is maintained by the appellant-State of Himachal Pradesh against the judgment of acquittal of the accused in a case under Sec. 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, passed by the learned Special Judge, Kullu, dated 31.3.2011, in Session trial No.43/2008.

(2.) Briefly stating facts giving rise to the present appeal are that on 31.5.2008, Police party while on patrolling duty, was present at Shishmati Kullu. In the meanwhile, ASI Balbir Singh, received a secret information to the effect that one person, namely, Kamlesh alias Kaka (hereinafter referred to as 'the accused') resident of Shishamati, having his shop near temple of Khalari Narayan, is indulging in the sale of smack. The informant also informed ASI Balbir Singh that if search conducted a large quantity of smack can be recovered. ASI Balbir Singh (Investigating Officer) complied with the provisions of Sec. 42 (2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and the said information was sent to the higher Police Officers. Thereafter, Investigating Officer along with other accompanying Police Officials proceeded to conduct the search of the shop of the accused and accused was found present in the shop. Police reached there at about 4:10 pm, in the second room of the shop, three persons were found taking tea. On inquiry, they disclosed their names as Sonu alias Rajinder, Mandeep alias Sonu and Ashok Kumar. Mandeep alias Sonu and Sonu alias Rajinder joined as witnesses by the police. In addition to this, Investigating Officer also associated ASI Man Singh as witness. Thereafter, Investigating Officer conducted the search of the shop of the accused. During search from the eastern side of the shop, Investigating Officer found two wrapping paper rolls from the lower shelf of the counter. In addition to this, one large packet (pura) made of wrapping papers, weighing scale made of brass, one weight of ten grams and one weight of two grams were also found in the same shelf. When the said 'pura' was opened, it was found containing heroin type substance. When the said substance was checked on the narcotic drugs testing kit, then positive result of heroin was found. On weighing the recovered heroin was found 14 grams. Out of it two samples of 1-1 gram each were separated for chemical analysis. In compliance to the other formalities, Investigating Officer filled in NCB form in triplicate and the case property after sealing the same, was taken into possession. The investigation was later on entrusted to ASI Lal Chand, who made further investigation. After receipt of the chemical examiner's report, challan was presented in the Court.

(3.) The prosecution in order to prove its case has examined as many as 10 witnesses. Statement of the accused was recorded under Sec. 313 Cr.P.C, wherein he has denied the prosecution case and claimed innocence. No defence was led by the accused.