STATE OF HIMACHAL PRADESH Vs. RAKESH KUMAR

JUDGEMENT

(1.) Aggrieved by the acquittal of the respondent for an offence punishable under Sec. 18 of the Narcotic Drugs and Psychotropic Substances Act (for short 'ND&PS Act'), the State has filed the instant appeal.

(2.) Briefly stated the case of the prosecution is that on 16.03.1998, a police party headed by the Deputy Superintendent of Police, Shri Prem Thakur, was present at Village Bhadroa and at about 3.00 p.m., it received a secret information that 'Sharma Traders' shop at Damtal deals in contraband. Such information was reduced into writing and then passed on to the Superintendent of Police, Kangra. The police party thereafter proceeded to Damtal and also associated two witnesses namely Karnail Singh and Sandip Singh. The shutters of the shop had been pulled down and when opened it was found that there were two persons inside the shop, who disclosed their names as Subhash and Rakesh. Both the persons were apprised of the information received by the police party and also gave reasons for search and issued notice to this effect to both these persons and they opted to be searched by the police party. Their personal search was conducted and premises in question was also searched, which led to the recovery of a polythene bag containing opium, which on weighment was found to be 7kg 100 grams. Two samples of 25 grams each were taken and sealed separately with seal 'M', whereas, remaining opium was also put in six polythene bags which were also sealed and put in one parcel of cloth which too was sealed. The specimen of the seal impression was taken separately vide Ex. PR and seal after use was handed over to Karnail Singh. The rukka was then sent to the Police Station for registration of the case pursuant to which an FIR in question came to be registered. On completion of the investigation, the respondent along with Subhash Chand was made to face trial. Since Subhash Chand did not appear, therefore, he was declared as proclaimed offender vide order dated 29.11.2000.

(3.) After recording evidence and evaluating the same, the learned Special Judge acquitted the respondent mainly on the ground that the prosecution has not been able to establish the guilt of the respondent and since the complainant and the person investigating the case was the same person, the same has resulted in miscarriage of justice.