JAI BHAGWAN Vs. STATE OF H.P.

JUDGEMENT

(1.) APPELLANT is aggrieved by the judgement of the Special Court, whereby he has been convicted of an offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 30,000/-, and in default of payment of fine, to undergo imprisonment for a further period of three months.

(2.) PROSECUTION version, as per record, may be summed up thus. On 16.4.2005, around 8.40 a.m., when a police party headed by HC Bhagat Ram (PW 8) was present at Bajaura Check Post, bus No. HP-40-5998, which came from Manali side was signaled to stop. Checking of the bus and the passengers was done. The appellant, who was sitting on seat No. 14, had a bag lying in his lap. On checking, the bag was found to contain his pants, shirts, a sweater, besides a plastic bag containing charas shaped in tablets, sticks and chapaties. The charas was seized and weighed. It was found to be 500 grams. Two samples, each weighing 25 grams, were separated. The samples and the bulk charas were made up into three separate parcels, which were sealed with a seal that produced the impression of letter "X" of English alphabet. Search and seizure memo was prepared. A report was sent to the Police Station for registration of the case through one of the members of the party, namely PW 5 lady constable Prem Dassi. Driver and the conductor and the passengers of the bus refused to witness the search and the seizure. A special report was prepared and sent to Dy. S.P., Kullu, who is the immediate superior officer of PW 8 Head Constable Bhagat Ram. One of the samples was sent to the Chemical Laboratory for analysis. The Chemical Examiner reported that the sample had the contents of charas. On receipt of the report, challan was prepared and filed in the Special Court. The appellant was charged with the offence, under Section 20(B) of the Narcotic Drugs and Psychotropic Substances Act. He pleaded not guilty. Therefore, he was put on trial. On the conclusion of the trial, he was found guilty of possessing 500 grams charas and was therefore, convicted and sentenced, as aforesaid.

(3.) A perusal of the record, including the report Ex. PW 8/A, which was sent to the Police Station for the formal registration of the case shows that the conductor, the driver and the other passengers refused to witness the search of the passengers and their baggage. Now when the conductor and the driver and other passengers were not willing to witness the search of the passengers and their baggage, how could the conductor, who was made to witness the seizure of the charas, the taking of the samples and the making up of the parcels of the bulk charas and samples into three separate parcels and the sealing of those parcels and then to sign the seizure memo, be expected to support the prosecution version during the course of the trial. Therefore, the turning hostile of the conductor of the bus PW 6 Azad Kumar in no way affects the prosecution case.