IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 261 of 2002 Date of Decision 1st August, 2011 ________________________________________________________ State ….Appellant Versus Raj Kumar and others ….Respondents. ________________________________________________________ Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ________________________________________________________ For the Petitioner: Mr. R.K. Sharma, Sr. Additional Advocate General. For Respondent Nos 1 & 3: Mr. Y.P.S. Dhaulta, Advocate. For Respondent No.2: Mr. M.S. Guleria, Advocate. For Respondent No.4: Mr. S.D. Vasudeva, Advocate. ____________________________________________________________ Dev Darshan Sud, J(oral) The State challenges the acquittal of the respondents herein for offences under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as ‘the Act’). The case of the prosecution is that on 14.11.2000 at around 10 P.M. 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 taxi No. HP-02-02541 was intercepted by the police at Naka near Bagitar tunnel. The vehicle was found to be carrying 2 Kgs. 600 grams of Charas which was recovered. The four respondents were travelling in this car. 2. The learned Sessions Judge has acquitted all four accused/respondents on two grounds. (i) That there is non-compliance of provisions of Section 50 of the Act and (ii) that there were contradictions in the statements of the witnesses and it has not been established on record as to in whose conscious possession the Charas was recovered from. 3. Learned Additional Advocate General submits that the learned trial Court has committed a grave error in as much as the provision of Section 50 of the Act is neither applicable nor attracted since the contraband was found in the vehicle. He submits that contradictions in the statements are not of a nature which are fundamental and go to the very root of the case so as to destroy the entire prosecution case. He refers to the decisions of the Supreme Court in Dehal Singh vs. State of Himachal Pradesh (2010) 9 SCC 85, Dharampal Singh vs. State of Punjab 2010 (9) SCC 608 and Surajmal 3 Kanaiyalal Soni vs. The State of Gujarat, 1991 Cri.L.J. 1483. 4. Before proceeding with the case further we had by our order dated 6.7.2011 directed the prosecution to produce the road certificate and the malkhana register for the reason that Ext.PK contains material contradictions. Ext.PK is the NCRB Form which was prepared on the spot at the time of seizure. It shows that two samples of 20 grams each of Charas were sealed and were sent for analysis. What surprised us is that in the analysis, the weight of the sample received shown is 16.370 grams. The report neither mentions the number of First Information Report nor the impression of seal or the facts that the samples were found intact. This raises a grave and serious doubt in our minds and for this reason the two documents namely road certificate and malkhana register have been summoned by us. 4. We find that there is a major contradiction in the case of prosecution. Merely filing the report which is perse admissible in evidence is not sufficient for proving the facts constituting the crime. We must express our deep anguish in the manner in which the Public Prosecutor has conducted this case without in 4 any manner linking the sample seized from the accused with the seizure made as also the identification of seals and weight of the sample. There is no evidence on record to show as to how Ext.PK, the malkhana register as also the road certificate examined by us record the sample of 20 grams of contraband sent for analysis, which was found to be 16.370 grams by the Chemical Examiner. When considered in totality of the facts and circumstances of the case i.e. the non-identification of the seal including the weight of samples and discrepancy in the form Ext.PK as also the report of Chemical Examiner, we do not find that any case having been made out against the accused. This appeal is accordingly dismissed. Bail bonds furnished by the respondents are discharged. (R.B. Misra) Judge August 1st ,2011 (Dev Darshan Sud), ms Judge