STATE OF HIMACHAL PRADESH Vs. BHAGI RAM

JUDGEMENT

(1.) By way of this appeal, the State has challenged the judgment passed by the Court of learned Special Judge, Kullu in Sessions Trial No. 26 of 2013 (276 of 2013) dated 13.08.2014, vide which learned trial Court has acquitted the accused for commission of offence punishable under Sec. 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

(2.) The case of the prosecution was that on 15.03.2013, a police party headed by SI Lal Singh left Police Station, Bhunter on patrol duty towards Chharor Nalah in an official vehicle. At around 9:00 p.m, when this police party was present at a place known as Jachhni where they had laid Naka, accused was seen by the police party coming towards Bhunter side. He was carrying a black colour bag on his right shoulder. When accused saw the police party and police vehicle, he turned back and tried to run away. On suspicion, he was intercepted and his name and address etc. were inquired. Investigating Officer suspected that the accused was possessing some contraband in the bag. In these circumstances, accused was taken to the back seat of the police vehicle, where his bag was searched. Before this, Investigating Officer gave his personal search to the accused. Further as per the prosecution, during the search of the bag carried by the accused, one another blue colour bag was recovered from the same and from inside this blue coloured bag, brown colour charas was recovered, part of which was wrapped with polythene and part of which was kept without wrapping. Further as per the prosecution, charas was weighed in an electronic scale by the Investigating Officer, which was found to be weighing 3 Kgs. The same was weighed in the presence of witnesses PW-6 ASI Ram Nath and ASI Ram Lal (not examined), who were associated as witnesses by the Investigating Officer. It was further the case of the prosecution that thereafter charas along with polythene wrappers was put in blue colour bag, which bag was thereafter put in black colour bag and the same were sealed in a cloth parcel with eight seals of impression 'T' by the Investigating Officer. NCB form was filled in triplicate. Parcel was taken into possession vide recovery memo. Ruqua was prepared and sent to Police Station through ASI Ram Nath, on the basis of which FIR was registered. Further as per the prosecution, spot map was prepared by the Investigating Officer, who also recorded the statements of witnesses. After completing codal formalities, the accused was arrested and was taken to the Police Station along with the case property. Investigating Officer deposited the case property with MHC and on 17.03.2013, MHC Tara Chand sent the case property along with relevant documents to FSL, Junga through HC Janesh Kumar. FSL report was received, which proved that the substance recovered from the accused was contraband. After completion of investigation, challan was filed in the Court and as a prima facie case was found against the accused, accordingly he was charged for commission of offence punishable under Sec. 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, to which he pleaded not guilty and claimed trial.

(3.) On the basis of material produced on record by the prosecution both ocular as well as documentary, learned trial Court held that the prosecution had failed to prove the alleged liability of the accused and had failed to bring home the guilt of the accused for commission of offence punishable under Sec. 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. While arriving at the said conclusion, it was held by the learned trial Court that besides there being material contradictions in the statements of prosecution witnesses, the statements made by them were also doubtful and it was not safe to hold accused liable on doubtful statements of the prosecution witnesses. It was further held by the learned trial Court that it had come in the testimonies of PW- 6 and PW-7 that there were shops at Jachhni and residential houses at Chharo Nalah, which places were nearby the spot where the accused was apprehended and PW-6 had also stated that vehicles were also plying on the road. It was held by the learned trial Court that this established that independent witnesses were available on the spot, but the Investigating Officer did not make any effort to associate any of the independent witnesses. It was held by the learned trial Court that since statements of official witnesses did not inspire confidence, as such, their corroboration through independent witnesses was required. It was also held by the learned trial Court that PW-6 ASI Ram Nath, who was present at the spot as per the prosecution had categorically stated that before the search of the bag being carried by the accused was conducted, his personal search was also carried out by the Investigating Officer. Learned trial Court held that if that was so, then it was obligatory for the Investigating Officer to have had complied with the mandatory provisions of Sec. 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 by apprising the accused of his legal right to be searched either before a Magistrate or a Gazetted officer. It was further held by the learned trial Court that the remaining witnesses examined by the prosecution were not sufficient to prove the alleged liability of the accused and on these bases, learned trial Court acquitted the accused.