STATE OF HIMACHAL PRADESH Vs. MATHURA DEVI

JUDGEMENT

(1.) State of Himachal Pradesh aggrieved by the judgment dated 29.8.2011, passed by learned Special Judge, (Fast Track Court) Kullu, Himachal Pradesh, in Sessions Trial No. 44 of 2010 whereby the respondent-accused (hereinafter referred to as the accused) has been acquitted of the charge under Sec. 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act' in short), has preferred this appeal for quashing the same on the grounds, inter alia, that the evidence as has come on record by way of the testimony of PW-1 HHC Uttam Singh and by that of the I.O. PW-6 HC Jamal Deen as well as lady Const. Veena Devi (PW-2) has not been appreciated in its right perspective. All of them have supported the prosecution case in one voice qua the manner in which the contraband, allegedly charas weighing 910 grams, was recovered from the backpack, the accused was holding in her right hand when nabbed by the Manikaran Police at Jai Nullah, while coming from village Katagla side. The same, however, has not been appreciated in its right perspective and to the contrary the findings acquitting the accused of the charge framed against her under Sec. 20 of the NDPS Act were based on hypothesis, conjectures and surmises. The non-joining of independent persons to witness the search and seizure has heavily weighed with trial Court irrespective of PW-1 HHC Uttam Singh and PW-2 LC Veena Devi have categorically stated that the place of recovery being isolated and secluded one, no one was available nearby for being associated as witness and the I.O. PW- 6 HC Jamal Deen had to associate the accompanying police officials PW-1 HHC Uttam Singh and HHC Hari Singh. PW-1 HHC Uttam Singh has proved the entire prosecution case. Learned trial Court, however, did not appreciate the same and proceeded to acquit the accused of the charge taking into consideration the contradictions which were minor in nature and bound to come in the statements of the witnesses with the passage of time. The impugned judgment, as such, has been sought to be quashed and set aside with further prayer that the accused be punished in accordance with law for the offence punishable under Sec. 20 of the NDPS Act.

(2.) Accused is resident of Village Nihri, PO Sarala, Sub Tehsil Sainj under Police Station Bhuntar, Distt. Kullu, H.P. On 20.2010, the I.O. PW-6 HC Jamal Deen accompanied by PW-1 HHC Uttam Singh and HHC Hari Singh of PP Manikaran under PS Sadar Kullu was on his way to Village Katagla from Jainagar side in connection with patrol duty on foot. Around 7:30 PM, they spotted the accused at Jai Nullah coming from Village Katagla side in moonlit night. On seeing the police, she started walking briskly and also got perplexed. Her conduct of such nature, has raised suspicion in the mind of the I.O. that she may be in possession of some narcotic drug or psychotropic substance. She, therefore, was asked to stop. Her antecedents were ascertained. She was holding one backpack (Ext. P-2) in her right hand. She was trying to throw the same away in valley side, however, the I.O. asked her to show the same to him. Being an isolated and secluded place and no one could be found available nearby for being associated as independent witness, PW-6 HC Jamal Deen had associated PW-1 HHC Uttam Singh and HHC Hari Singh as witnesses and in their presence, consent of the accused qua search was obtained vide memo Ext. PW-1/A. The I.O. offered his own search vide memo Ext. PW-1/B to the accused, however, nothing incriminating was available with him. The backpack Ext. P-2 had three parts (pockets). From the outer pocket, voter identity card Ext. P-3 whereas in the second pocket two rolls of khakhi coloured adhesive tape Ext. P-4 and from the 3rd pocket/bigger part thereof, one jacket Ext. P-5, ladies suit Ext. P-6, white coloured polythene envelope Ext. P-7, small polythene envelopes 18 in number Ext. P-8 were recovered. On opening of polythene envelope Ext. P-7, charas Ext. P-9 was recovered therefrom. The same was wrapped and found 910 grams in weight. The articles recovered from the backpack were kept in the same sequence in which the same were taken out of it. The backpack was, thereafter wrapped in a white coloured cloth which was sealed with 8 impressions of seal "R". NCB-1 form Ext. PW-5/B was filled in triplicate, sample of seal "R" Ext. PW- 1/C was obtained separately on a piece of cloth. The parcel containing the recovered charas was taken into possession vide seizure memo Ext. PW-1/D. A copy thereof was supplied to the accused free of costs. Since on the recovery of charas the accused was found to have committed an offence punishable under Sec. 20 of the NDPS Act, therefore, rukka Ext. PW-6/A was prepared and forwarded to PS Kullu through PW-1 HHC Uttam Singh for registration of case against her. On the basis of rukka, FIR Ext. PW-7/A was recorded. The spot map Ext. PW-6/B was prepared. The accused was interrogated and the statements of the witnesses recorded under Sec. 161 Crimial P.C. The accused was apprised about the offence she committed and the provision of sentence under the NDPS Act provided therefor and was thereafter arrested vide memo Ext. PW-2/B. The information qua her arrest was given to her brother Sangat Ram as per endorsement made on Ext. PW-2/B. Lady Const. Veena Devi (PW-2) was summoned from PS Kullu. She conducted the personal search of the accused vide memo Ext. PW-2/A.

(3.) On the completion of investigation on the spot, the police party left for the Police Station. PW-1 HHC Uttam Singh met the I.O. PW-6 HC Jamal Deen in the Police Station and handed over the case file to him. The columns of the documents prepared on the spot were completed. The case property was produced before SHO Sanjeev Chauhan (PW-7), who resealed the same with 8 impressions of seal "K". PW-7 SHO Sanjeev Chauhan has also completed the relevant columns of NCB-I form and thereafter entrusted the case property to MHC Ram Krishan, PS Kullu, who entered the same in malkhana register vide entries Ext. PW-5/A and retained in his safe custody in the malkhana. The case property was sent to FSL Junga by PW-5 Ram Krishan through Const. Sunil Kumar (PW-3) vide RC Ext. PW-3/A on 22.2.2010. The I.O. PW-6 HC Jamal Deen had prepared the special report Ext. PW-4/A and delivered the same to Addl. Superintendent of Police, Kullu on 21.2.2010. On the completion of investigation and on the receipt of chemical examiner's report Ext. PW-6/D, PW-7 SHO Sanjeev Chauhan has prepared the Challan and filed in the Court.