OM PARKASH Vs. STATE OF H.P.

JUDGEMENT

(1.) APPELLANT is aggrieved by the judgment of the trial Court whereby he has been convicted of an offence under Section 20(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of two years.

(2.) ALLEGATIONS on which the appellant was charged and tried On 1st November, 2002, PW-12 ASI Ravi Kumar are as follows. accompanied by several police officials, including Constable Rajesh Kumar (PW-1), Constable Majid Mohammed (PW-2) and HC Krishan Lal (PW-6), had organised a Naka at Zero Point Goli on Chamba- Dalhousie Road. Around 10.30 p.m., a Maruti Van reached the site of Naka. It was got stopped. It was being driven by PW-10 Ashok Kumar. Prakash Chand (PW-9) was also present in that van. When the documents of the vehicle were being checked, the appellant was seen coming from the side of village Chauhra. He was carrying a bag on his shoulder. On seeing the police, he became shaky and turned back. He tried to run away, but was apprehended by ASI Ravi Kumar (PW- 12). From the conduct of the appellant ASI Ravi Kumar suspected that appellant must be carrying some narcotic drug and psychotropic substance in his bag. So, he informed him, in writing, as also orally, that it was intended to search his person and in case he so desired search could be arranged in presence of a Magistrate or a Gazetted Officer. Appellant consented to the search of his person by the ASI on the spot. Thereafter, the bag, which the appellant had with him, was searched, in the presence of PW-9 Prakash Chand and PW-10 Ashok Kumar. It was found to contain two packets wrapped in a bed-sheet. Each of the two packets contained Charas, which, on weighment, was found to be 4 kgs. Two samples, each weighing 25 grams, were separated. Samples and the bulk Charas alongwith the bag and the bed-sheet were made into three separate parcels and the parcels were sealed. Search and seizure memo was prepared. A written report of search and seizure was also prepared. It was addressed to the SHO for formally registering the case against the appellant, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. PW-2 Majid Mohammed was deputed to carry the said report, which is Ex. PW-2/A, to Police Station, Dalhousie, for the registration of the case. Soon after the registration of the case, the SHO, Police Station Dalhousie, Inspector Khub Ram (PW-13) went to the spot. He conducted further investigation of the case. Case property, i.e., three sealed parcels, containing the bulk Charas and the two samples, were produced before him by PW-12 ASI Ravi Kumar. Those three parcels were resealed by PW-13 Inspector Khub Ram with his own seal. All the three parcels were then deposited with PW-7 Subhash Chand, who was posted as Moharrar Head Constable during those days. One of the two samples was sent by this witness to chemical laboratory through Constable Kamal Kishore (PW-14) alongwith NCRB form, specimen impressions of the seal and copy of the search and seizure memo, vide Road Certificate No. 136 of 2002. The Chemical Examiner, per report Ex. PA, reported that the sample had 26.45 per cent resin and opined that the stuff contained contents of Charas.

(3.) HOWEVER , PW-1 Constable Rajesh Kumar, PW-2 Constable Majid Mohammed, PW-6 HC Kishori Lal and PW-12 ASI Ravi Kumar stated with one voice that the appellant appeared from the side of village Chouhra carrying a bag on his shoulder and that when, on seeing the police, he tried to turn he was overpowered and thereafter option was given to him for the search of his person in the presence of a Magistrate or Gazetted Officer, but he expressed the desire to be searched on the spot and thereafter his bag was searched and two packets, each containing 2 kgs. Charas, wrapped in a bed- sheet were recovered from his bag. The Police produced in the Court the Charas, Ex. P-5, the bag Ex. P-3 and bed-sheet Ex. P-4 during the course of the trial.