State of H.P. vs Mangat Ram

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, in reference to judgment dated 21.11.1995 passed by learned Special Judge, Solan, HP in case No. 4-NL/7 of 1994, thereby acquitting the respondent / accused for the offence u/s 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 in reference to FIR No. 163/1993.

The prosecution case is that on 18th December, 1993, SHO, Police Station, Nalagarh Sh. Gurmit Singh (PW-5) along with other police officials, on suspicion, apprehend the accused. Independent witnesses Surjeet Singh (PW-1) and one Raghubir Singh were also associated in the raiding party. Accused/respondent was given option to offer his personal search either by police officials or before a Gazetted Officer or before a Magistrate. Personal search Ex PB was conducted. A polythene wallet was found wrapped to his stomach under the shirt was taken out in which 510 Gms of ''Charas'' was recovered. Two samples of 20 Gms each were separated from such recovered material and sealed in two different parcels with seal T'' and the samples were sent for chemical examination and on completion of the investigation, accused/respondent was charged for the aforesaid offence and the case was committed to session trial.

In order to prove its case, prosecution has examined as many as 5 prosecution witnesses, namely, Surjeet Singh (PW-1), MHC Om Parkash (PW-2), Constable Sita Ram (PW-3), S.I. Ramna Ram (PW-4) and SHO Gurmit Singh (PW-5) whereas to his statement u/s 313 Cr.P.C., accused/respondent pleaded not guilty and claimed trial.

Mr. Rajinder Dogra, learned Addl. Advocate General, appearing on behalf of the State, has argued that on personal search, contraband good was recovered and on chemical examination, it was found ''Charas''. However, the prosecution, after fulfilling all the requirements, has rightly made endeavour to prove the prosecution case beyond reasonable doubt. As such, the respondent/accused is to be held guilty of the aforesaid offence and is to be convicted.

On analysis of the prosecution witnesses and material on record, we notice that the respondent/accused was apprized that whether he wants to be searched either by police officials, Gazetted officer or by Magistrate and on his agreeing, personal search was made. The accused/respondent was not apprized that he has a right to be searched and only after agreeing, personal search was made. As such, the same is not the compliance of mandatory requirement of Section 50 of the N.D.P.S. Act.

Out of above two independent witnesses, only one Surjeet Singh, PW-1 was examined who has stated that the police had put a naka near Cement Factory Manjahauli and the accused going towards Dherowal side, was apprehended and on search ''Charas'' was recovered from him. In cross examination, PW-1 has stated that the accused was not going towards Nalagarh and the police have put their naka about 300 meters away from the Ghee factory situated at Manjhauli. We also notice that PW-1 though has made endeavour to support the prosecution case, but the reason best known, another prosecution witness, namely Raghbubir Singh has been abandoned.

On analysis of the prosecution witnesses and material on record, we notice contradictions, inconsistencies and non-compliance of the mandatory requirement of Section 50 of N.D.P.S. Act. The learned Special, Solan, has rightly come to the conclusion that the prosecution has failed to bring home guilt to the accused. In our considered view, we find no scope for interference in the impugned judgment. The criminal appeal, being devoid of merit, is accordingly dismissed.