IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.522 of 1996 Date of decision:08.04.2010 State of H.P. ... Appellant Versus Mohd. Razak … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr.Vivek Singh Thakur, Addl. Advocate General. For the respondent: Mr.I.D. Bali, Sr.Advocate with Mr.Virender Bali, Advocate. ____________________________________________________________ Deepak Gupta, J (Oral). This appeal by the State is directed against the judgment dated 30.5.1996 passed by the learned Additional Sessions Judge, Shimla in Sessions Trial No.54-S/7 of 1993, whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The prosecution story, in brief, is that PW-8 Varinder Kumar along with PW-2 Head Constable Ramesh Kumar and three constables, namely, Jagdev Chand, Narinder 1Whether reporters of Local Papers may be allowed to see the judgment? 2 Mohan and Lachhi Ram were on patrolling duty near Subji Mandi, Shimla. When they reached Subji Mandi Chowk, one person, on seeing the police party, tried to run away. He was apprehended and interrogated. The accused disclosed his name to be Mohd. Razak. The said person was asked if he was prepared to be searched by the patrolling officer or other gazetted officer of police or the Magistrate. The accused person agreed to be searched by police officials vide consent memo Ext.PW-1/A. The accused was searched in the presence of Sh.Mahesh Kumar, PW-1 and Kishori Lal. The search of the accused led to the recovery of one green polythene envelop. Inside this polythene envelop one piece of cloth was wrapped and inside this charas was kept which was weighed and found to be 400 gms. Two samples of 50 gms. each were drawn and the bulk charas and samples were sealed with seal ‘D’ and taken into possession vide memo Ext.PW-1/B. Seal was handed over to Mahesh Kumar, PW-1. Report Ext.PW-6/A was sent to the Police Station through Head Constable Narender Mohan. Site plan was prepared. The accused person was then produced before the SHO. The case property was also produced before the SHO who re-sealed the same with 3 seal ‘VS’. Thereafter, sample was sent to the CTL, Kandaghat and it was opined vide report Ext.PW-7/C that the substance was that of charas. Hence the accused was challaned. He was acquitted by the learned trial Court on the ground that the recovery has not been proved. PW-1 Mahesh Kumar is the alleged independent witness. According to him, the police apprehended the accused at Subji Mandi Chowk. The witness went to the spot and the accused was then taken to the Police Station, Sadar, Shimla where he was asked whether he wanted to give search to some superior officer. On search of the accused, charas was recovered from a bag. In cross examination this witness states that the accused after being apprehended on the spot was straightaway taken to the Police Station and he went to the Police Station later on. He further states that the entire formalities were completed in the Police Station and charas was weighed in the Police Station. This witness further states that he does not remember who asked the accused about his consent. According to him when he reached the Police Station, the police was already writing 4 the papers. Thus, this witness has not supported the prosecution case on material aspects. Head Constable Ramesh Kumar appeared as PW-2. According to him the search was conducted at the spot and consent of the accused was itself taken on the spot and it was only after the entire investigation was completed that the accused was taken to the Police Station. This witness states that he did not know the independent witness who was called by constable Jagdev. He however admits that none of the three constables were in uniform. He has denied the suggestion that the entire investigation was done in the Police Station. According to PW-7, Varinder Kanwar, the then SHO, Sadar, Shimla on 26.9.1992 he recorded the FIR Ext.PW-6/B and according to him later in the day, the case property was produced before him which he re-packed and re- sealed with seal ‘VS’. He thereafter kept the parcel in his own custody. According to PW-3, Sansar Chand, he was handed over a parcel on 27.9.1992 by the SHO which he in turn took to the Chemical Laboratory, Kandaghat on 28.9.1992 and the parcel remained intact during this period. 5 PW-4 Gopal Singh states that he had taken a parcel on 30th September, 1992 to the CTL, Kandaghat for chemical examination. This parcel was the same which had earlier been taken by PW-3 Sansar Chand but was received back with certain objections. In cross examination, he states that he does not know what were the objections. According to him along with the parcel he took one letter and RC. The SHO should not have kept the case property in his own custody. He was required to keep it in the Malkhana and should have deposited it with the Incharge of the Malkhana. This itself is an irregularity. Even if, we ignore the aforesaid irregularity, as per the prosecution PW-3 Sansar Chand deposited a packet at CTL, Kandaghat on 28.9.1992. Thereafter, PW-4 states that on 30.9.1992 he had taken the same parcel to the Chemical Laboratory at Kandaghat. There is no material placed on record to show why and when the said parcel was returned by the CTL, Kandaghat. According to PW-3 he only deposited the parcel at Kandaghat. Where did the sample parcel remain between 28.9.1992 to 30./9.1992? The prosecution has miserably failed to show 6 that during these two days the parcel was in the custody of some official and could not be tampered with. Further more the prosecution has not produced the Malkhana register or the road certificate. Neither PW-3 nor PW-4 state that they took any sample seal impression with them. In the report Ext.PW-7/C the Chemical Examiner has certified that the seals on the sample tallied with the specimen impression of the seal separately sent. These witnesses do not state that they have taken the sample seal impression with them. Therefore, it remains unexplained as to what seal was tallied with the parcel. In view of the aforesaid discussion, we are of the considered opinion that not only is the search doubtful, but also that the link evidence is missing and the accused cannot be connected with the office. The learned trial Court was justified in acquitting the accused. There is no merit in the appeal which is dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. April 8, 2010 ( Sanjay Karol ), J. PV