State of H.P. vs Amarjit and Another

R.B. Misra, J.—The present appeal has come for consideration after leave to appeal u/s 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment dated 12th December, 1995, delivered by the learned Sessions Judge, Mandi, Division Mandi, in Sessions trial No. 23 of 1995, whereby the accused have been acquitted of having committed an offence punishable u/s 20 of Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the "Act").

In order to adjudicate the criminal appeal, it is necessary to give the factual background of the case.

On 4.3.1995, at about 2/2.30 P.M., C.I.D. Inspector Prem Singh received secret information that two persons were roaming in the Mandi Bazar on motor-cycle No. HP-34-1917 with ''charas'' and they were likely to go towards Sundernagar and would refill patrol in the motor-cycle at Laxmi Petrol Pump Mangwain, Mandi, on which SHO Ravinder Singh alongwith SI Prem Singh from Police Station, Sadar, Mandi, immediately went to Lazmi Petrol Pump and the both accused, Amarjit and Amit Lal were found standing near the patrol pump, adjacent to the motor-cycle No. 34-1917 and Inspector/SHO Ravinder Singh joined two independent witnesses Suresh Patyal and Naresh Pal in the raiding party and gave notice u/s 50 of ''Act'' and on the option of the accused to be searched by the SHO, search of the bag in the presence of the witnesses was conducted. On such search, 1 kg. ''charas'' wrapped in a polythene was recovered from the bag. In addition, one shawl Sweater, Pent, Pajama, Kurta and two shirts were taken in possession and from the recovered charas, two samples of 50 grams each were taken and samples and remaining charas were sealed on the spot and thereafter in the similar way, notice u/s 50 of the ''Act'' was given to accused Amit, who opted to be searched by Inspector/SHO himself and then search was conducted and 775 grams charas wrapped in a polythene was recovered from his bag alongwith three jackets, two jeans, one skibi, one buniyan, one underwear, two caps and one glove pair, four cassettes one Panasonic walkman, one pair of socks, one polish and one HMT watch, which were taken in possession vide recovery memo and two samples from the recovered charas were taken out and samples and charas were sealed and the case property was deposited in the Malkhana. The investigation was carried out and after receipt of the reports of the Chemical Examiner it was found that samples contained charas, which is an incriminating article under ''Act''. The accused were challaned and sent up for trial to the Court for the offence punishable u/s 20 of the N.D.P.S. Act.

On the basis of material available on record, the alleged accused were charged for offences punishable u/s 20 of the Act ibid and in order to prove its case, the prosecution has examined as many as 11 prosecution witnesses, whereas the alleged accused have shown their innocence and have denied offences against them.

Head Constable Prem Chand(PW-1) in his testimony has stated that on 4.3.1995 at 6.00 P.M. he was deployed as Reader to Additional Superintendent of Police, Mandi when he received a special report in FIR No. 98/95 of Police Station, Sadar, Mandi. The same is Ext. ''PA''. Head Constable Hukam Singh(PW-2) stated that on 4.3.1995, one Ravinder Singh, SHO, Police Station, Sadar, Mandi deposited four small pullandas sample and two big pullandas case property sealed with seal ''H'' in the Malkhana and on 10.3.1995, he sent two pullandas sample vide RC No. 27/95, to Chemical Examiner, Kandaghat, through Devi Ram and after depositing the samples, RC was deposited with him. Hukam Singh(PW-2) acknowledged the pullandas Ext. P-1 to Ext. P-4 and no-body interfered with the samples or the case property. Constable Rajesh Kumar (PW-3) in his testimony has stated that on 4.3.1995 Constable Sunder Lal brought rukka Ext. ''PB'' on the basis of which FIR and endorsement PB/1 on ''rukka'' was recorded. Constable Sunder Lal (PW-4) has stated that on 4.3.1995, SHO Ravinder Singh gave ''rukka'' Ext.''B'' which was handed over to MHC Rajesh Kumar and after recording the FIR, Rajesh Kumar gave file to him which was given to SHO on the spot. Constable Dev Ram (PW-5) has deposed that he took two sealed parcels seal with seal impression ''H'' vide RC No. 27/95, which he deposited with the Chemical Examiner, Kandaghat on 10.3.1995. Constable Goverdhan Singh (PW-6) has deposed that on 4.3.1995, SHO Ravinder Singh gave special report to him and he handed over the same to Additional Superintendent of Police Mandi on the same day at about 5.30 P.M. Constable Chint Ram (PW-7) stated that he has brought original report rojnamcha, copy of which is Ext.''PB''. Inspector Incharge CID Mandi, Prem Singh stated that on 4.3.1995, he received information that two persons were roaming in the Mandi Bazar on motor-cycle No. HP-34-1917 with ''charas'' and they are likely to go towards Sundernagar and in between they would take petrol at Laxmi Patrol Pump. Such information was received on telephone by the police of Police Station, Sadar, Mandi. Suresh Patial (PW-3) one of the independent witnesses who joined the raiding party has deposed that during Shiv-Ratri Mela notices Exts. ''PE and PF '' were given by the police to Amarjit and also signed by him as witness. However, PW-9 has further deposed that such notices have not read over to him as he was only asked to put his signatures. PW-9 has further stated that no such searching was conducted in his presence and nothing was recovered from the accused in his presence. He has further stated that he was simply asked to put signatures on the papers on the spot and Ext. PF. Ext.PE/1, Ext.PF/1, Ext. ''PG and Ext. PH'' were signed by him as witness. In cross examination, PW-9, has also stated that he was never called in police Station in this case. However, when he reached on the spot, many persons, were already standing there with the police at the Petrol Pump and the owner of the Petrol Pump and his servants were also present there. S.I. Prem Singh (PW-10) and Inspector Ravinder Singh have supported the case of the prosecution by saying that on 4.3.1995, 1kg. ''charas'' was recovered from the bag being carried by the accused. PW-9(Suresh Patial) who was stated to be independent witness said to have joined the raiding party, however, has not supported the prosecution version and has simply stated that he was called in the police station and was asked to put his signatures and further stated that he has not seen any recovery of ''charas'' from the alleged accused. He has only put his signatures at the command of the police officials as such he was declared hostile.

On perusal of the prosecution witnesses and material available on record, we have noticed that FIR Ext. ''PC'' and statement of PW-11 Inspector Ravinder Singh, prior information was given by Inspector CID, Prem Singh that two persons are roaming at Mandi Bazar on motor-cycle No. HP34-1917 with a bag of ''charas'' and they have intended to take petrol from Laxmi Petrol Pump at Mangwain Mandi. However, the Inspector has stated that prior information could not be given to the Superior Officers before proceeding on the spot as there was apprehension of accused running away and evading their apprehension. Therefore, mandatory provisions of Section 42 (2) of the Narcotic Drugs & Psychotropic Substances Act has not been complied with.

Be that as it may, the ''charas'' weighing 775 grams, alleged to have been recovered from the alleged accused, cannot be treated to have been recovered from the conscious and exclusive possession of alleged accused Amarjit as well as from the conscious and exclusive possession of Amit Lal the alleged co-accused, as the allegation of recovery of article/charas has itself become doubtful as the impendent witness PW-9 Suresh Patial has not supported the prosecution version. Apart from this, the mandatory provisions of Section 42 (2) of the ''Act'', as well as mandatory provisions of Section 50 of the ''Act'', have not been complied with as has been noticed by the learned Sessions Judge, Mandi.

We have noticed that the prosecution witnesses and materials on record are not inspiring any confidence and prosecution has failed to prove its case beyond reasonable doubt and alleged accused have rightly been acquitted by the learned Sessions Judge, Mandi of the offences u/s 20 of the Act.

In view of the above we find no reason to interfere with judgment rendered by the learned Sessions Judge, Mandi in acquitting the accused and as such, the appeal is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged, forthwith.