IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 1699 OF 2001 (OLD NO.1147 of 1997) Om Prakash Sharma & another ……… Appellants Versus The State ……… Respondent Dated: July 1, 2010 Sri Kailash Chand Joshi, amicus curiae for the appellant Sri Amit Bhatt, Addl. GA for the State HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant under Section 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 27.05.1997 passed by the Additional Sessions Judge, Dehradun in Special Sessions Trial No.13 of 1994, State v. Om Prakash Sharma and Special ST No.14/1994, State Vs. Ram Milan Gupta, whereby the learned Additional Sessions Judge has convicted the appellants/accused Om Prakash Sharma and Ram Milan Gupta under Section 8/22 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the Act’) and sentenced each of them to undergo rigorous imprisonment for a period of 10 years along with fine of Rs.1,00,000/- each and in case of default in the payment of fine, further two years’ imprisonment was awarded to each of the appellant/accused. 2. Appeal preferred by the appellant no.2-Ram Milan Gupta already stood abated vide this Court’s order dated 20.6.2008 in view of the report dated 3.9.2007 submitted by the CJM, Gorakhpur that the appellant /accused Ram Milan Gupta died on 23.9.1999 in Bareilly Jail. 3. I have heard learned Counsel for the parties and perused the entire material available on record. 4. In brief, the prosecution case is that on 29.1.1994, PW1 S.I. Sita Ram Verma along with Constable Harlal Singh, H.C. Raja Ram Sharma, Constable Harveer Singh, Constable Aadil Ahmed, Constable Muntazir Ahmed (PW2) and Constable Suresh Pal Singh was busy in maintaining law and order and peace at Railway Station Dehradun. On the information of the informant, the appellants/accused Om Prakash Sharma and Ram Milan Gupta (now died) were arrested by the police party by using necessary force. It was also stated that the appellants- accused were asked to be searched before a Gazetted Officer but they told the police personnel that he had faith on them and they might search him. On the search of appellant/accused Om Prakash Sharma, in polythene of biscuit, from his right pocket, Five Pairs of cream biscuit and from his left pocket, 10 Tablets of 2 M.G. of LARPOSE- 2 were recovered. From the possession of the appellant/ accused Ram Milan (now died), likewise in a polythene of biscuit, three pairs of cream biscuits and powder of biscuits and from his left packet of shirt, Nine tablets of 2 M.G. of ATIVAN, LORAZEPAM were recovered. The appellants/accused disclosed that the said biscuits were filled with intoxicated tablets. The recovered biscuits, tablets, their packets along with polythene were sealed separately in clothes and specimen of seal was accordingly prepared and Fard of recovery, Ex.Ka-1 was prepared. Along with the recovered articles, the appellants-accused were taken to the P.S. GRP, Dehradun where Chik FIR was prepared on the basis of recovery memo on 29.1.1994 at 8:55 P.M. by Constable Clerk Chandrapal Singh Malik, that Chik FIR is Ex.Ka-2. Investigation of this case was entrusted to SHO V.P. Singh (PW3), who during the course of investigation inspected the place of occurrence and prepared the site plan of the place of occurrence, which is Ex.Ka-3. The recovered contraband was also sent for the chemical examination and the report given by Joint Director, Scientific Laboratory, Agra is Exs.Ka-7 and Ka-8. During investigation, the I.O. recorded the statements of witnesses and on completion of investigation; he filed the charge sheets against the appellants-accused in the court, which are Ex.Ka-4 (Om Prakash Sharma) and Ex.Ka-5 (Ram Milan Gupta). 5. On 16.06.1994, learned Ist Additional Sessions Judge, Dehradun framed the charge for the offence punishable under Section 8/22 of the Act against the appellant/accused. The charge was read over and explained to the appellant/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW1 S.I. Sita Ram Verma, PW2 Constable Mutazir Ahmed, PW3 SHO V.P. Singh, I.O. of the case and PW4 Constable Rajveer Singh. 7. Thereafter, the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who has denied the allegations made against them and stated that they have been falsely implicated. However, in defence, the appellant/accused did not produce any oral or documentary evidence. 8. After appreciating the evidence and after hearing learned Counsel for the parties, learned Additional Sessions Judge, Dehradun vide judgment and order dated 27.05.1997 convicted and sentenced the appellants/ accused as discussed above. Against the aforesaid judgment and order, the present appeal has been preferred. 9. To prove its case, the prosecution has examined PW1 S.I. Sita Ram Verma who stated that on 29.1.1994 he was posted as S.I. at P.S. GRP Dehradun. On that day at about 5:00 P.M. he along with H.C. Harlal Singh, H.C. Raja Ram Sharma, Constable Harbir Singh, Constable Muntazir Ahmed, Constable Aadil Ahmed and Constable Sureshpal Singh was busy in law and order and maintaining peace. Thereafter, on the basis of the information by an informant, he along with the above-said police officials arrested the appellants/accused at about 7:40 PM at the railway station by using necessary police force. When the appellants- accused were asked to be searched before a Gazetted Officer, then they told the police that they may take their search as they had full faith on them. On the search of the appellant/accused Om Prakash Sharma, in a polythene of biscuit, five pairs of cream biscuits and 10 Tablets of 2 MG of LARPOSE were recovered. From the search of the appellant-accused Ram Milan Gupta (now died), from a polythene of biscuit, three pairs of biscuits of cream orange and some broken biscuits and powder was found. From the left pocket of his shirt, Nine tablets of ATIVAN LAROZEM of 2 MG were also found. Accordingly, the appellants/ accused were arrested on the spot and the recovered contraband was sealed and specimen of seal was prepared and Fard of recovery Ex.Ka-1 was prepared. CHIK FIR of this case was prepared by Constable Chandrapal Singh. 10. PW2 Constable Muntazir Ahmed also fully corroborated the evidence of PW1 SI Sita Ram Verma. 11. PW3 SHO V.P. Singh, I.O. of the case, who stated that investigation of the case was taken by him. During investigation, he inspected the place of occurrence and prepared the site plan Ex.Ka-3. During investigation, he sent the recovered articles of this case for chemical examination on 31.1.1994 through H.C. Rajaram Sharma. He also recorded the statements of the witnesses during investigation and on completing the investigation, he filed the charge sheet against the appellants/accused, which is Ex.Ka-4 and Ex.Ka-5. 12. PW4 Constable Rajveer Singh who stated that on 29.1.1994 he was posted in P.S. GRP. He proved the entry made by C/C Chandrapal Singh in the G.D. Ex.Ka.6. He also signed on that G.D. 13. Thereafter, the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who has denied the allegations made against them and stated that they have been falsely implicated. However, in defence, the appellant/accused did not produce any oral or documentary evidence. 14. Learned amicus curiae for the appellant/ accused argued that the prosecution has not proved its case beyond reasonable doubt against the appellant- accused and it was not proved by the prosecution that the recovered contraband shown from the possession of appellants-accused was the same which was sent for chemical examination in the laboratory and for that even no link evidence was produced by the prosecution. I find substance in the argument put forth by learned amicus curiae for the appellant/accused due to the following reasons: (i) That there is no evidence in the file that when this recovered contraband, was deposited in the Maalkhana and when it was taken from the Maalkhana and the same was put up before the competent court to send it to the laboratory for the chemical examination. (ii) That there is no documentary evidence or the copy of G.D. or any other evidence produced by the prosecution which could prove that who has deposited the said recovered contraband in the Maalkhana and who had taken the same from Maalkhana to the court and from court to the laboratory. (iii) That it has come in the evidence of PW3 SHO V.P. Singh that the recovered contraband was sent for the chemical examination through H.C. Rajaram Sharma on 31.1.1994, but the said head constable was not examined in the trial court. Even as per the evidence of the I.O., the recovered contraband was sent on 31.1.1994 while as per the report of Chemical Laboratory, the recovered goods were received in the Laboratory on 3.2.1994. There is no oral or documentary evidence produced by the prosecution to prove that where the recovered contraband remained from 31.1.1994 till 3.2.1994 particularly in view of the fact that the contraband was sent from Dehradun to Agra, which is only about a distance of 10 hours journey. Therefore, this delay of three days is not explained by the prosecution either by any oral or by any documentary evidence, which goes to further create a reasonable doubt in the prosecution story as to whether from 31.1.1994 till 3.2.1994, the goods was remained intact and nobody was allowed to tamper with it. Even it was not explained whether this contraband was kept intact in Maalkhana. (iv) That it has come in the evidence of PW1 S.I. Sita Ram Verma in the court that when the contraband recovered was produced in the court, that was in the shape of powder while the recovery was shown of Five pairs of Biscuits, which also creates a reasonable doubt whether the contraband produced in the trial court was the same which was said to be recovered from the appellant/accused. Even at the time of recovery, as many as 10 Tablets of LARPOSE of 2 MG were said to be recovered from the possession of the appellant/accused but in the trial court, only –9- Tablets were produced, which further weakens the prosecution story. Hence, it also creates serious doubt on the prosecution story that the articles which were sent to the laboratory were the same articles which were said to be recovered from the possession of the appellant /accused. (v) That it was stated in the recovery memo Ex.Ka.1 that specimen of seal was prepared on the spot, however no specimen of seal was filed by the prosecution in the trial court. (vi) That the prosecution has not filed any evidence in the file that the recovered contraband was kept intact in the Maalkhana. It has also not come into evidence that for what period the said article remained in the Maalkhana and during that period, the same remained intact and no tampering had taken place with that. (vii) That the incident took place at 7:40 P.M. at the Dehradun railway station but the police party failed to produce any independent eyewitness. 15. In support of his arguments, learned amicus curiae for the appellant cited a judgment reported in 1999 (38) ACC 181, Shiv Charan Vs. State and relied heavily on para 6 of this judgment, 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 link evidence, the conviction under the N.D.P.S. cannot be sustained.” 16. He has further placed reliance on the judgment delivered by Hon’ble Apex Court in the case of State of Rajasthan Vs. Gurmail Singh reported in 2005 SCC (Cri) 641. Para 3, 4 and 5 of this judgment are relevant and the same 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.” 17. In support of his arguments, learned amicus curiae for the appellant has further placed his reliance on the judgment of Hon’ble Division Bench of this High Court in Mr. Harman Chrust v. State reported in 2005 (1) U.D.- 727, wherein at para 25 it has been observed as under:- “25. Another point, which creates suspicion about the authenticity of the prosecution story, is that the recovery and seizure has not been made in accordance with the standing instruction no.1/88 dated 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 witnesses 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.” 18. Learned amicus curiae for the appellant/ accused has also invited my attention towards 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 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.” 19. Thus, from the above said discussion of evidence and legal proposition, the prosecution has not proved its case against the appellant/accused beyond reasonable doubt that the contraband sent for the chemical examination was the same which was shown to be recovered from the possession of the appellant/ accused on 29.1.1994 at 7:40 P.M. 20. Learned amicus curiae for the appellant/ accused has further argued that though the recovery was made at the public place i.e. at the railway station, but no public witness was shown in the recovery memo. Although it is not necessary that in each and every case public witnesses are required to prove the alleged recovery and it depends on the facts and circumstances of each and every case. But in the present case, as the recovery has shown to be on the busy public place where public witnesses are always available, but no effort was made to procure the public witnesses at the time of recovery, which creates doubt in the prosecution story. 21. Learned Counsel for the appellant/accused has 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.” 22. In the documentary or the oral evidence it has not come that within the next 48 hours after the said arrest or seizure, the report of the particulars of arrest or seizure was made to the immediate superior officers. Though the compliance of this provision is not mandatory but it is directory. In this regard he has cited the judgment of Gurbax Singh v. State of Haryana reported in (2001) 3 Supreme Court Cases 28 and has relied on para-9 which is reproduced as under:- “9. ...It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions 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...” 23. Thus from the evidence discussed above, the prosecution has also failed to prove the compliance of Section 57 of the Act. 24. In view of my above discussion and conclusion, it is held that the prosecution has failed to prove the case against the appellant/accused for the offence punishable u/s 8/22 of the Act beyond reasonable doubt. As such, the impugned judgment and order dated 27.05.1997 passed by the Additional Sessions Judge, Dehradun is not justified and the same is liable to be set aside. 25. Accordingly, the appeal is allowed. The appellant/accused Om Prakash Sharma is acquitted of the charge levelled against him. The judgment and order dated 27.05.1997 passed by the Additional Sessions Judge, Dehradun in Special S.T. No.13 of 1994, State vs. Om Prakash Sharma, convicting the appellant/accused under Section 8/22 of the Act and sentencing him to undergo R.I. for a period of 10 years along with fine of Rs.1,00,000/- and in case of default in the payment of fine, imprisonment of further two years’ awarded to the appellant/accused, is hereby set aside. 26. It is reiterated that the appeal preferred by the appellant no.2-Ram Milan Gupta already stood abated vide this Court’s order dated 20.6.2008 in view of the report dated 3.9.2007 submitted by the CJM, Gorakhpur that the appellant/accused Ram Milan Gupta died on 23.9.1999 in Bareilly Jail. 27. Let the lower court record be sent back. (Dharam Veer, J.) 01.7.2010 Rajeev Dang