MARVELOUS OSAZA Vs. STATE OF H.P.

JUDGEMENT

(1.) Since, both these appeals arise from a common judgment rendered on 17/09/2014 -18/09/2014 in Session trial No. 151 of 2013 (309 of 13) by the learned Special Judge, Kullu, hence, are proposed to be decided by a common judgment.

(2.) Criminal Appeal No. 440 of 2014 stands instituted by the State of H.P. for enhancement of sentence while its standing aggrieved by the judgment of the learned trial Court, whereby on its convicting the accused qua charge framed against him under Sec. 21 of the NDPS Act sentenced him to undergo rigorous imprisonment for five years and to pay fine of Rs. 50,000/ - and in default of payment of fine he stood sentenced to undergo rigorous imprisonment for one year. The sentence of imprisonment imposed upon the accused/convict Marvelous Osaze is concerted by the State of Himachal Pradesh to be disproportionate vis -a -vis the gravity of the offence for which he stood convicted hence a prayer is made in the appeal aforesaid instituted by the State of Himachal Pradesh of the sentence aforesaid on its modification being enhanced. On the other hand, Criminal appeal No. 358 of 2014 stands instituted before this Court at the instance of the accused, who stands aggrieved by the findings of conviction recorded against him for his committing an offence punishable under Sec. 21 of the NDPS Act.

(3.) Briefly stated the facts of the case are that on 1.8.2013, the police party headed by SI Shiv Singh had left police Post City, Akhara Bazar, Kullu for routine patrolling and detection of crimes and at about 11:45 a.m. they were present at bus stand Sarwari Kullu where they noticed accused Marvelous roaming, who on seeing the police party tried to run away. This act on part of accused raised suspicion in the mind of police, so he was intercepted and his name and address etc. was inquired. I.O. got suspicious that the accused might be in possession of some contraband, so I.O. apprised the accused about his legal right to be searched either before a Gazetted Officer or a Magistrate. The accused Marvelous opted and gave his consent to be searched before a Gazetted Officer, so I.O. telephonically informed the Dy. S.P. Sanjay Kumar about this fact. Upon this Dy. S.P. Sanjay Kumar reached the bus stand. I.O. associated PW 1 Deepak Sharma Adda Incharge of HRTC bus stand, Kullu and one tea vendor Vijay Kumar as witnesses. Thereafter the accused was taken to Police Assistance Room located at bus stand, Sarwari Kullu where I.O. first gave his personal search to the accused in presence of aforesaid witnesses and Dy. S.P. Sanjay Sharma and nothing was recovered from his possession. Thereafter search of bag of accused which he was carrying on his left shoulder was carried in presence of aforesaid witnesses and Dy. S.P. Sanjay Kumar. During search of bag, one jacket, one camera, one pair of shoes, one charger were recovered. And from the right foot shoe kept in side the bag, one sock was removed in which accused Marvelous had kept one plastic envelope. On opening of said plastic envelope, four small packets containing white colour powder were recovered along with another packet. The recovered white coloured powder was tested by the I.O. with the help of detection kit and it was found to be cocaine. It was weighed and found to be 34 grams, 10 grams, 9 grams and 12 grams (total 65 grams) from all the four packets. Thereafter all the four packets containing cocaine were marked as mark A, B, C and D and were put in the same plastic envelope and the said plastic envelope was sealed in one cloth parcel with five seals of letter -P. The other articles along with red colour bag recovered from the accused were put in another parcel and sealed with six seals of letter -P. I.O. also drew sample seal of P and also filled in NCB forms in triplicate. Thereafter, both the parcels were taken into possession and in this regard a seizure memo was prepared. A ruqa was prepared by the I.O. and sent to the police station through Const. Varun Kumar, upon which relevant FIR was registered. I.O. prepared spot map and recorded statements of witnesses. Then accused Marvelous Osaze was arrested. It is further case of the prosecution that the police party on completion of proceedings on the spot came to the police station, where I.O. produced the sealed parcels of case property along with relevant documents before SHO Raj Kumar who resealed the same with seal -R. He also filled in relevant columns of NCB form and drew sample seal of R. Thereafter he deposited the same in his Register. On 3.8.2013, MHC had sent the sealed parcel of cocaine along with sample seals, NCB form and other relevant documents to FSL Junga, through Const. Chet Ram and FSL report was received which confirmed the contents of exhibit to be sample of cocaine. On 2.8.2013, I.O. prepared special report and submitted the same to Addl. S.P. Kullu Nihal Chand.