Commission of offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 : High Court of Himachal Pradesh

The State Of H.p. V. Kundan Lal High Court Of Himachal Pradesh Criminal Appeal No. 515 Of 1999 06 09 2010 The State Of H.p HON BLE JUSTICE R.B. MISRA HON BLE JUSTICE V.K. SHARMA JJ. LQ HimHC 2010 1733 R.B. Misra 1. The presence of accused respondent could not be ensured despite issuance of non bailable warrants. However Shri M.A. Khan Advocate has been requested to assist this Court as Amicus Curiae and he has agreed to the same. Accordingly Shri M.A. Khan Advocate has assisted this Court in response to the submissions made on behalf by Shri Rajinder Dogra Additional Advocate General for the appellant State 2. The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 04.08.1999 passed by the learned Special Judge Solan District Solan in Sessions Case No. 6 S 7 of 1999 acquitting the alleged accused under Section 20 of the Narcotic Drugs and Psychotropic Substances Act 3. Prosecution case is that police officials while on patrol duty apprehended the accused respondent in association with two independent witnesses and on his personal search 200 grams of charas was recovered from his jacket Rukka was sent by S.I. S.H.O. and two samples each 25 grams of charas were separated and sealed. Thereafter the samples were sent for chemical examination and the accused respondent was charged for the offences under Section 20 of the Narcotic Drugs and Psychotropic Substances Act 4. In order to prove its case prosecution examined as many as six witnesses whereas accused through his statement under Section 313 Cr.P.C. denied the prosecution case 5. Sant Ram and Satish Kumar were associated by the police officials in the raiding party as independent witnesses and from the search of the jacket of the accused respondent charas rapped in a white coloured polythene bag was recovered. The search was made in reference to a secret information received by the police party. However the search was made only by apprising the accused respondent that whether he wants to be (Printed For: Reetasa Samal 02 01 2022 On: 02:14:PM The State Of H.p. V. Kundan Lal searched by the police officer or by others on agreeing the accused respondent was searched 6. From the scrutiny of the prosecution witnesses and the material on record it appears that before making the search accused respondent was not apprised that he has a right to be searched by a Gazetted Officer or Magistrate or by the same police officer and only apprising him that he is to be searched is not the compliance of mandatory requirement of Section 50 of the NDPS Act 7. Two independent witnesses are also silent on the aspect that the searching police party had apprised the accused respondent of his right of being searched as such non compliance of mandatory requirement of Section 50 of the NDPS Act makes the prosecution case doubtful 8. In view of the inconsistencies contradictions and improbabilities in the prosecution case learned Special Judge has rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view lack of mandatory requirement under Section 50 of the NDPS Act and non support of the independent witnesses makes the prosecution case doubtful. The prosecution has failed to bring home the guilt against the accused respondents. In these circumstances criminal appeal being devoid of merit is dismissed 9. The Court appreciate the efforts made by Mr. M.A. Khan Advocate in assisting the Court on behalf of accused respondent as Amicus Curiae Disclaimer: Legitquest has made all efforts to avoid any omission and or mistake in publishing this document and adding editorial and other enhancements. Legitquest would not be liable in any manner whatsoever by reason of any omission or mistake in the published document or any action or advice rendered or accepted on the basis of the document or any editorial or other enhancements like idraf infographics Note Notebook Acts Rules Regulations Bills Notifications Circulars News Interviews Columns Treaties LawCommission Reports Constituent Debates and or any material or feature added by us. All disputes will be exclusively dealt with the Courts Tribunals at Delhi only. It is advised to check the authenticity of all published document from the original source (Printed For: Reetasa Samal 02 01 2022 On: 02:14:PM

Summary: The question as to commission of offence punishable under Section 20 of the Narcotic Drugs &amp; Psychotropic Substances Act, 1985 was examined by THE HIGH COURT OF HIMACHAL PRADESH , consisting of Chander Bhusan Barowalia in the matter of State of H.P vs. Kundan Lal  [ Criminal Appeal No. 511 of 2010 ]  on 21.6.2018. The facts of the case were that a police party was at place Jari in connection with investigation of FIR . Police personnel received secret information that accused is involved in selling of narcotics. On the way, the police associated independent witnesses, i.e., Smt. Saraswaati Devi and Shri Dot Ram. An intimation in compliance of Section 42 of the Act was reduced into writing and the same was sent, through Constable Sanjay Kumar, to Additional Superintendent of Police, Kullu. After receipt of the information, the Additional Superintendent of Police made an endorsement thereon and HC Nirat Singh made an entry. SI Onkar Singh alongwith the independent witnesses went to the shop of the accused, where the accused was present. Firstly, SI Onkar Singh gave his personal search to the accused, but nothing incriminating was found. Subsequently, search of the shop and residential room of the accused was conducted and a polythene bag was recovered, which was kept in a trunk. The said bag was checked and it was found to have contained charas in ball shape. On weighment, the recovered contraband was found to be 500 grams. The contraband was taken in possession and sealed with six seals having impression H. Facsimile seal was taken on a separate piece of cloth and seal, after its use, was handed over to Constable Munish Kumar. Photographs of the spot were also taken. Rukka was prepared and it was sent to police station, through HC Mukesh Kumar, whereupon FIR registered by ASI Rattan Chand and the case file was handed over HC Mukesh Kumar. Site plan was prepared and the statements of the witnesses were recorded. NCB form, in triplicate, was filled in on the spot. The accused was arrested and the case property was produced before ASI Rattan Chand, who resealed the same with four seals having impression E and the seal impression was taken on a separate piece of cloth. ASI Rattan Chand filled in the relevant columns of NCB form and the case property alongwith other documents was entrusted in the custody of MHC Ram Krishan qua which he made an entry at1 of the malkhana register.  Constable Kishan Chand took the case property alongwith the documents to FSL, Junga, and after deposit of the same in FSL, Junga, receipt was handed over to MHC Ram Krishan. A special report was prepared and it was submitted before Additional Superintendent of Police, who after endorsing the same, handed over the same to HC Nirat Singh. HC Nirat Singh made an entry qua the special report in the register. Forensic analysis report demonstrated that the sample of contraband contained 46.88% W/W resin and thus it was charas. After completion of investigation, challan was presented in the Court. The learned counsel for the petitioner  contended that the judgment is based on hypothetical reasoning, surmises and conjectures and the learned Trial Court has failed to appreciate the evidence, which has come on record, to its right perspective. He has argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. Conversely, the learned counsel for the respondent has argued that the judgment of acquittal has been passed by the learned Trial Court after appreciating the evidence, which has come on record, to its true perspective, thus the judgment of acquittal, as passed by the learned Trial Court, needs no interference and the appeal be dismissed. The learned Counsel for the respondent  contended that after re-appreciating the evidence the accused be convicted, as the learned Trial Court has failed to appreciate the evidence correctly and the appeal be allowed. The High Court of Himachal Pradesh  held that it is more than safe to hold that the prosecution has failed to prove the guilt of the accused beyond reasonable doubts and the findings of acquittal, as recorded by the learned Trial Court, needs no interference, as the same are the result of appreciating the facts and law correctly and to their true perspective. Accordingly, the appeal, which sans merits, deserves dismissal and is dismissed.