DEEPAK THAPA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The appellant was allegedly found in possession of 12.700 Kg-s. of Charas, whereas, co-accused Sant Ram accompanying him was a conspirator and abettor of the offence. As such, appellant was charge-sheeted and convicted for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short "the Act" and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of four years, whereas, the coaccused Sant Ram was acquitted. Therefore, the appellant has challenged the judgment of his conviction and sentence passed by the learned trial Court in the present appeal.

(2.) The factual matrix giving rise to the present appeal can be stated as follows. On 30th July, 2004, at about 3 a.m., the police party headed by PW6 HC Narain Singh was patrolling in the area of Manikaran for the detection of crime, in the Government vehicle, bearing registration No. HP-34-A-0049, driven by Teja Ram. Around 3.45 a.m., they laid a Naka on the road near Bhairan bridge. At about 4.15 a.m., they spotted the appellant and his co-accused, coming on foot from the opposite side. They were stopped. The appellant was barefooted having a rucksack on his back, whereas, his coaccused was carrying a pair of "Chappal" of the appellant in his right hand, one of which was damaged. The area was isolated and it was odd time, thus, the police suspected that the appellant might be carrying some contraband. Thus, PW6 HC Narain Singh tried to find out independent persons from the vicinity to witness the search, through PW5 Constable Sunder Lal, but he could not find any person, as such, HC Narain Singh aforesaid included Sunder Lal and Bahadur Singh constables as witnesses. He alongwith his co-accused were informed of their right to exercise their option for the search either before the Magistrate or before a Gazetted Officer, in writing Ext. PW5/A, but, they opted to be searched by the police party present there. HC Narain Singh carried the search of the rucksack of the appellant and recovered 12.700 Kgs Charas from the rucksack, which was in a polythene envelope. From the recovered Charas, which were flats, the said Police Officer randomly separated two samples of 25 grams each, and sealed each of them separately with seal impression "T". The remaining bulk alongwith polythene cover Ext.P5 were put back in the rucksack Ext.P4 and then sealed with the same seal. The sample of seal was taken on a piece of cloth Ext. PW1/E. NCB forms, in triplicate were filled in. Facsimile of the said seal was also put on the NCB forms aforesaid. Case property was taken into possession vide memo Ext. PW5/D. Its copy was also supplied to the appellant. Nothing was recovered from the possession of the coaccused Sant Ram except a pair of "Chappal" of the appellant, its left side "Chappal" was found broken.

(3.) The appellant and his co-accused were arrested for the offences aforesaid and grounds of arrest were intimated to them.