IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal No.123 of 2006. Date of decision:23.12.2011. State of H.P. … … …Appellant Versus 1. Ram Karan son of Sh.Megh Raj, R/o village Julana, Tehsil Julana, Distt.Jind (Haryana) (has been declared proclaimed offender by this Court order dated 22.9.2010). 2. Jitender Singh son of Sh.Prabhu Ram, R/o village Barauda, Tehsil Gohana, Police Station Barauda, Distt.Sonipat (Haryana). … … …Respondents Appeal under Section 378 of the Code of Criminal Procedure. Coram The Hon’ble Mr.Justice R.B. Misra,J. The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Mr.R.K. Sharma, Sr.Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General. For Respondent No.1: Mr.Vivek Sharma, Advocate, amicus curiae. For Respondent No.2: Mr.Ajay Kochhar, Advocate. Dev Darshan Sud,J. This appeal has been preferred by the State against the judgment of the learned Sessions Judge, Kinnaur acquitting the respondents for offences under Sections 20 and 29 of the Narcotic Drugs and 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 Psychotropic Substances Act, 1985 (hereinafter referred to as the `NDPS Act’). 2. The prosecution case in brief is that PW-8 SI Prittam Chand alongwith a police party was on patrol duty near Kot Nallah on 3.1.2005 when at around 2.30 P.M., Maruti Car bearing No.DL 8C-8441 was coming from Ani side and proceeding towards Loohri. He signalled this car to stop. According to the prosecution, at that time Ram Karan was driving and Jitender Singh was sitting in the car. SI Prittam Chand PW-8 asked the driver to produce the car documents/papers and enquired about the name and address of both the respondents. He inspected the car and found one green coloured polythene bag lying under/below the legs of respondent Jitender. This bag was checked and it was found to be containing charas which was in the shape of two balls which on weighing were found to be 1.100 Kg (1 Kilogram and 100 grams). Out of the seized charas, two samples of 25 grams each were separated and sealed and put inside the parcels and sealed with seal impression `P’. The residue charas was put inside the parcel and sealed with seal impression `P’. After use, the seal was handed over to HC Parkash Chand PW-1. NCB form in triplicate and recovery memo were prepared whereafter all the other necessary mandatory requirements, according to the prosecution, were complied with. In order to prove its case the prosecution produced eight witnesses. 3 3. Adverting to the evidence of the witnesses on record, the learned Court did not find any offence as made out against the accused. The learned Court considers the evidence of PW-1 HC Prakash Chand and holds that the place where the search seizure took place is at a distance of two kilometers from Loohri and admitted that the police was carrying scale and weights with them. He could not state as to whether Ram Karan was asked about possessing a valid driving licence and whether the papers of the car were taken in possession or not. It took 3 to 4 hours to complete the search and during this period no vehicle passed through that road. On the other evidence, since they are police officials they broadly supported the case of the prosecution. 4. An important fact was noticed by the learned trial Court and that is that the seal with which the packets of contraband were sealed was not produced in evidence and was stated to have been lost. On the evidence, the case of the prosecution was that seals were lying with the Head Constable Prakash Chand PW-1 who states, “The seal was given to me which I cannot produce as it has been lost by me” and Inspector Manohar Lal PW-7 of the Police who states, “I have not brought the seal in the Court today as the same has been misplaced”. Another fact highlighted was that the samples received in the laboratory were 26½ grams each though 25 grams each were taken by the police for 4 analysis. PW-4 Constable Puran Chand was deputed on 5.1.2005 for depositing it in the CTL Kandaghat which he did on 6.1.2005. In cross-examination he stated that on the intervening night of 5.1.2005 and 6.1.2005 he stayed with his relatives at Shimla and kept these samples below his pillow. Then again, adverting to the evidence of PW-8 SI Prittam Chand, in cross-examination he states that he did not take driving licence of accused-respondent Ram Karan into possession as he did not have any licence, no case was made out against him for driving a car without a licence. He then states that one Harinder had got the vehicle released from the Court on his (this witness) report. He did not make an inquiry as to how the car came to be in possession of two respondents. On the statement of PW-1 HC Prakash Chand, the Court notes that in his cross-examination he says that he cannot produce the seal. In these circumstances, the entire case was held to be without any basis and doubtful. The accused are acquitted accordingly. 5. The State relied upon a number of grounds in opposition to the decision of the learned trial Court. It is urged before us that the respondents have been found in conscious possession of a large quantity of contraband and therefore, deserve to be punished. Learned counsel submits that the weight of the samples could be increased by marginal/fractional variation due to moisture etc. There was no evidence, according to 5 the learned Senior Additional Advocate General, to hold that the sample has been tampered with and on Ex.PX the Chemical Examiner’s report that the seals were intact fortifies this fact. 6. We advert to this aspect first. We do not find any explanation on record as to how the seal has been lost. We repeat that PW-1 Prakash Chand states that he could not produce the seal because it has been lost by him, how and in what circumstances, has not been explained. We then again advert to the evidence of PW-7 Inspector Manohar Lal who says that he was posted as Inspector/SHO, Police Station, Ani. On 3.1.2005, Sub Inspector Prittam Chand has produced a sealed packet alongwith seal `P’ and NCB form and other documents. He re-sealed this parcel with seal `H’ and filled up the NCB forms. Sample of seal was taken separately and certificate was issued by him. He says that he deposited the case property with MHC Hem Raj. He then states that the case property remained intact in his custody. In cross-examination he admits that he did not interrogate the owner of the vehicle and he could not bring the seal to Court because it has been misplaced. 7. In State of Rajasthan vs. Gopal, (1998)8 SCC 449, the Court holds:- “3. In passing the order of acquittal, the High court has noted that the seizure of the narcotic substance was doubtful because the seal on the 6 sample sent for chemical analysis could not be compared with the seal on the seized article kept in the Police Malkhana because the seal on the sample sent to analyst could not be produced in the court for verification. Even the seal which was put on the seized article kept in the Police Malkhana could not be ascertained excepting the word "Ajmer". It may be stated here that since the said article had been seized on the railway platform according to the prosecution case, the seal of the Stationmaster had been used, but the Stationmaster was not examined to prove whether the seal put on the seized article and kept in the Police Malkhana really contained the seal of the Stationmaster. (p.450) 8. Adverting to the evidence of PW-4 Constable Puran Chand, we find it quite strange that he should be hanging on to the sample and seal at night in the house of his relative without depositing it in Police Station, Shimla which is the Capital of Himachal Pradesh and has ample facility of Malkhana etc. in the Police Station. 9. Lastly, adverting to Ex.PX we find that the date `10.3.2005’ contains some interpolation that is the figure `3’ seems to have been erased and re-written for which there is no explanation. 7 10. In Cr.Appeal No.391 of 2002, titled: State of H.P. vs. Subhash Sharma @ Bhasi, this Court holds:- “15. Also we find that the report of the analysis Ext. PW11/A though mentions about the presence of cystholithic hair and beams alkaline test positive but it does not say that the resin content of 28.04 was of a cannabis plant. Based upon the above, it is opined that the exhibit contained the content of charas. The cystholithic hair is a fiber which could also be found in flowering tops of the cannabis plant, but the definition of charas does not include other parts like flowering and fruiting tops, leaves or stem. The definition of charas is given in Section 2(iii)(a) of the Act. Charas, is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish. Since it does not make any mention whether this resin was of a cannabis plant. Therefore, in our opinion the report of analysis is discrepant. The Division Bench of this Court in which one of us (Surinder Singh, J.) was also one of the Members Sunil Kumar versus State Latest HLJ 2010 (HP) 207 examined almost similar reports in a Bunch matters and taking note of the aforesaid definition of charas under the Act viz-a-viz the statement of the Experts recorded during the trial as well as before this Court, held that charas should be 8 resin of cannabis plant only or the concentrated preparation and resin known as hashish oil or liquid hashish. Thus, in absence of the fact that it was also that of a cannabis plant, result of analysis cannot be said to have in conformity with the definition of charas. As such the accused persons were given the benefit of doubt and were accordingly acquitted.” 11. We find Ex.PX in this case repeats the same findings. There is, thus no merit in this appeal which is accordingly dismissed. (R.B. Misra) Judge December 23, 2011. (Dev Darshan Sud) (aks) Judge.