The State of H.P. vs Bharna Ram

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 and order dated 20.08.1997, passed by the learned Sessions Judge, Chamba, District Chamba, in Sessions Case No. 12 of 1997, acquitting the alleged accused under Sections 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in reference to FIR No. 176 of 1997.

Prosecution case is that accused-respondent, on personal search on 10.10.1996 at about 3:20 p.m. at Tunuhatti, by the police party, led by Shri Rajinder Kumar, SHO, Police Station Dalhousie, was found carrying charas, weighing 1 kg 500 grams. The police party, led by Shri Rajinder Kumar, comprised of Head constables Hoshiara Ram, Krishan Gopal and constables Shiv Ram, Lekh Raj and Nidhia Ram, was present at Tunuhatti. On suspicion the accused-respondent was apprehended by the said police party and Vijay Kumar and Subhash Chand were associated as independent witnesses. The accused-respondent was apprised that whether he wants to be searched by a Magistrate or Gazetted Officer or by the same police party. On his agreeing, his personal search was made and charas, weighing 1 kg 500 grams, was recovered from his possession. A sample of charas, weighing 10 grams, was taken separate and the remaining charas were put into two separate parcels and both these parcels were sealed with seal ''B''. The sample of charas was sent for chemical analysis and after completion of investigation accused-respondent was charged for the aforesaid offence and the case committed to the Sessions Court.

In order to prove its case, prosecution examined as many as nine witnesses, whereas, accused-respondent, through his statement u/s 313 Cr.P.C. denied the prosecution case.

Out of these nine witnesses, S/Shri Vijay Kumar (PW-1) and Subhash Chand (PW-2) are the independent witnesses, while Shri Rajinder Kumar (PW-8) is the investigating officer. The remaining witnesses S/Shri Shiv Kumar constable (PW-3), Ram Dyal constable (PW-4), Kartar Singh MHC (PW-5), Lekh Raj constable (PW-6), Smt. Anjana ASI (PW-7) and Bhagat Ram HC (PW-9) are the formal witnesses.

On scrutiny of the prosecution witnesses and the material on record, we notice that Vijay Kumar (PW-1) and Subhash Chand (PW-2), both independent witnesses, have not supported the prosecution case and have stated that neither any search nor any recovery was made in their presence. The prosecution relied upon the solitary statement of Investigating Officer, Rajinder Kumar, SHO (PW-8), who has stated that charas was recovered from the possession of the accused-respondent, however, only on agreeing by the accused-respondent, charas was recovered. It is not known that the accused-respondent was apprised of his right to be searched. Nothing is on record to show that the mandatory requirement of Section 50 of the NDPS Act was complied with or not. For fulfilling the mandatory requirement of Section 50 of the NDPS Act, the accused-respondent was to be very clearly apprised that he has a right and he is entitled to be searched by a Magistrate or Gazetted Officer or by the same police party.

PW-1 Vijay Kumar and PW-2 Subhash Chand, both independent witnesses, have very categorically stated that the accused-respondent was not told about his right to be searched by the Magistrate or Gazetted Officer. Solitary testimony of PW-8 Rajinder Kumar, SHO, is not reliable to the extent that compliance of Mandatory requirement of Section 5 was made. The testimony of other official witnesses cannot be said to be conclusive to prove the prosecution case.

On analysis of the prosecution witnesses, the material on record and in the facts and circumstances, the 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. In these circumstances, criminal appeal being devoid of merit is dismissed.