Dharam Chand Chaudhary, J. - (1.)State of Himachal Pradesh aggrieved by the judgment dated 29.12.2012 passed by learned Special Judge, Sirmour, District at Nahan in Sessions Trial No. 03- ST/7 of 2010 has preferred this appeal on the grounds inter-alia that the findings of acquittal of the respondent (hereinafter referred as to the 'accused') recorded by learned trial Court are not supported by the evidence available on record and rather based upon hypothesis, surmises and conjectures. The trial Court is stated to have not appreciated the prosecution evidence in its right perspective. The findings as recorded are manifestly unreasonable and unsustainable. The testimony of the material prosecution witnesses in the absence of there being any proof of enmity with the accused has been erroneously discarded. The independent witness PW-6 Bablir Singh though has not supported the prosecution case and as such, was declared hostile, however, in his cross-examination he has admitted his signature on the seizure memo Ext. PW- 1/C, which alone according to the appellant-State was sufficient for corroboration of the prosecution case. The findings that PW-2 and PW-12 have failed to explain as to why scale could not be procured from the nearby place and what prompted the I.O to get the same purchased in the market at Rajgarh situated far away from that place are stated to be also baseless. The prosecution case that PW-2 was deputed by PW-12 either to procure scale on loan basis or if not available to purchase a new one from the market at Rajgarh is stated to be proved from the testimony of Navdeep Sahni, PW-4 and from the receipt Ext. PW4-/A. It has, therefore, been urged that on setting aside the impugned judgment findings of conviction may be recorded against the accused and also to sentence him for the commission of the offence he committed.
(2.)The accused has been booked in a case under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'NDPS Act' in short) with the allegations that a police party headed by PW-12 ASI Raj Kumar on its way from Rajgarh to Habban, when reached at Thanoh, noticed the accused walking alongside road and coming from opposite direction. On seeing the police party, he became nervous and tried to flee away. PW-12 had over powered him with the help of accompanying police officials. On inquiry, he disclosed his address and other antecedents. At that very time, PW-6 Balbir Singh also came there. He was asked to associate with the police in the investigation of the case. The accused was given option in the presence of PW-6 qua search of bag Ext. P-1, he was carrying on his back in the presence of Magistrate or nearby Gazetted Officer vide memo Ext. PW-1/A. He, however, opted for search of his bag by the police officials present there. Before resorting to conduct the search of accused, I.O. PW-12 and the members of police party including the independent witness Balbir Singh had offered their personal search to the accused, which he conducted vide memo Ext. PW- 1/B. Thereafter, the search of the bag Ext. P-1 was conducted. There were four portions of the said bag. When zip of one of the portion opened, some substance in the shape of sticks was found kept therein in a white coloured polythene bag, Ext. P- Such substance on touching, smelling and on the basis of experience was found to be charas. The weighing scale being not available there, PW-2 Constable Rajesh Kumar was deputed either to hire the same or purchase new one from the market at Rajgarh. The said witness had purchased the scale at Rajgarh from the shop of Sh. Navdeep Sahni (PW-4) vide receipt Ext. PW-4/A. When the scale was brought to the spot, the charas was weighed and found 1.500 kgs. The charas was thereafter kept in the same polythene bag, Ext. P-2 and then put in black coloured bag Ext. P-1. The bag Ext. P-1 was thereafter put in a cloth bag and sealed with impression of seal 'w'. The sample of seal Ext. PW-8/A was prepared separately and the seal after its use was handed over to Constable Maan Singh (PW-1) for safe custody. The recovered charas was taken in possession vide recover memo Ext. PW-1/E. NCB forms Ext. P-A were filled in triplicate. Since the accused was found to have committed an offence punishable under Section 20 of the NDPS Act, therefore, Rukka Ext. PW-12/A was prepared and handed over to Constable Jitender Singh (PW-3) for being taken to State Vigilance and Anti Corruption Bureau, Nahan. On the basis thereof, FIR Ext. PW-3/A was recorded by PW-9, the then Station House Officer. The endorsement Ext. PW-9/A on the back side of the Rukka was also made by this witness.
(3.)The I.O. during further course of investigation conducted on the spot had prepared the spot map. He had also recorded the statements of witnesses under Section 161 of the Code of Criminal Procedure. The accused was interrogated and arrested at 4.30 a.m. and the grounds of arrest were made known to him vide memo Ext. PW-12/D. As per the endorsement thereon, information qua his arrest was given to his real brother Baldev Singh. The accused was lodged in lock-up of Police Station, Rajgarh on 6.12.2009. The case property was handed over to MHC Police Station, Rajgarh for safe custody till the same is taken to Police Station, State Vigilance and Anti Corruption Bureau, Nahan for being produced before the Station House Officer there.