IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 90 of 1999. Decided on 26.05.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Randhir Singh. …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellant : Mr. Vivek Thakur, Additional Advocate General. For respondent : Mr. M.L. Sharma, Advocate. ---------------------------------------------------------------------------------------- Deepak Gupta, Judge(Oral): This appeal by the State, is directed against the judgment dated 30.11.1998, delivered by the learned Additional Sessions Judge, Shimla in Sessions Trial No. 31-S/7 of 1995, whereby the accused was acquitted of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”). 2. The prosecution story, in brief, is that on 19.03.1994, PW-7 Sub-Inspector Brij Mohan was on petrol duty alongwith other police officials, including PW-1 Constable Ishwer Singh in Sainj area. They saw the accused coming from Balag 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. side near Mai-Pul. On seeing the police party, he tried to run away. This aroused the suspicion of the police officials, who apprehended him. He disclosed his name to be Randhir Singh (accused). He was given an option of being searched, purportedly under Section 50 of the Act. On search of the bag being carried by him, a polythene bag was recovered and inside this polythene bag, there was Charas. Thereafter, the police officials alongwith the accused and the independent witnesses came to Sainj, where the Charas was weighed after taking scales and weights from Shri Parkash Chand (PW-5). Out of the recovered Charas, two samples of 25 grams each were drawn and sealed with seal ‘T’. The remaining Charas was also sealed separately with the same seal. The entire Charas was taken into possession vide memo Ex.-PW1/A. Specimen of seal impression Ex.-PW7/A was prepared. The accused was also informed about the grounds of arrest and a rukka Ex.-PW 2/A was sent to the Police Station, on the basis of which, F.I.R. Ex.-PW2/B was recorded. On the same date itself, one sample was sent to C.T.L., Kandaghat and vide report Ex.-PW4/A of the Chemical Examiner, it was found that the sample was that of Charas. On this basis, the challan was filed against the accused. The accused pleaded not guilty and claimed trial. After trial, he was acquitted. Hence, the present appeal by the State. 3. We have heard Mr. Vivek Singh Thakur, learned Additional Advocate General on behalf of the State and Mr. M.L. Sharma, learned counsel for the accused, and have gone through the entire record of the case. 4. The learned trial court has acquitted the accused, mainly on three grounds; (i) that the provisions of Section 50 of the Act have not been followed and the search has been conducted in violation of Section 50 of the Act; (ii) that the link evidence is missing to connect the report with the sample in question; and (iii) that the recovery itself has not been proved beyond reasonable doubt. 5. As far as Section 50 of the Act is concerned, the same has no application to the facts of this case since admittedly the contraband was recovered from the bag being carried by the accused. This point is fully covered by the decision of the Apex Court in State of Himachal Pradesh versus Pawan Kumar, Latest HLJ 2004 SC(2) 1247. 6. Even if we presume that the recovery was made in accordance with law, then also the accused has to be acquitted since the prosecution has failed to link the report Ex.-PW4/A with the Charas sealed at the spot. PW-7 S.I. Brij Mohan stated that the sample parcel as well as the bulk parcel were sealed with seal ‘T’ and then handed over to PW-4 Ram Saran, who affixed his own seal on the parcels. 7. PW-4 Ram Saran stated that he re-sealed the parcels with seal ‘R’. He did not say that fresh parcels were made. According to his statement, he re-sealed the parcels with seal ‘R’, meaning thereby, that now parcels should have two sets of seals on them, i.e., seal ‘T’ and seal ‘R’. It would be pertinent to mention that PW-4 did not state that any seal impression of seal ‘R’ was prepared. 8. PW-2 Shri Mohinder Kumar, who was the M.H.C. in Police Station, Theog at the relevant time, stated that PW-4 Ram Saran deposited a sample parcel sealed with seal ‘R’ with him, which he kept in his safe custody. There is no mention of seal ‘T’ being affixed on the parcel. This witness also clearly stated that other than the sample, no case property or F.S.L. form was deposited with him. 9. PW-3 Constable Rajinder Kumar took the sample parcel from the Police Station to C.T.L., Kandaghat on 19.03.1994 itself. According to him, the parcel only had one seal, i.e., seal ‘R’. Other than the parcel, nothing else was sent with him. 10. The report Ex.-PW4/A has been issued on the N.C.B. form, purportedly prepared by PW-4. In his statement, P.W.-4 did not say that he sent any form. PW-2 and PW-3 had categorically stated that neither any form nor the seal impression was sent to C.T.L., Kandaghat. This raises the question as to from where this form came into possession of the C.T.L. Kandaghat? There is no answer to this question. In the report of the C.T.L., Kandaghat, there is a stamp in which it is certified that “the seal/seals on the sample tallied with the specimen impression of seal sent separately”. However, when no seal impression was sent, as admitted by PW-2 and PW-3, the question of such certificate being issued, did not arise. It is obvious that this certificate is incorrect and, thus, a doubt is cast on the report itself. 11. As held above, the sample deposited with the M.H.C. PW-2 Mohinder Kumar did not bear seal ‘T’. Except for sample, nothing else was deposited with him. There is no explanation as to where seal ‘R’ disappeared. This creates a doubt that the sample may have been tampered with, especially when the other evidence to link the sample with the report is missing. PW-3 stated that the sample was handed over to him on 19.03.1994, but he deposited the same on 21.03.1994 with C.T.L., Kangaghat. He does not even state that when the sample remained with him, it was not tampered with. In view of the above discussion, we find no merit in this appeal, which is accordingly dismissed. Bail bonds are ordered to be discharged. (Deepak Gupta), Judge (Rajiv Sharma) Judge May 26, 2010. (bhupender)