SHYAM LAL Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THIS is an appeal filed by the appellant against the judgment of the Court of learned Special Judge, Kullu, dated 13.6.2006, vide which the appellant was held guilty under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the NDPS Act and was sentenced to undergo rigorous imprisonment for 10 years and pay a fine of Rs. 1.00 lac. In default of payment, of fine, the appellant was to further undergo imprisonment for two years.

(2.) BRIEFLY stated the facts of the case are that on 26.11.2004, PW -3 SI Joginder Singh, Incharge of Police Post, Manikaran, proceeded from the Police Post, Manikaran alongwith PW -1 HHC Hem Raj, PW -2 HC Yash Pal and HHC Nand Lal at 2.30 a.m. They laid a naka at Chhoj Nallah at 6.30 a.m. and found that the accused was coming on foot, carrying a pithu bag on his back. The accused became perplexed on seeing the police patty and was apprehended. The accused disclosed his 26/5/2014 Page 269 Shyam Lal Versus State Of Himachal Pradesh name as Shyam Lal, a resident of Nepal. Thereafter, the Investigating Officer SI Joginder Singh PW -3 sent one of the police official in search of local and independent witnesses, but none could be associated and then the bag of the appellant/accused was searched in presence of the police officials. On checking of the bag, two plastic packets were found, which were containing Charas in the shape of chapatis and chura. On weighment, the Charas was found to be 1.850 kilograms. Out of the recovered Charas, two samples of 25 grams each were taken separately and the samples and the remaining Charas was sealed at the spot, which Charas was taken in possession vide recovery memo and the Investigating Officer sent a Ruka to the Police Station, completed the formalities at the spot and on reaching the police station, he deposited the case properly with SHO Badri Singh, who re -sealed them. On completion of the investigation and on receipt of the report of the Chemical Examiner, the challan was filed before the learned trial Court, who tried the appellant under Section 20 of the NDPS Act leading to his conviction, as detailed above.

(3.) THE submissions made by the learned Counsel for the appellant were that inspite of opportunity to join independent witnesses, the Investigating Officer had not joined independent witnesses and, therefore, there was non -compliance of Section 100 Cr.P.C. It was also submitted that no option under Section 50 of the NDPS Act was given to the appellant and, therefore, the conviction imposed cannot be said to be proper. The learned Counsel for the appellant also referred to some contradictions in regard to time when the police party proceeded to the spot or returned from the spot and as such it was submitted that the prosecution has miserably failed to prove their case.