STATE OF HIMACHAL PRADESH Vs. KRISHNA

JUDGEMENT

(1.) Challenge herein is to the judgment dated 2.3.2010, passed by learned Special Judge, Mandi, Division at Mandi, H.P. in Sessions Trial No. 5 of 2008, whereby both the accused respondents (hereinafter referred to as the accused) were acquitted of the charge under Sections 18 & 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act' in short), framed against each of them. Accused Mahender Pal Singh was acquitted of the charge framed under Sec. 181 of the M.V. Act, also. Accused Mahender Pal Singh has expired during the pendency of this appeal. The appeal as such stands abated against the said accused.

(2.) The learned trial Court on the basis of the evidence available on record while discarding the plea raised in defence by the accused that Sec. 50 of the NDPS Act has not been complied with has concluded that in view of recovery of charas from the bag being carried by accused Krishna, the compliance of Sec. 50 of the Act was not required to be made. However, on taking into consideration the contradictions, inconsistencies and improvements in the prosecution evidence, both the accused were given benefit of doubt. In the opinion of learned trial Judge, the recovery of charas weighing 800 grams and opium weighing 150 grams from physical and conscious possession of accused Krishna is not proved beyond all reasonable doubt. The discrepancies qua time of preparation of rukka Ext. PW-4/A, the time when FIR Ext. PW-9/A/1 was registered and the prosecution case that parcels containing recovered charas and opium and sample parcels when produced by the I.O. before PW-4 Amar Nath MHC, Police Station were already sealed with seals "A " & "C " whereas as per the testimony of PW-4 MHC Amar Nath, seal "C " was used by him for resealing the parcels when produced before him, were also taken into consideration by learned trial Court. The cuttings in the date (7 adjusted to 8 by way of overwriting) on reseal memo Ext. PW- 4/C also weighed with learned trial Judge while acquitting both the accused. The prosecution case that the search of lady accused Krishna was conducted by a lady Constable is also not proved on record. Learned trial Judge has also noted that the independent witnesses PW-1 Sher Singh and PW-8 Roshan Lal associated by the I.O. PW-9 Ami Chand have also not supported the prosecution case. The findings that there is no mention about the preparation of NCB form in rukka Ext. PW-4/A are, however, without any substance as reference thereto is very much there in this document. The another ground that as per the report of Chemical Examiner Ext. PW-9/F, the resin contents in the sample of charas being 20.950 grams and in that of opium 15.488 grams, the weight of recovered charas was only 167.600 grams whereas that of opium 23.232 grams and as such even if the same is held to be recovered from accused Krishna, in that event also, it was a case of recovery of small quantity, however, is not available to the accused because a Larger Bench of this Court in State of Himachal Pradesh Vs. Mahboob Khan has held that the entire bulk is to be treated as charas unless and until it is proved that some foreign material was found to be mixed therein. As per further ratio of this judgment, the other part of cannabis plaint i.e. leaves, branches and stem etc. if mixed in the recovered mass is also charas.

(3.) It is, in the above backdrop, the fate of this appeal has to be decided or before that it is desirable to take note of the facts in a nut shell.