STATE OF H P Vs. BALKRISHAN

JUDGEMENT

(1.) Learned Special Judge, Fast Track Court, Chamba has acquitted the respondent (hereinafter referred as to the 'accused') of the charge under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'NDPS Act' in short) vide judgment dated 24.01.2011 passed in Sessions Trial No. 15/2010, which is under challenge before this Court in the present appeal.

(2.) The legality and validity of the impugned judgment has been questioned on the grounds inter-alia that learned trial Court has not appreciated the evidence available on record in its right perspective and to the contrary, based its findings on hypothesis, surmises and conjectures. The testimony of prosecution witnesses has been discarded for untenable reasons, particularly when they had no enmity with the accused. The reasoning as given is erroneously wrong and unsustainable. The cogent and reliable evidence having come on record by way of testimony of PW-1, PW-2 and also the I.O. PW-9 has erroneously been brushed aside. Minor contradictions in the statements of prosecution witnesses have been given undue weightage while discarding the prosecution case and recording findings of acquittal. The recovery of charas weighing 4.500 kilograms from the exclusive and conscious possession of the accused is satisfactorily proved from the evidence produced by the prosecution. The evidence that PW-9 has conducted the investigation with the help of mega light, which was held by Constable Rajesh is also erroneously brushed aside. The evidence should have been read as a whole to record the findings of conviction and a sentence or two from the statements of witnesses should have not been picked up to discard the prosecution case against the accused. The witnesses PW-1 HC Narender Singh, PW-2 HHC Kewal Krishan and the I.O. PW-9 Naseeb Singh though were official witnesses, however, on perusal of their testimony, they all supported the prosecution case on all material aspects. It is with these submissions in the grounds of appeal, the impugned judgment has been sought to be set aside and the accused convicted of the charge under Section 20 of the NDPS Act framed against him.

(3.) In order to decide the fate of this appeal, it is desirable to take note of the facts in a nut-shell. On 28.1.2010, ASI Naseeb Singh, PW-9 has entered rapat No. 6 Ext. PW-7/B in daily diary at 8.30 P.M. and accompanied by HC Virender Singh (PW-1), HHC Kewal Krishan (PW-2), Constable Rajesh Kumar and Constable Yakub Mohammad proceeded for patrolling towards Sundla and Koti area. Around 12.05 a.m (mid night), on their way to police station and while at Kotipul, they noticed accused walking down through a path towards Kotipul side. PW-9 alighted from the vehicle along with other police officials. The accused on seeing them got frightened and tried to run away towards Kotipul side. He allegedly was over powered by him with the help of other police officials. He was found carrying a black coloured bag Ext. P-2 on his shoulder. On suspicion that he may be carrying some narcotic drug or psychotropic substance in the bag, he was apprised orally as well as in writing about his legal right qua his search before a nearby gazetted officer or Magistrate. Memo Ext. PW-1/A was prepared in this regard. The accused allegedly consented for being searched by the police present on the spot. On this, PW-9 and other police officials had offered their search to the accused first. Nothing incriminating, however, was recovered from them. Memo Ext. PW-1/B was prepared in this regard. It is thereafter, search of the bag being carried by the accused was conducted by PW-9. A polythene packet Ext. P-3 was found kept in the bag. On further search of the said packet, charas in the shape of sticks and balls was found kept therein. The same was weighed with scales and weights available in the I.O. kit. The recovered charas was found to be 4.500 kilograms in weight.