STATE OF HIMACHAL PRADESH Vs. CHALMAN

JUDGEMENT

(1.) By way of this appeal, appellant-State has challenged the judgment passed by the Court of learned Special Judge-II, (Additional Sessions Judge), Kullu, in Sessions Trial No. 66-of 2014 (2013), dated 03.01.2015, vide which, learned Trial Court acquitted the present respondent (hereinafter referred to as 'accused') for commission of offence punishable under Sec. 20 of the Narcotic Drugs and Psychotropic Substances, Act (in short 'NDPS Act').

(2.) The case of the prosecution in brief was that on 08.07.2013, at around 5:00 a.m., when a police party headed by SI Sher Singh consisting of Head Constable Brij Bhushan, Constable Bhim Sen and Constable Ashok Kumar was on nakabandi duty at Kainchi Mour near Chharod Nala, District Kullu, accused was seen coming from Bhuntar side on foot and as soon as, the accused saw the police party, he turned back and tried to get away. SI Sher Singh asked the accused to stop who threw the Pithu bag (rucksack) carried by him, however, he was nabbed by SI Sher Singh with the help of other police officials. On enquiry, accused disclosed his name as Chalman, resident of Nepal and when he was asked as to what were the contents of 'Pithu' (rucksack) bag carried by him, he got perplexed and could not gave a satisfactory reply. On this SI Sher Singh got suspicious that accused might be carrying some contraband and as the place was secluded and isolated, he opened the bag of accused in the presence of Head Constable Brij Bhushan and Constable Bhim Sen and from inside the said bag, besides other things, one red coloured carry bag was found, from which five pan caked shaped black coloured substance were recovered and on checking, same were found to be cannabis/charas. The recovered charas was weighed with the help of an electronic scale and it was found to be 1 Kg. 140 grams and thereafter charas was again put inside the same red coloured carry bag and said carry bag was sealed in a cloth parcel with three seals having impression 'C'. The 'pithu' bag along with other articles was also put in a separate parcel and both the parcels were taken into possession vide memo Ext. PW5/B which was signed by the witnesses as well as the accused. Thereafter, NCB forms were filled by the Investigator. Sample of seal was taken on a separate piece of cloth as well as on NCB form Ext. PW3/B and the seal after use was handed over to Constable Bhim Sen. Ruka Ext. PW5/C was prepared by the I.O. and was sent through Constable Bhim Sen to the Police Station, Kullu for the registration of FIR, on which FIR Ext. PW6/B was registered. Accused was arrested and after his arrival at Police Station, I.O. handed over the case property along with sample seal, NCB-1 form and relevant documents to ASI/SHO Bala Ram who resealed the case property with three seals of seal impression 'C'. The case property was deposited in the Malkhana and subsequently it was sent for chemical analysis to State Forensic Science Laboratory, Junga. Report of the expert, established the sample as the extract of cannabis and sample of charas. During the course of investigation, the investigating officer prepared site plan, recorded the statements of witnesses under Sec. 161 of the Code of Criminal Procedure (for short 'Cr.P.C'). After the completion of investigation, challan was filed in the Court and as a primafacie case was found against the accused, accordingly, he was charged for commission of offence punishable under Sec. 20 of the NDPS Act, to which he pleaded not guilty and claimed trial.

(3.) Learned trial Court on the basis of material both ocular as well as documentary produced on record by the prosecution acquitted the accused by holding that it could not be said that the prosecution had succeeded in discharging the burden of proof and in fact had failed to prove that on the relevant date, time and place, the accused was found in exclusive and conscious possession of 1 Kg. and 140 grams of charas unauthorisedly as the entire case of the prosecution was shrouded under the shadow of doubt and benefit deserved to be given to the accused. While arriving at the said conclusion, learned Trial Court found that there was no cogent and satisfactory explanation given by the prosecution as to why no independent witness was associated with the search and seizure of the contraband. Learned trial Court took note of the fact that there were discrepancies and contradictions in the statement of prosecution witnesses as PW5 Constable Bhim Sen stated that the police party reached the spot at 4:30 a.m. whereas as per PW8 Sub Inspector Sher Singh, police party reached the spot at 5:15 a.m. Learned trial Court also took note of the fact that whereas as per PW5 Constable Bhim Sen after the police party reached the spot at 4:30 a.m. no vehicle was checked till 5:00 a.m. as no vehicle passed through that particular area, whereas as per PW8 SI Sher Singh the accused was immediately noticed by them after reaching the spot at around 5:15 a.m. Learned Trial Court also took note of the fact that whereas PW5 Bhim Sen stated that the documents were prepared by the Investigator on the road side whereas PW8 SI Sher Singh stated that he had prepared said documents while sitting in the vehicle. Learned trial Court also observed that it had come in the statement of PW5 Constable Bhim Sen that abadi was situated near Chharod Nala but no person was sent to call local witnesses from the said abadi, whereas PW8 SI Sher Singh in addition to having admitted that Chharod Nala was a populated place admitted that no person was sent to call witnesses as there was no abadi situated within a distance of two kilometers from the spot. It was on these bases that the learned trial Court disbelieved the case of the prosecution and acquitted the accused of commission of offence punishable under Sec. 20 of the NDPS Act.