Laxmi Narain vs State of Haryana

T. H. B. Chalapathi, J.

The appellant has been convicted for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter as the ''Act'') and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. 1,00,000/.

According to the case of the prosecution, head constable Kamlesh Kumar along with head constable Mukhtiar Singh and constable Baljit Singh was present on ''T'' point of the RohtakGohana Road near bus stop of village Jassia at about 3.15 p.m. on 1.1.1986, he noticed the accused coming on foot by road from Gohana side. On seeing the police party the accused turned towards school giving rise to suspicion. Then the police party apprehended him and found charas wrapped in a piece of newspaper in his possession. The charas weighing 95 grams. The head constable took five grams as sample out of the same and the remaining charas and the sample were separately sealed which were attested by Baljit Singh constable and Mukhtiar Singh, head constable. A case was registered against the accused under the Punjab Excise Act and after completion of investigation, a chargesheet was filed in the Court of Addl. Chief Judicial Magistrate, Rohtak who committed the case to the Court of Sessions. The learned Addl. Sessions Judge, Rohtak framed charge under Section 20 of the N.D.P.S. Act against the accused, to which he pleaded not guilty. In order to prove the guilt of the accused, the prosecution examined two witnesses and marked documents. On a consideration of the evidence on record, the learned Addl. Sessions Judge, Rohtak convicted and sentenced the accused as stated above. Aggrieved by the same, the appellant preferred the above appeal.

It is to be seen whether the conviction and sentence imposed on the accused can be sustained. The case was originally registered under the Punjab Excise Act, on the ground that the accused was apprehended and 95 grams charas was recovered from his possession. It may be mentioned here that originally the case was registered under the Punjab Excise Act though the Narcotic Drugs and Psychotropic Substances Act, 1985 came into force by then. The only evidence adduced by the prosecution is that of the head constable Kamlesh Kumar who apprehended the accused and recovered the charas. The evidence of PWs. 1 and 2 clearly show that they reached the bus stop in order to go to village Jassia as there was no tempo available on the bus stop. PW 1 and 2 stated that no witness was available but it is difficult to believe their version. The incident took place at about 3.00 p.m. near the bus stop, therefore, it is not believable that no person was available. It is not in evidence whether PW 1 and PW 2 made any attempt to secure the presence of an independent witness before making search. The said constable who is stated to have been present at the time of the incident were not examined. PWs 1 and 2 have not given any explanation as to why they suspected the accused. As already stated, the case was not investigated under the N.D.P.S. Act and the procedure laid down in the Act has not been followed. It does not appear that any report was sent to the superior officers. When the case was not investigated under the provisions of NDPS Act, it is difficult to sustain conviction and sentence. On a careful reading of the evidence of PW 1 and PW 2 I am not able to place any reliance on their evidence. Their evidence is not corroborated by any independent circumstances. I am, therefore, of the opinion that the conviction imposed by the learned Addl. Sessions Judge on the accusedappellant is liable to be set aside. The appeal is accordingly allowed and the conviction and sentence imposed on the appellant by the learned Addl. Sessions Judge are hereby set aside.