KISHORI LAL Vs. STATE OF H P

JUDGEMENT

(1.) Since both the appeals are directed against common verdict of conviction pronounced upon both the accused by the learned Special Judge, Court No. II, Kangra, at Dharamshala, hence both are disposed of by a common judgment.

(2.) The instant appeals are directed against the judgment rendered on 31.12.2007/1/1/2008, by the learned Special Judge, (Court No. II),Kangra at Dharamshala, H.P., upon, Sessions Trial No. 26-G/04, whereby co-appellant Kishori Lal stands convicted AND is consequently sentenced to undergo rigorous imprisonment, for four years AND to pay a fine of Rs. 30,000 /-, for commission of an offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act') AND in default of payment of fine, he is sentenced to suffer simple imprisonment for one year AND the appellant Vijay Singh stands convicted AND is consequently sentenced to undergo rigorous imprisonment, for three months AND to pay a fine of Rs. 5,000 /-, for commission of an offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act') AND in default of payment of fine, he is sentenced to suffer simple imprisonment for one month.

(3.) Brief facts of the case are that on 13.12.2003, Constable Raj Kumar No. 429 of Police Station, Jwalamukhi was deputed by SHO to collect information regarding excise and contraband vide rapat No. 3, the copy of which is Ext. PW12/B. In accordance with this rapat said constable Raj Kumar went towards Garli pragpur, Kaloha, Mahakaleshwar, Chamukha side at about 8:05 AM. Though secret information, he came to know that the accused Kishori Lal was involved in selling and purchasing contraband articles in his house with his other co-accused Vijay Singh and Kuldip Singh. In the meantime, SHO Jasbir Singh, ASI Rumal Singh, HC Anjan Pal, HHC Amar Singh and HHC Balbir Singh had also gone gtowards Kaloha, Garli Paragpur and Mahakaleshwar Chakukha etc. vide rapat No. 5, Ext. PW12/A and they had met constable Raj Kumar at Banni Chowk at about 10:55 AM. There Constable Raj Kumar told them that the accused persons were involved in purchasing and selling contraband articles in the house of accused Kishori Lal in village Khanna and in case raid was conducted, there was likelihood of recovery of contraband from the possession of the accused. The SHO recorded statement of Constable Raj Kumar Ext. PW2/A, as per his version and sent the same to Police Station, Jwalamukhi on which the present case was registered against the accused persons vide FIR Ext. PW8/A. The SI prepared grounds of search Ext. PW12/C in compliance of Section 42(2) of the ND & PS Act, and sent the same to SDPO Dehra, through HHC Amir Chand. The SI/SHO Jasbir Singh and other police officials thereafter proceeded towards Garli and on reaching there, he had formed raiding party by associating independent witnesses Rajindra Devi and Leela Devi and then they went to the house of the accused Kishori Lal in village Khanna and the house was raided by raiding party members and the accused persons were found present there. The SHO disclosed to the accused person that he was having information about their being in possession of contraband and for that matter he was likely to search them and the house. For the purpose he had given his own search to the accused persons in the presence of independent witnesses and on his search nothing incriminating was recovered from him and memo Ext. PW3/A was prepared to this effect. Thereafter, the house of the accused was searched. One Almirah was found in the house and during search of that Almirah, one polythene packed at the back of the clothes was recovered from the middle compartment of that Almirah. On checking that polythene pack, charas in the form of sticks was found, and on weighing the same it was found to be 780 gms in all. Two samples of 20 gms of Charas each were separately taken and were put inside small Dhoop containers and were separately sealed with seal "J" in separate cloth parcels by affixing five seals of J on each parcel. The remaining 740 gms of Charas was separately sealed in cloth parcel by affixing five seals of seal "J". All these articles were taken into possession by the police vide memo Ext. PW1/A. After the aforesaid formalities, the SHO had asked the accused that their search was also liable to be taken and they were free to give their search either to the gazetted officer of the Police or to any Magistrate, or to him, on which they had given their consent in writing to give their search, about which he prepared separate memo Ext. PW12/D to Ext. PW12/F, with respect to accused Vijay Singh, Kishori Lal and Kuldip Singh, respectively in the presence of witnesses. On personal search of accused Vijay Singh , one four square cigarette container was recovered which, on checking was found to be 20 gms of charas. This charas was sealed in the same cigarette container in cloth parcel by sealing it with five seals of seal 'J' and the seal after use was handed over to independent witness Leela Devi and memo Ext. PW1/B was prepared to this effect. Seal impression Ext. PW12/G of seal "J" was separately taken on a piece of cloth. Thereafter the search of the other two accused Kishori Lal and Kuldip Singh had also been conducted, but nothing incriminating was recovered from, them and memo Ext. PW3/B and PW3/C were prepared to that effect. All the accused had been arrested and the information of their arrest had been given to the persons of their choice and memos Ext. PW12/J and PW12/K and PW12/L were prepared in the presence of witnesses. After the arrest of these accused, their personal searches were taken separately vide separate memo Ext. PW12/M and Ext.PW12/N and PW12/O in the presence of witnesses. After completing all the codal formalities, police challaned the accused persons for commission of the aforesaid offence. During the pendency of the trial, accused Kuldip Singh died and proceedings against him stood dropped vide order dated 24.11.2004. Prima facie case was made out against the other two accused Kishori Lal and Vijay Singh for commission of the offence punishable under Section 20 of the ND & PS Act, and charge was accordingly framed against him to which they pleaded not guilty and claimed trial.