STATE OF HIMACHAL PRADESH Vs. VIRENDER SINGH

JUDGEMENT

(1.) The State of Himachal Pradesh aggrieved by the judgment dated 20.5.2011 passed by learned Special Judge (II), Kinnaur at Rampur has preferred the present appeal with a prayer that the impugned judgment be quashed and the respondent (hereinafter referred as the 'accused') be convicted of the charge under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred in short as "NDPS Act').

(2.) The prosecution case in a nut shell is that on 12.1.2009 PW9 SI Dulo Ram accompanied by PW2 Moti Ram and Constable Chand Misra of Police Station, Nirmand left towards Bagipul, Darar Nallah and Urtu side in official vehicle No. HP-34-0085 being driven by Constable-driver Tikkam Singh PW1 for patrolling and detection of cases under the Excise and NDPS Act. A rapat was entered in the Rojnamcha in this regard, copy whereof is Ext.PW3/A. Around 1:00 P.M. the police party reached at Parjanda nallah. The vehicle was parked there. PW9 accompanied by the other police officials then proceeded towards Darar nallah and village Kalah on foot. When the police party reached at Darar nallah, the accused was spotted coming down through forest path. He was holding a bag on his right shoulder. On seeing the police party, he became nervous. On suspicion, PW9 over powered him with the help of other police officials. It was an isolated place. No one, therefore, could be associated as independent witness. The I.O. PW9 has, therefore, associated Constable Chand Misra and PW2 Constable Moti Ram as independent witnesses. On inquiry, the accused disclosed his name as Virender Singh and father's name Hawa Singh whereas the address as village and post office Budsham, Tehsil Samalkha, District Panipat (Haryana). Since the I.O. suspected that the accused must be carrying some narcotic substance or drugs with him or in the bag he was holding on his shoulder, an option that he has a legal right of being searched in the presence of a Magistrate or a Gazetted Officer was given to him orally as well as in writing vide memo Ext.PW1/A. The accused as per the endorsement made on Ext.PW1/A in his own hand has opted for being searched by the police i.e. PW9 himself. Consequently, the PW9 has first offered his personal search to the accused which he conducted vide memo Ext.PW1/B.

(3.) Pw-9 has thereafter conducted the search of the black coloured bag having written 'PUMA' thereon with metal and found one polythene bag half black and half red in colour having 'Lintaaz Premium Shirts' printed thereon. The said polythene bag when searched further was found containing black coloured substance in the shape of rounds which on checking was found charas. Immediately thereafter, PW9 has informed the then Deputy Superintendent of Police, Anni on his Cell No. 93180-11419 from his personal Cell No. 94182-97457 regarding the recovery of charas from the accused. The information so given to the DSP was reduced into writing. The recovered charas was taken out from the bag and it was weighed with the weights and scale the I.O. PW9 having in his kit. The recovered charas when weighed was found 3 Kgs 500 grams. Out of the same, 25-25 grams was separated for the purpose of samples. The remaining bulk 3Kgs 450 grams was sealed in a cloth parcel Ext.P3 with three seals of impression 'T'. The sample parcels Ext.P1 and Ext.P2 were also sealed separately with 3-3 impressions of the same seal of impression 'T'. Ext.PW1/C was separately obtained on a piece of cloth. It is thereafter NCB-I form Ext.PW9/A was filled-in in triplicate by PW9. The charas recovered from the accused was thereafter taken by him in possession vide seizure memo Ext.PW1/D in the presence of PW1 Tikkam Singh and Constable Chand Misra. It is thereafter Rukka Ext.PW2/A was reduced into writing and sent to police Station Nirmand through PW2 Constable Moti Ram. The I.O. has thereafter prepared the spot map Ext.PW9/B. On the basis of Rukka Ext.PW2/A, FIR Ext.PW2/B was registered in Police Station, Nirmand by PW7 MHC Lal Chand. PW7 has handed over the case file to PW2 Constable Moti Ram for being taken to the I.O. PW9 on the spot. The accused was apprised about the grounds of arrest vide memo Ext.PW1/E. He was arrested and intimation of his arrest given to his father Hawa Singh over Cell Phone No. 09050861977 vide memo Ext.PW1/F. The I.O. has recorded the statements of witnesses under Section 161 Cr.P.C. The case file was handed over to him by PW2 Constable Moti Ram at Nirmand bus stand. The statement of Constable Moti Ram was recorded at bus stand. The I.O. PW9 arrived at the Police Station along with the accused and case property at 8:15 P.M. He made entries of his arrival in the police station vide rapat No. 28, Ext.PW3/B. PW9 has deposited the case property along with NCB-I form in triplicate and specimen of seal with PW7 MHC Lal Chand in the Malkhana of Police Station. PW7 has made entries Ext.PW7/A in this regard in the Malkhana register. The I.O. prepared the special report Ext.PW5/B and it was sent to Sub Divisional Police Officer, Anni through PW6 HHC Shyam Lal. PW6 has delivered the same on the same day to PW5 ASI Sohan Lal, the then Reader to SDPO Anni. PW5 has entered the special report in the prescribed register vide entries Ext.PW5/A. The special report was produced before the then DSP Anni Bhajan Singh Negi who on perusal thereof returned the same to PW5 for being retained in the record. One of the sample parcels was sent for analysis to Forensic Science Laboratory, Junga, District Shimla on 14.1.2009 vide RC Ext.PW7/B along with NCB-I form in triplicate and a docket through Constable Nanak Chand. Subsequently, the entire bulk was also sent to Forensic Science Laboratory, Junga vide RC No. 37/2010 Ext.PW7/C through Constable Shyam Lal. It is so stated by the MHC PW7 while in the witness box. Later on, PW8 Constable Shyam Dass was deputed to Forensic Science Laboratory, Junga to collect the case property and also the report of Chemical Examiner. PW8 has brought the case property and also the Chemical Examiner's report Ext.PW8/A and handed over the same to PW7 for being retained in the Malkhana.