NITIN KHANNA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THE learned Special Judge, while holding the appellant, hereinafter referred as "the accused", guilty of the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985, in short "the Act", convicted and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of '. 1,00,000/ -, in default of payment of fine to further undergo rigorous imprisonment for a period of 2 years, for allegedly keeping in his possession 6 Kgs. of "Charas", whereas, other co -accused, namely Vinod Kumar and Amit @ Mitta, alleged suppliers were acquitted, hence the present appeal by the convict. In short, the prosecution case can be stated thus. On 5.3.2008, a police party was headed by PW21 SI Vidya Chand under the supervision of PW18 Inspector Partap Singh. They were on traffic checking and had put a Naqa 1 K.M. ahead of Bajaura on the National Highway.

(2.) FINDING prima -face a case against the accused persons, accused Nitin Khanna was charge -sheeted for the offence punishable under Section 20 of the Act, whereas, other accused persons were charge -sheeted for the offence punishable under Section 20 read with Section 29 of the Act, to which they pleaded not guilty and claimed trial.

(3.) SHRI M.S. Guleria, learned counsel duly assisted by Shri Sanjeev Kuthiala, learned counsel, forcefully argued that though it stands proved that the accused Nitin Khanna was travelling in HRTC Bus and occupying seat No. 23, but it is denied that any recovery of the contraband was effected from his possession, as alleged. It is also pointed out those so -called independent witnesses i.e. the driver and conductor of the bus had turned hostile and did not support the case of the prosecution. It is further argued that the statements of the official witnesses are contradictory. Learned counsel also took us through the statement of the witnesses to support their submissions and further argued that the police during the search of the bus started harassing the person named Shri Sanjay Abrol. On the intervention of accused Nitin Khanna, he was taken out of the bus and the bus crew took out his bag out of the luggage compartment. For about 20 minutes, he remained at barrier and thereafter taken to Police Station. During the night around 12 O'clock, police informed him that he was arrested. He alleged false implication in the case and also examined Shri Sanjay Abrol as defence witness. Our attention was also invited to the statement of PW7 Bhupinder Singh, Booking Clerk of H.R.T.C. Kullu. According to him, the bus had left Kullu at 5.30 p.m. and seat Nos. 23 and 24 were booked for Delhi as per way -bill Ext.PW7/A and further according to PW1 Joginder Kumar and PW2 Manohar Lal, the bus was detained for 30 minutes at Naqa, whereas the arrival time at Mandi was 7.30 p.m. and it had in fact reached there around 8 p.m. which fact falsified the entire prosecution case regarding recovery and arrest of the accused. PW1 Joginder Kumar and PW2 Manohar Lal also denied signing of the seizure memo aforesaid and it is also pointed out that they had deposed before the Court that they were made to sign the said documents on 9.3.2008 in Police Station itself. There has been variation in the weight of sample parcel when received for examination in the Laboratory. The learned trial Court lost sight of the contradictions appearing in the statements of the witnesses and non -appreciation of these facts has caused prejudice to the accused.