ASHWANI KUMAR Vs. STATE OF H.P.

JUDGEMENT

(1.) PRESENT appeal is directed against the judgment of trial Court whereby the appellant has been convicted of an offence under Section 20 (C) of the Narcotic Drugs & Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for ten years and to pay fine of rupees one lakh; in default of payment of fine to undergo simple imprisonment for a further period of six months.

(2.) PROSECUTION case, as per record, is like this. On 6.11.2002 around 10.40 a.m. when PW-4 Lal Chand, HC was present in Pandoh Bazar on the National Highway, a van bearing registration No. HP-01- 0065 came from Kullu side. It was being driven by the appellant. There was no other person present in the car. PW-4 Lal Chand signalled for stopping the car. It was not stopped. Instead, the speed was accelerated. HC Lal Chand (PW-4) then informed the S.H.O. Police Station, Sadar Mandi about the above said incident telephonically. The information was entered in the Rojnamcha vide entry, copy Ext. PW-9/A. A copy of it was sent to the Superintendent of Police, Mandi, in compliance with the provisions of sub-section (1) of Section 42 of the Narcotic Drugs & Psychotropic Substances Act. S.H.O. Shri K.D. Sharma (PW-13), accompanied by S.H.O. Shri Mangat Ram (PW-14) and some other police officials, proceeded towards Pandoh. He laid Nakka at a place called 'Bindravani' near Mandi town. Soon Maruti van bearing registration No. HP-01-0065 reached there. It was got stopped at the Nakka. Tek Singh, Up-Pardhan (PW-2) and Shyam Singh, Forest Guard at Bindravani Forest Check Post (PW-1) were associated as independent local witnesses. In the meanwhile, PW-4 Lal Chand, HC of Police Post Pandoh, also reached the spot chasing the van. Only the appellant was present in the van in driver's seat. The van was checked. Nine packets of 'Charas', concealed in the rear bumper were recovered. Total weight of the stuff was found to be 2 Kg. 250 grams. Two samples, each weighing 25 grams were separated from the recovered stuff. The sample packets and the bulk 'Charas' were made up into separate parcels and the parcels were sealed with a seal that produced the impression of English letter 'A'. Search and seizure memo was prepared. Written report of the search and seizure was also prepared and sent to the Police Station for formal registration of the case. The case property was deposited with MHC PW-6 Baldev Singh on 6.11.2002 itself who sent one of the two samples to the Chemical Examiner through Constable Mohan Lal (PW-7). The chemical Examiner reported that the stuff contained resin to the extent of 31.25%.

(3.) LEARNED counsel representing the appellant submitted that neither of the two alleged independent witnesses supported the prosecution version and that the version narrated by the police officials, including SHO Shri K.D. Sharma (PW-13), was contradictory and did not inspire confidence. He also submitted that there was delay in the dispatch of the sample to the laboratory, which had not been explained. A further contention raised by him was that though the scene was got photographed, as per testimony of the police officials, but neither the independent witnesses nor the accused were there in those photographs, which suggested that no independent witness had been associated nor was the appellant there on the spot, when the alleged recovery was effected. His further submission was that even the number of the van does not appear in the photographs, which suggested the possibility of the 'Charas' having been recovered from some other van cannot be ruled out. Link evidence was also alleged to be missing. Further it was submitted that there was no evidence indicating as to who was the owner of the van.