JOGA SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Accused Joga Singh, in a case registered under Section 20 -61 -85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act' in short) vide FIR No. 11/2012 in Police Station, State CID, Bharari (Shimla) aggrieved by his conviction and sentence by learned Sessions Judge, Shimla vide judgment dated 29.10.2012, is in appeal before this Court.

(2.) The complaint is that learned trial Court has recorded the findings of conviction against the accused on surmises and conjectures. The contraband allegedly charas, if was tied by him with transparent tape on his both legs, it was necessarily required for the Investigating Officer to have conducted his search either in presence of a Gazetted officer or Magistrate. He never opted for being searched by the police. The consent memo Ext. PW -1/B is stated to be false. There is no compliance of the provisions contained under Section 50 of the Act. There being no evidence as to how much was the quantity of charas tied by him in his each leg, no findings of conviction could have been recorded. The search was conducted at 3.30 p.m. in broad day light and that too on a national highway, therefore, non -joining of independent witnesses has rendered the entire prosecution story highly improbable. The material contradictions in the statements of the official witnesses have been erroneously ignored and brushed aside. The judgment has, therefore, been sought to be quashed and set aside.

(3.) In a nut -shell, the prosecution case as disclosed from the record shortly stated is that PW -6 Sub Inspector Krishan Chand was posted as Investigating Officer in State CID Police Station, Bharari, Shimla in the year 2012. On 16.05.2012, around 11.30 p.m. he along with Head Constable Pradeep Kumar (PW -1) and Constable Joginder Singh (PW -2), proceeded towards Tara Devi and Shoghi side for patrolling and in connection with detection of crimes. Rapat Ext. PW -1/A to this effect was entered in the rojnamcha. Around 3.30 p.m. when the police party reached at a place one kilometer ahead of bifurcation of road to P.W.D rest house Tara Devi, one person walking ahead of them was spotted. PW -6 asked him to stop. On inquiry, the said person has disclosed his name Joga Singh. Also that he was going on foot from Tara Devi to Shoghi Side. On asking as to why he was going to Shoghi walking on foot and that too at an isolated place, he failed to answer satisfactorily and rather became nervous. He tried to flee away from the spot, however, apprehended by the police. On further inquiry, he disclosed his parentage and also the place of his residence at Patiala in Punjab. PW -6 suspected that the accused is in possession of some narcotic substance or drug. The efforts were made to try independent witnesses, however, the place being isolated, no person could be associated as independent witness. PW -6 even tried to stop few vehicles, but of no avail because the persons on wheel of such vehicles did not stop the same. Therefore, the Investigating Officer has associated Head Constable Pradeep Kumar (PW -1) and HHG Narinder Kumar (PW -2) as witnesses and proceeded further in the matter. The accused was informed orally as well as in writing about his right of being searched either in presence of a Gazetted officer or a Magistrate. The memo Ext. PW -1/B was prepared in this regard. The accused, however, agreed for his search by the police itself. Therefore, after obtaining the consent of the accused, PW -6 offered his own search to the accused first vide memo Ext. PW -1/C. Nothing incriminating was found during the search of PW -6 conducted by the accused. Thereafter, the personal search of the accused was conducted. He was found to have wrapped some substance brown in colour with plastic tape on his both legs below knee level. The Investigating Officer got the plastic tape cut and noticed that two transparent plastic poly bags containing black coloured substance in the shape of balls and sticks were tied with both legs. On checking and smelling the same and on his personal experience, the Investigating Officer found the same to be charas. When weighed with electronic scale, the Investigating Officer having with him, it was found to be 1.300grams. The recovered charas along with plastic bag and tape was packed in a parcel of cloth and it was sealed with 10 seals of impression 'K'. Samples of seal Ext. PW -1/D were drawn and the seal after its use handed over to Head Constable Pradeep Kumar. The recovered charas was taken into possession vide memo Ext. PW -1/E. All the documents were prepared in the presence of witnesses and also the accused, which were also signed by them. The Investigating Officer thereafter filled in the NCB forms Ext. PW -4/D in triplicate. He prepared the rukka Ext. PW - 6/A and it was forwarded through Constable Joginder Singh along with parcels containing charas, seizure memo, NCB forms and sample of seal to Police Station State CID Bharari for registration of a case. On the basis of rukka, FIR No. 11/12, Ext. PW -4/A was registered by PW -