State of Himachal Pradesh vs Gopal Singh

V.K. Ahuja, J.—This is an appeal filed by State of Himachal Pradesh u/s 378 of the Cr.P.C. against the judgment of the court of learned Sessions Judge, Kangra at Dharamshala, dated 1.11.2002, vide which both the accused were acquitted of the charge framed against them u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the Act.

Briefly stated, the facts of the case are that on 2.11.2001, traffic constable PW-7 Shiv Kumar was on traffic duty at Kotwali Bazar, Dharamshala Chowk. A Delhi bound bus from Mcleodganj reached at Kotwali Bazar Chowk at 7.30 p.m. and on stopping, a person attempted to board the same, but when he saw constable Shiv Kumar, instead of entering the bus, started walking. The said person was accused Gopal Singh. His conduct made Shiv Kumar, Constable, suspicious, who followed the accused. On the way, another person, namely, respondent Khalbahadur, met him. Accused Gopal Singh was carrying a leather bag and Khalbahadur was also having a Pitthu type bag and when they saw Shiv Kumar approaching, they attempted to run away, but were overpowered by Shiv Kumar. A suspicion was raised that they were possessing something and Constable Shiv Kumar took a lift on a passing vehicle and went to Circuit House, Dharamshala, where Superintendent of Police, Kangra was staying. The Superintendent of Police was out of station. So, Shiv Kumar telephonically informed the SHO, Police Station, Dharamshala about bringing of two suspects. A rapat Ext.PC was entered by the PW-3 MHC Tibti Ram and Dy.S.P., Kangra PW-8 Omapati Jaswal and PW-9 S.I. Purshottam Dass proceeded to the Circuit House, Dharamshala. Option was given to the accused vide Ext.PW-9/A if they wanted to be searched by a Gazetted Officer and consent of the accused vide Ext.PW-8/A was obtained. Both the accused were searched in presence of PW-1 Bidhi Singh and PW-2 Bidhi Chand, Chowkidar of the Circuit House. On checking the bag carried by Khalbahadur, 1.350 kg. charas was recovered and from the bag of Gopal Singh, 1.150 kg. charas was recovered. Two samples each weighing 25 grams were taken from both the bags which were sealed at the spot as per procedure. On completion of investigation, the challan was filed before the learned trial Court, who tried the respondents u/s 20 of the Act leading to their acquittal.

The present appeal is being heard only against respondent Gopal Singh as the appeal against respondent Khalbahadur has already been rejected by this Court vide order dated 23.5.2003.

We have heard the learned Additional Advocate General for the appellant and Mr.G.R. Palsara, Advocate, for the respondent, and have gone through the record of the case.

On appraisal of the record of the case, it is clear that the learned Sessions Judge had observed that in the State of Himachal Pradesh, police officials above the rank of Head Constable have been empowered to investigate the offences u/s 20 of the Act. Therefore, the action of Shiv Kumar in apprehending the respondent and taking him to the Circuit House was held to be not having sanctity of law. The learned trial Court had clearly observed that the jeep driver in which both the accused were taken to the Circuit House was a material witness who has been withheld by the prosecution. Therefore, an adverse inference was rightly drawn against the prosecution. PW-1 Bidhi Singh and PW-2 Bidhi Chand both have stated that there was only one bag with the respondents and one charas packet was carried by Constable Shiv Kumar in his own hand. This is contrary to the version of Shiv Kumar, Constable, who appeared as PW-7, that accused Khalbahadur was having a Pitthu type bag and accused Gopal Singh was having a leather bag. It was observed by the learned trial Court and rightly so that this fact could have been clarified by the driver of the jeep if the charas was also in the envelope being carried by the accused. Both the witnesses have not supported the prosecution story. There is also observation of the learned trial Court that in the facts of the case, there should have been compliance of Section 42 of the Act, which provisions are mandatory since no special report was sent to the immediate superior officer by any of the Investigating Officer.

On the basis of the discussion made by the learned trial Court and in view of the infirmities in the prosecution case, the guilt of the respondent cannot be said to have been conclusively established and, therefore, the findings cannot be said to be perverse calling for an interference by this Court. Consequently, the appeal filed by the appellant-State is dismissed. The bail bonds furnished by the respondent shall stand discharged.