State of Himachal Pradesh vs Som Dass

R.B. Misra, J.—The present criminal appeal has come up for consideration after the leave to appeal has been granted u/s 378(3) of the Code of Criminal Procedure against the judgment dated 21.11.2001, passed by Sessions Judge, Kangra in Sessions Case No. 9-K/VII-2001, thereby acquitting the Respondent/accused for the offence u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short as Act), in reference to First Information Report No. 191 of 2000.

The prosecution case, in brief, is that on 28.10.2000 at about 2.00 P.M., Head Constable Prithi Singh, Constable Om Parkash and Constable Raj Kiran, while at Bhagsunag Road, noticed one person, who after seeing the police party tried to run away and on 2 suspicion was apprehended. At that time, Sansar Chand and Bhim Singh also present on the spot joined the raiding party. After giving option to the accused for being searched by a Gazetted Officer or Magistrate or by the raiding party, the accused agreed to give his personal search by the police raiding party and on personal search 19 grams of Charas was recovered. Out of the recovered Charas, two samples of 5 grams each were taken out and the remaining Charas was sealed in separate parcels and seal impression "T" was placed on those parcels. Rucka Ex. PC prepared by Head Constable Prithi Singh was sent to Police Station through constable Raj Kiran, in that reference FIR Ex. PD was registered. Site plan Ex. PF was also prepared. The samples were sent for chemical examination. On completion of investigation, the accused was charged for the offence aforesaid.

In order to prove its case, prosecution examined as many as 8 witnesses, whereas the accused/Respondent through his statement made u/s 313 Code of Criminal Procedure, denied the offence.

PW-1, Sh. Sansar Chand, has stated that he was called by the police and was only asked to put signatures on some papers, as such PW-1, Sansar Chand, independent witness, was declared hostile.

PW-2, Sh. Bhin Singh also stated that he was asked by the police to put signatures on some papers already prepared. PW-2, Sansar Chand has not supported the prosecution case.

PW-3, Inspector Jagdish Chand has stated that Charas was produced before him, which was sealed with seal impression "T" and he again resealed the parcel of Charas with seal impression "A". NCB 3 form was also prepared. PW-4, Sh. Gian Chand, ASI deposed that on receipt of Rukka Ex. PC through constable Raj Kiran, he recorded FIR Ex. PD. PW-5, Head Constable Tara Singh put the special report before the Superintendent of Police, Kangra. PW-6, Head Constable, Sushil Kumar had kept the contraband in Malkhana and sent the samples for chemical examination. PW-7 HHC, Chamaru Ram received one sealed parcel along with RC No. 146/21, from MHC Sushil Kumar, which he took to CLT Kandaghat and on return submitted the receipt. PW-8, Head Constable, Sh. Prithi Singh, made endeavor to support the prosecution case and has re-asserted the prosecution version.

On analysis of the testimonies of the prosecution witnesses and materials on record, we notice that ''NCB form'' does not indicate that the facsimile seal was put on it, as such it cannot be said that whether sample received after chemical examination was the same sample/good, which was sent for chemical examination. Ex. P-B does not reveal that before making personal search of the accused/Respondent, he was apprized of his legal right of being searched by a Gazetted Officer or Magistrate, as such, the entire search is vitiated for non compliance of mandatory requirement of Section 50 of ''the Narcotic Drugs and Psychotropic Substances Act''. Moreso, recovery of contraband/good from the accused has not been corroborated by independent witnesses, i.e. PW-1, Sh. Sansar Chand and PW-2, Sh. Bhim Singh. In these circumstances, the prosecution has miserably failed to bring home the guilt to the accused. We are also 4 of the considered view that the prosecution has failed to prove its case beyond reasonable doubt. Hence the appeal being devoid of merit is accordingly dismissed.

The bail bonds, furnished by the accused/Respondent are hereby discharged.