STATE OF HIMACHAL PRADESH Vs. SALEEM KHAN ALIAS VISHAL BARDER

JUDGEMENT

(1.) This appeal by the State is directed against the judgment dated 1.5.2003 passed by the learned Sessions Judge, Kullu, in Sessions trial No. 64/02 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). Briefly stated the prosecution story is that on 15.2.2002 PW-9 S.I. Tameshwar Singh alongwith PW-4 HC Chaman Lal, HHC Om Prakash, constable Bachiter Singh, PW-5 constable Mori Ram, and constable Chand Prakash were present at Dalashni bridge where they had put up a barrier and were carrying out patrolling duty. PW-9 Tameshwer Singh, PW-4 Chaman Lal and Om Prakash remained at Dalashni bridge and the other members of the party proceeded towards Tharash. At about 4.30 a.m. the members of the patrolling party who had left towards Tharash sent a wireless message that they had tried to stop a jeep but that jeep had not stopped and was going towards Dalashni bridge. This jeep bearing registration No. HP-34-4772 was stopped by PW-9, PW-4 and HHC Om Prakash when it reached Dalashni bridge. When the jeep was checked one person was found sitting by the side of the driver and two persons were sitting in the rear seat of the jeep. The person sitting by the side of the driver disclosed his name to be Vishal Barder, resident of Maharashtra. The other two persons disclosed their names to be Jeet Ram and Inder Singh. According to the prosecution all these three persons were having one bag each. The bag being carried by Vishal Barder @ Saleem Khan was searched. In addition to some items of clothing there were two packets of charas, which on weighment was found to weigh 4.5 kilograms. After weighment two samples of 25 gram each were drawn and thereafter two samples and the remaining bulk charas were packed in three separate packets and sealed with seal bearing impression "A" and sample seal impression Ext. PW-9/A was retained. Thereafter, bag of Jeet Ram was searched and inside the bag there was one packet of charas hidden under the items of clothing was found and on weighment this charas was found to weigh two kilograms. After weighment two samples of 25 gram each were drawn and thereafter two samples and the remaining bulk charas were packed in three separate packets and sealed with seal bearing impression "A" and sample seal impression Ext. PW-9/A was retained. Thereafter bag being carried by Inder Singh was searched and there was one blanket and a sheet in the bag and below this one polythene packet was kept which contained charas, which on weighment was found to be two kilograms. After weighment two samples of 25 gram each were drawn and thereafter two samples and the remaining bulk charas were packed in three separate packets and sealed with seal bearing impression "A" and sample seal impression Ext. PW-9/A was retained. After recovery of the entire charas the accused were arrested and other codal formalities were completed at the spot. The driver of the jeep Gambhir Chand was also made co-accused. On the same day after the investigating party reached the police station PW-9 deposited entire case property with PW-6 Jindu Ram who resealed the same with seal impression "H". He then deposited the same with PW-3 MHC Bhagat Ram who on 17.2.2002 sent three sample parcels through PW-2 HHC Shayam Lal to CTL, Kandaghat. The chemical examiner vide his report Ext. PA, Ext. PB and Ext. PC opined that the sample was of charas and on this basis the accused were charged of having committed the aforesaid offence. The accused pleaded not guilty and claimed trial.

(2.) The learned trial Court held that the prosecution has failed to prove the recovery and the link evidence is also missing and therefore, acquitted the accused. Hence, this appeal by the State.

(3.) The main witnesses of the prosecution are PW-9 S.I. Tameshwar Singh, PW-4 H.C. Chaman Lal and PW-5 constable Moti Ram.