DEV KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Dev Kumar, a Nepali National (hereinafter referred to as the accused), who has been convicted by learned Special Judge, Kinnaur Sessions Division at Rampur Bushahr, District Shimla, vide judgment dated 02.07.2016, passed in Sessions Trial No.0000014/2015, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act in short) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and in default to pay the fine, to undergo simple imprisonment for a further period of two years, has approached this Court by filing the present appeal for quashing and setting aside the impugned judgment on the grounds, inter-alia, that learned trial Court has based its findings on surmises and conjunctures and thereby caused miscarriage of justice to him.

(2.) Whether the grounds, as raised in the memorandum of appeal, carry substance or not and the impugned judgment is not legally and factually sustainable, need reappraisal of the given facts and circumstances and also the evidence available on record. The prosecution case as disclosed from the record, is that on 10.05.2015, around 04.30 p.m., the police of Police Station, Jhakri, Tehsil Rampur Bushahr, District Shimla, formed a party to patrol in Rattanpur, Majhewali, Shah & Dofda side. The police party was headed by PW-10 ASI Sher Singh Negi. Its other members were HHC Inder Singh (PW-1), Constable Rajesh Kumar (PW-2) and Constable Roshan Lal. A Rapat which is Ext.PW-6/A to this effect was entered in daily diary. The police party proceeded for patrolling in official vehicle No.HP-02-0788. Around 05.30 p.m., the police party while near Explosive Magazine Technology House Private Limited at Rattanpur-Majhewali road, the accused was spotted coming to the main road through a link road. He was going towards Majhewali side. He was having a backpack (Pithu) on his right shoulder. On seeing the police vehicle, the accused became nervous and he started running on road side. PW-10 Sher Singh Negi had overpowered him with the assistance of accompanying police officials as the place being a secluded and lonely place, no one was present nearby, therefore, HHC Inder Singh (PW-1) and Constable Roshan Lal, were associated as witnesses. It is in their presence, the material being carried in backpack, which the accused was carrying on his right shoulder, was checked and charas in the shape of sticks Ext.P-4 (29 sticks) and in the shape of pancake (8 pieces), was recovered from its inner pocket. On inquiry, the accused disclosed his antecedent to PW-10 Sher Singh Negi. PW-2 Constable Rajesh Kumar was deputed in search of witnesses and also to procure a weighing scale. He though brought an electronic weighing scale from the shop of Ram Chander Negi (PW-3) of village Rattanpur, however, informed the Investigating Officer that no one was available who could have been brought to the spot for being associated as an independent witness. The charas was weighed in presence of police officials and it was found 1 kg. 80 grams. The same was sealed in a cloth parcel (Ext.P-3) with eight impressions of seal 'H'. The currency notes worth Rs.10,000/- (Ext.P-6) in the denomination of 100x96 and 50x8, were recovered from the outer pocket of backpack (Ext.P-2). The same were also sealed in a cloth parcel (Ext.P-5) with six impressions of seal 'H'. The parcel Ext.P-4 was again put back in the backpack Ext.P-2 and sealed in a cloth parcel Ext.P-1 with six impressions of seal 'H'. The impression of seal 'H' Ext.PW-1/B was taken separately for sample. NCB-1 form Ext.PW-7/C was filled in triplicate at the spot. The seal was handed over to HHC Inder Singh.

(3.) The recovered charas was taken into possession vide seizure memo Ext.PW-1/A. A copy thereof was supplied to the accused free of costs under his signatures on taking a receipt thereof. It is thereafter Rukka Ext.PW-10/A prepared and handed over to PW-2 Constable Rajesh Kumar with a direction to carry the same to Police Station for registration of the case. PW-2 Constable Rajesh Kumar handed over the Rukka to S.I./S.H.O. Tara Chand (since dead), who recorded the FIR Ext.PW-10/D. During further investigation of the spot, PW-10 had prepared site plan Ext.PW-10/B and also taken photographs of the spot Ext.PW- 5/A-1 to Ext.PW-5/A-3. The other photographs Ext.PW-5/A-2, Ext.PW-5/A-6 were clicked by Constable Rajesh Kumar PW-2. All the photographs were got developed from PW-5 Mastan Singh, a local photographer at Jhakri. The certificate Ext.PW-10/F qua generation of the photographs through the official digital camera of Police Station, Jhakri, was also obtained.