State of H.P. vs Madan Lal

R.B. Misra, J.—The present criminal appeal has come up 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 1.6.2000, passed by the learned Special Judge, Kangra at Dharamshala, in Sessions Case No. 30-D/VII/1999, acquitting the alleged accused for the offence u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short Act) in reference to FIR No. 96 of 1999.

The prosecution case is that on 10.4.1999, PW-8, ASI Kishan Lal, Investigating Officer, alongwith ASI Chain Lal, PW-6 and other police officials were present in Kotwali Bazar, area at about 2.15 p.m. where they received secret information that accused Madan Lal deals in selling of illicit liquor. The raiding party was constituted and two independent witnesses PW-1 Girdhari Lal and PW-2 Partap Chand were also associated. The personal search of accused was carried out and thereafter search of the shop of the accused was made and one polythene bag, wrapped in a cloth, was found in the shelf of the shop from which charas weighing 150 grams, was recovered, out of which a sample of 20 gram was taken and sealed with seal impression ''A'', and sample was sent to the Chemical Examiner. After completion of investigation accused-Respondent was charged for the offence under Sections 20 of the Act.

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

PW-1 Girdhari Lal, labourer has stated that he was sitting at the chowk while police took him to the police station where he was asked to put his signatures on papers. As per testimony of PW-1 neither search of the shop of the accused was conducted nor anything was recovered in his presence.

PW-2, Partap Chand, another independent witness, has stated that he runs a Karyana shop from there he was called by the police, and was asked to put his signatures on papers. However, neither search of the shop of the accused was made nor anything was recovered in his presence. As such, both the independent witnesses were declared hostile. PW-8, ASI, Kishan Lal, in support of prosecution case, has stated that On search of shop of the accused, 150 gram of charas in the form of batties was recovered and the same was taken into possession and sealed with seal ''A''.

PW-3, HC Rajinder Singh, has stated that he deposited two parcels duly sealed with seals ''A'' and ''H'' alongwith seal impression and he entered the case property in the Malkhana Register. On 15.4.1999 he sent the cased property to the Chemical Examiner, Kandaghat through LHC Dharam Chand to deposit there and submitted the receipt on his return. LHC Dharam Chand was examined as PW-4 who has materially corroborated this statement.

PW-5, constable Surinder Kumar, has stated that on 10.4.1999 MHC Police Station, Dharamshala had handed over to him the special report which he delivered at the residence of S.S.P. Kangra at 6.10 p.m. PW-7, Vinod Kumar, Reader to S.S.P., Kangra had brought the report.

PW-9, Kishan Chand, had received a ruka from ASI Kishan Lal through constable Ramjit Dass, on the basis of which FIR Ex.PN was recorded.

On scrutiny of the prosecution witnesses and the materials on record, we notice that Girdhari Lal (PW-1) and Partap Chand (PW-2), both independent witnesses, stated to have been associated with the raiding party, have however not at all supported the prosecution case. They have stated that neither any search nor any recovery was made in their presence. Nothing is on record to show that the mandatory requirement of Section 50 of the NDPS Act was complied with. For fulfilling the mandatory requirement of Section 50 of the NDPS Act, the accused�Respondent was to be very clearly apprised of that he has a right and he is entitled to be searched by a Magistrate or Gazetted Officer. In facts and circumstances, learned Sessions Judge has rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt against the accused. In our considered view, the prosecution has failed to bring home the guilt against the accused/Respondent. The criminal appeal, being devoid of any merit, is accordingly dismissed. The bail bonds submitted by the accused/Respondent are discharged.