STATE OF HIMACHAL PRADESH Vs. RAJIV KUMAR

JUDGEMENT

(1.) By way of present appeal, appellant -State has assailed the judgment of acquittal dated 7th July, 2008 passed by learned Special Judge, Una, District Una in Sessions case No. 19 of 2007, whereby the learned Special Judge has acquitted the accused -respondent of the charges framed against him by giving him benefit of doubt.

(2.) Briefly stated the facts necessary for adjudication in the case are that SI Diwan Chand while interrogating one Sanjiv Kumar in Police Station, Bangana, in connection with a case, got the information that the respondent (hereinafter referred to as 'accused') namely, Rajiv Kumar @ Vicky would be coming at night to Una side from Hamirpur for selling charas in his maruti car No. HP -22A -2685. As per prosecution story, after receiving aforesaid information, a letter as required under Sec. 42 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'ND & PS Act') was prepared and sent to Superintendent of Police, Una for information. On the basis of aforesaid information, FIR No. 57 of 2007 was registered under Sec. 20 of the ND & PS Act and the investigation was entrusted to PW -15 ASI Ram Ditta. Accordingly, ASI Ram Ditta alongwith HC Jagtar Singh, HC Sucha Singh, C. Updesh Kumar, C. Mohinder Singh and C. Sarjeevan Singh went to Bhalet for laying a naka, which was actually laid at around 12.00 in the midnight. As per prosecution story at that point of time they were also joined by independent witnesses namely Ranbir Singh and Sanjiv Kumar. On 25th June, 2007 approximately at about 4.45 A.M. one maruti Car bearing No. HP -22A -2685, which was being driven by accused, reached at the place of naka i.e. Bhalet and the same was intercepted by police at the place of naka. It is specific case of the prosecution that after being intercepted, accused was told that he is suspected to be carrying charas and as such he is required to be searched. As per story of prosecution he was asked to exercise option as envisaged under Sec. 50 of ND & PS Act, whether he wanted to get his search conducted before the police or in the presence of gazetted officer or a Magistrate. Accused opted himself to be searched before the gazetted officer. Prosecution story reveals that S.P. Una, deputed one Shri Devakar Sharma, Dy.S.P. (HQ), Una to the spot for carrying out the personal search in terms of Sec. 50 of the ND & PS Act. It is also case of the prosecution that in the presence of Dy.S.P. and independent witnesses police party gave their personal search to the accused and thereafter conducted the search of the person of the accused from where they could recover Rs. 16,000/ - from his pocket. Further, on the search of Maruti car bearing No. HP -22A -2685, 1 kg. of charas was found wrapped in a polythene bag. As per the version of prosecution, out of recovered charas, 20 gms. of charas was separated as sample which was made into a sealed parcel and thereafter bulk charas was also sealed in a parcel. NCB form was also filled in and the Investigating Officer took into possession the recovered charas as well as Maruti car. PW -15 ASI Ram Ditta also prepared site plan of the spot of occurrence. Thereafter, accused was informed that he is required to be arrested and he was informed with regard to grounds of his arrest and on his request maternal -grand -father of accused was informed about his arrest. Further prosecution stated that thereafter again search of person of the accused was conducted, whereby one key and one mobile phone were recovered from the person of the accused. On completion of formalities at the spot, Investigator produced the recovered charas before the SHO, Police Station, Bangana with two sample parcels, parcel containing currency notes, one mobile phone and NCB form alongwith the accused. It is also case of the prosecution that after coming from village Bhalet i.e. the place where the naka was laid, ASI Ram Ditta sent special report to the S.P. Una and SI Diwan Chand resealed the case property with seal impression 'La' and filled in the columns of NCB form and also took the specimen impression of seal 'La' on a piece of cloth and handed over the case property alongwith NCB form and seal impression to MHC Ravi Dutt of Police Station, Bangana on the same day. Here, at this juncture, prosecution story further reveals that after completing the aforesaid sequence of events as has been narrated above, PW -15 ASI Ram Ditta again interrogated the accused in the presence of PW -4 Bhutto and PW -9 Sucha Singh while he was in custody, where the accused disclosed the police that he had kept charas and opium in his house underneath the Charpai in polythene envelops and he can get the same recovered. According to prosecution story, accused led the police party to his house in village Chokkar and he opened the lock of the room with the key which was recovered from the accused on his personal search. It is also story of the prosecution that he got recovered one polythene bag and one plastic bag which were lying under the cot in the presence of PWs Bhutto and Sucha Singh. On opening the polythene bag charas weighing 1 Kg and 440 grams and from the plastic bag opium weighing 1 Kg and 840 grams were recovered by the police. The police officials thereafter drew two samples weighing 20 grams each respectively from the recovered charas and opium were drawn and they were separately sealed with seal having impression 'Ka'. Thereafter, the Investigating Officer filled in the NCB forms in triplicate for both the recoveries. ASI Ram Ditta also took impression of the seal on the NCB form before handing over the seal to Bhutto. As per story of the prosecution, thereafter, the Investigator prepared seizer memo in respect of the recovered charas, opium and sample parcels in presence of witnesses. Prosecution story further reveals that thereafter, ASI Ram Ditta produced both the bulk parcels, sample parcels, sample seal impressions 'Ka' and NCB forms with SHO, Police Station, Bangana. Subsequently, on 4.7.2007, one Shri Ramesh Chand son of Megh Singh produced Registration Certificate, Insurance and Driving Licence pertaining to the vehicle which was taken into possession by the police. It is also the case of the prosecution that ASI Ram Ditta also produced before SHO the sample impression alongwith seal of the case property which in -turn was released by SI Diwan Chand and he took specimen impressions of seal 'La' on six pieces of cloth and deposited all the items with the MHC Ravi Dutt. During investigation, the police associated Smt. PW Urmila Devi, Pradhan of the village and got a certificate with regard to residence of the accused. Thereafter, samples were sent to the Chemical Examiner for chemical analysis. After completion of the investigation police being satisfied that the case exists against accused under Sec. 18 and 20 of the ND & PS Act, prepared a charge sheet and presented the same before the Court on 4.10.2007. Copies of the challan were duly supplied to the accused in terms of Sec. 207 Cr.P.C.

(3.) The Court of learned Special Judge, after hearing the parties, framed charge against the accused for offences punishable under Ss. 18 and 20 of the ND & PS Act, for which he pleaded not guilty and claimed trial.