IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.469/2001 (OLD NO.511/1995) Gulshan Dhingara S/o Ganpat Rai Dhingara R/o 217 Dandipur, P.S. Kotwali, Dehradun ……… Appellant Versus The State ……… Respondent Dated: July 13, 2009 Sri L.K. Tiwari, Advocate for the appellant Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 30.3.1995 passed by Additional Sessions Judge, Dehradun in Special S.T. Nos.3/1994, State Vs. Gulshan Dhingra, whereby the learned Additional Sessions Judge convicted the accused/appellant under Section 8/20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as the Act) and sentenced him to undergo rigorous imprisonment for a period of ten years with a fine of Rs. One Lac and in default of payment of fine, the accused/appellant shall further undergo simple imprisonment for two years. 2. Heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that on 2.2.1993 S.I/In-charge R.K. Kannojia accompanied by Head Constable Rajendra Prasad, Constable Rajendra Prasad and Constable Bhanwar Singh were busy in 2 patrolling duty. When they reached at Astley Hall Tiraha then the informant (MUKHBIR) informed them that one person named Gulshan having illegal CHARAS in his possession is standing in the Children Park. Relying on this information, the police party tried to procure the public witnesses but all in vain. Then the police party took their own search by each other and when nothing illegal was found then on the pointing out of the informant, the police party at 04:50 PM apprehended the accused/appellant at Children Park. On being asked, the accused/appellant disclosed his name as Gulshan Dhingra. He was asked to give the search before City Magistrate or C.O. City. On this the accused said that he has full confidence in them and requested them to conduct his search. Then the S.I. R.K. Kannojia made search of the accused and from right side pocket of the accused, a polythene packet of green colour which contained material weighing 30 Gms., was found. The said material was smelled which thrown the smell of CHARAS. The packet of CHARAS was sealed on the same polythene and the specimen of seal (Namoona Mohar) was taken. With the above-said averments, FARD (Ext.Ka-1) was prepared by H.C. Rajendra Prasad Sharma on the dictation of SI/IC R.K. Kannojia. On the basis of FARD (Ext.Ka-1), S.I. R.K. Kannojia lodged the F.I.R. at Police Station Kotwali, Dehadun on 2.2.1993 at 06:15 PM and the Chik F.I.R. (Ext.Ka-2) was prepared by Constable Rajendra Singh. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-5. The investigation of this case was entrusted to SHO Ashok Kumar Gautam, who during the course of investigation, recorded the statements of the witnesses and prepared the site-plan of the place of occurrence, which is Ext.Ka- 6. The recovered article was sent to the chemical examiner who reported on 13.8.1993 that the material 3 examined is CHARAS. The reports of chemical examiner are Ext.Ka-3 and Ka-4. On completion of the investigation, the charge sheet was submitted by the I.O., which is Ext.Ka-7. 4. On 5.12.1994, learned Additional Sessions Judge, Dehradun framed the charge of offence punishable u/s 8/20 of the Act. The charge was read over and explained to the accused/appellant, who pleaded not guilty and claimed to be tried. 5. In order to prove its case, the prosecution has examined PW1 Sub Inspector R.K. Kannojia. 6. Thereafter the statements of the accused/appellant were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who has denied the allegations made against him. However, he has not produced any oral or documentary evidence in his defence. 7. After appreciating the entire material available on record and hearing learned counsel for the parties, learned Addl. Sessions Judge, Dehradun vide his judgment and order dated 30.3.1995 convicted and sentenced the accused/appellant as stated above. Feeling aggrieved by the said judgment and order, the accused/appellant has preferred the present appeal. 8. To prove its case, the prosecution has examined PW1 R.K. Kannojia, who has stated that on 2.2.1993 he was the In-charge of Out Post Dhara Chauki, P.S. Kotwali. On that day, he along with H.C. Rajendra Prasad, Const. Rajendra Prasad, Const. Bhanwar Singh was busy in patrolling duty. During the course of 4 patrolling, when he reached Astley Hall Tiraha then the informant informed him that one person named Gulshan is standing at Gandhi Park and he is having illegal CHARAS. Believing the said information, the police party tried to procure the public witnesses but all in vain. Then they took their own search and after getting confident that they have nothing illegal, they on the pointing out of the informant, apprehended the accused/appellant near the southern wall of Sulabh Shauchalya at 04:50 PM. The accused was told that according to the information he (accused) had illegal CHARAS in his possession. Therefore, he shall be brought before the City Magistrate or the C.O. City so that the search may be laid upon him. On that the accused said that he has full confidence in the police party and they themselves can take his search. Thereafter the search of the accused was made and from the right side pocket of the pant, a green coloured polythene was found inside which there was material of about 30 gms. weight. The said material was smelled which was throwing the smell of CHARAS. Thereafter FARD (Ext.Ka-1) was written on the spot by HC Rajendra Prasad. The recovered CHARAS was sealed on the same polythene and specimen of seal was taken. The bundle of CHARAS is Ext.1. Thereafter, the accused was arrested and brought to the P.S. Kotwali where the F.I.R was lodged by him. He has proved the Chik F.I.R. (Ext.Ka-2). 9. Thereafter the statements of the accused/appellant were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him. In reply, he has stated that the police party apprehended him from his house. He was kept in custody at police station for one day and thereafter implicated 5 false case against him. However, he has not produced any oral or documentary evidence in his defence. 10. Learned counsel for the accused/appellant at the outset argued that the link evidence is missing in this case. I find force in the argument raised by learned counsel for the accused/appellant due to following reasons:- (i) In the recovery memo (Ext.Ka-1) as well as in the statement of P.W.1 R.K. Kannojia it has nowhere come that the sample for chemical examination was drawn from the recovered CHARAS and that the same was sealed separately. Only it has come that material recovered from the possession of the accused/appellant was sealed in same polythene, which reveals that no separate sample was drawn from the so-called recovery material on the spot in order to send the same for chemical examination. (ii) It is not known where the seized CHARAS was kept after it was recovered from the possession of the appellant. It is also not known that who had carried it from the place of recovery to the place of storage. If it is considered that the seized CHARAS was deposited in the Malkhana then in that event also, it is not known when it was deposited in the Malkhana and when it was taken from Malkhana to produce before the court below and also to send it for chemical examination. (iii) No evidence was also adduced as to who had carried the CHARAS in question to the Chemical Examiner. The said CHARAS is said to have been recovered on 2.2.1993 and the report of chemical examiner is dated 13.8.1993 6 from which it appears that it was received in the office of chemical examiner by means of letter dated 16.2.1993. No evidence is given to show that the seized CHARAS remained intact and nobody tampered with it during the period 2.2.1993 to 16.2.1993. In view of this, it cannot be said that the same CHARAS was sent to the chemical examiner for his report which was recovered from the possession of the appellant. 11. In support of arguments, learned counsel for the accused/appellant has cited a judgment reported in 1999 (38) ACC page-181 “Shiv Charan Vs. State” and has relied on para-6, which is reproduced hereunder:- “6. A perusal of the record of the case shows that the prosecution had not given link evidence. It is not known where the seized Charas was kept after it was recovered from the possession of the appellant. It is also not known that who had carried it from the place of recovery to the place of storage. No evidence was also adduced as to who had carried the Charas in question to the Chemical Examiner. The said Charas is said to have been recovered on 11.10.1990 and the report of chemical examiner is dated 26.08.1991 from which it appears that it was received in the office of chemical examiner by means of letter dated 5.11.1991. No evidence is given to show that the Charas in question remained intact in the sealed bag for a period of more than one year i.e. from 11.10.1990 to 5.11.1991. In view of this, it cannot be said that the same Charas was sent to the chemical examiner for his report which was recovered from the possession of the appellant. Hon’ble the Supreme Court in the case of Valsala Vs. state of Kerala, has held that in the absence of 7 link evidence, the conviction under the N.D.P.S. cannot be sustained.” 12. He has further cited a judgment “State of Rajasthan Vs. Gurmail Singh” reported in 2005 SCC (Cri) 641 and has relied on Paras-3, 4 and 5, which are reproduced hereunder:- “3. ...we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20.5.1995, the malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW 6 on 5.6.1995. We further find that no sample of the seal was sent alongwith the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent. 4. We find no error in the judgment of the High Court. 5. This appeal is, therefore, dismissed.” 13. Learned counsel for the accused/appellant further cited a judgment reported in 2005 (1) U.D.-727 of Hon’ble the Division Bench of this High Court “Mr. Harman Chrust Vs. State” in which reliance is placed on para-25, which is reproduced hereunder:- “25. Another point, which creates suspicion about the authenticity of the prosecution story, it that the recovery and seizure has not been made in accordance with the standing instruction no.1/88 dated 8 15.03.1988 issued by the Narcotics Control Bureau, New Delhi. Clause 1.9 of the Instructions reads as under:- “1.9 It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, Panchnama witness and seizing officer and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the; duplicate of each of the samples. The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop may be sealed properly. Such sealed envelop may be marked as original and duplicate. Both the envelops should also bear the S.No. of the package(s) container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seal should be legible. This envelope alongwith test memos should be kept in another envelope which should also be sealed and marked “Secret-Drug sample/Test Memo” to be sent to the concerned chemical laboratory.” 14. Reliance is also placed on Clause 2.9 Standing Order no.1/89, which is reproduced as under:- “2.9. The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop which may be sealed properly. Such sealed envelop may be marked as original and duplicate. Both the envelops should also bear the No. of the package(s) container(s) from which the sample will also have a reference of the test memo. The 9 seal should be legible. This envelope alongwith test memos should be kept in another envelope which should also be sealed and marked “Secret-Drug sample/Test Memo” to be sent to the chemical laboratory.” 15. Thus from the above-said discussion and the judgments (supra), the case of the prosecution is not proved by the link evidence that the said CHARAS, shown to be recovered from the possession of the appellant/accused on the alleged date i.e. 2.2.1993, was the same CHARAS which was sent for chemical examination. 16. Learned counsel for the accused/appellant further submitted that compliance of Section 57 of the Act was not made at the time of making the arrest. Section 57 of the Act is reproduced as under:- “57. Report of arrest and seizure:- Whenever any person makes any arrest or seizure, under this Act, he shall within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.” 17. In the documentary or the oral evidence it has not come that after the arrest and seizure within 48 hours next after the said arrest or seizure, the report of the said purpose was made to the immediate superior officers. Though the compliance of this provision is not mandatory but it is directory. In this regard, reliance is placed on the judgment of “Gurbax Singh Vs. State of Haryana” reported in (2001) 3 Supreme Court Cases 28. Para-9 of this judgment is reproduced hereunder:- “9. ...It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions 10 would not ipso facto violate the trial or conviction. However, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, IO has admitted that seal which was affixed on the muddamal article was handed over to the witness PW1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the NDPS Act. The prosecution has not led any evidence whether the chemical analyzer received the sample with proper intact seals. It creates a doubt whether the same sample were sent to the chemcial analyzer. Further it is apparent that the IO has not followed the procedure prescribed under Section 57 of the NDPS Act of making full report of all particulars of arrest and seizure to his immediate superior officer...” 18. Having given careful submissions made by learned counsel for the parties and in the light of the evidence and in the background of well-settled proposition of law, it is clear that the prosecution has failed to prove the case against the accused/appellant beyond reasonable doubt. The trial court was in error in brushing aside serious infirmity in the prosecution case. 19. Accordingly, the appeal is allowed. The judgment and order dated 30.3.1995 passed by Additional Sessions Judge, Dehradun in Special S.T. Nos.3/1994, State Vs. Gulshan Dhingra, is hereby set aside. Consequently, the conviction and sentence as directed by the court below, which has been discussed above, is also set aside. The accused/appellant Gulshan 11 Dhingra is on bail. He needs not surrender unless wanted in any other case. 20. A copy of this order shall be sent forthwith to the trial court concerned for compliance of the order. (Dharam Veer, J.) July 13, 2009 RG