State of H.P. vs Naresh Kumar

R.B. Misra, J.

Cr.M.P.(M) No. 524 of 2010.

The present application has been filed for condonation of delay of 71 days. We have heard the learned Additional Advocate General, in the facts and circumstances, we are satisfied with the explanation of delay in filing the Criminal Appeal. Accordingly, delay is condoned. Application stands disposed of.

Cr.M.P.(M) No. 525 of 2010.

Heard. Leave to appeal granted. Application stands disposed of.

Cr. Appeal No. 117 of 2010.

Admitted.

The present Criminal Appeal has come up for adjudication u/s 378(3) of the Code of Criminal Procedure in reference to the judgment dated 4.9.2009, passed by Learned Special Judge, Fast Track Court, Kangra at Dharamshala, H.P., in Sessions Case No. 12-D/ VII/07, u/s 20 of the Narcotic Drugs and Psychotropic Substances Act (in short ''NDPS Act''), acquitting the alleged accused/respondent.

According to the prosecution, on 9.2.2007, police officials constituted a raiding party and apprehended the accused-respondent and on personal search of the accused-respondent, recovered 250 grams of ''charas'' from his personal custody. Two samples of 25 grams each were taken out from the aforesaid charas'' and separately sealed in separate packets. The aforesaid charas'' was taken into possession vide recovery memo by the police. A Rukka was sent to the Police Station for registration of the case. Thereafter, sealed sample was sent for the chemical examination.

After investigation, accused-respondent was charged for the offence u/s 20 of the ''NDPS Act''. In order to prove its case, the prosecution has examined as many as 8 prosecution witnesses. Whereas, the accused through his statement u/s 313 of Cr.P.C, has denied the prosecution case.

We have gone through the prosecution witnesses and materials on record, we find that in the present case two independent witnesses were not at all associated by the raiding party while searching the accused-respondent and making alleged recovery thereof. While making personal search by the police officials, the raiding party had only apprised the accused that whether he wanted to be searched by the police officials or by Gazetted Officer or by the Magistrate and on agreeing of accused-respondent, personal search was made, however, before making the personal search accused-respondent was not apprised that he has a right to be searched. In the facts and circumstances, while making personal search only on agreeing of accused-respondent but without apprising him about his right, personal search was made, as such, the mandatory requirement of Section 50 of the ''NDPS Act'' has not been complied with.

Keeping in view the discrepancies and inconsistencies in the prosecution witnesses and non association of two independent witnesses (despite the fact that independent witnesses could have been associated at the place, where search was made by the police), the learned Special Judge has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings given by learned Special Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed.

The bail bonds furnished by the accused/respondent are hereby discharged.