IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 31 of 1997 Decided on: May 20, 2010. State of H.P. …Appellant VERSUS Raju @ Mohammad and others. ….Respondents Coram The Hon’ble Mr.Justice R.B.Misra, Judge The Hon’ble Mr. Justice V.K.Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr. Anil Jaswal, Dy. A.G., Mr. Rajesh Madhotra, Dy.A.G. and Mr. Vivek Thakur, Addl. A.G. For the respondent: Mr. Anup Chitkara and Mr. Chaman Negi, Advocates V.K. Sharma, Judge (Oral): State is in appeal against the judgment of acquittal, dated 3.4.1996, passed by the learned Additional Sessions Judge, Kullu, District Kullu, Himachal Pradesh, whereby the respondents, herein, who shall hereinafter be referred to as the accused, were tried for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short `the Act’), were ultimately acquitted. 2. Briefly stated, the facts of the prosecution case are that on 5.7.1994 at about 4.30 p.m. SI Shayam Lal (PW-11), who at Whether the reporters of the local papers maybe allowed to see the judgment? …2… the relevant point of time, was Additional S.H.O., Police Station, Kullu, was present at Sarbari Bazar on patrol duty alongwith Inspector Shayam Lal and H.C. Bhupender Pal of State C.I.D., Kullu, LHC Pritam Chand and Constable Amar Chand of Police Station, Kullu, received secret information to the effect that accused Raju @ Ali Mohammad was finalizing a deal of Charas at his residence with some businessman of Delhi and in case the residential premises of the said accused were searched immediately, it could lead to recovery of a huge quantity of Charas. In the given circumstances, search warrant could not be obtained for the reason that in such an event, there was every likelihood of the contraband being removed or concealed and evidence of the offence destroyed. At this juncture, a Rukha was prepared and sent to the Police Station through Cosntable Amar Chand. Simultaneously, Dy. S.P. Kullu was also requested to visit the spot. Thereafter S.I. Shayam Lal, accompanied by other police officials, proceeded to the spot. On the way, independent witnesses, namely Amlindu Sharma and Prem Chand were also joined in the raiding party. In the meantime, Dy. S.P. K.K. Indoria, also reached the spot. On reaching there, S.I. Shayam Lal knocked the door of the premises of A-1 Raju @ Ali Mohammad in the presence of witnesses and Dy. S.P. K.K. Indoria. The door was opened by A-1 Raju @ Ali Mohammad. Two other persons were found sitting in the room. On being confronted, the accused disclosed their identity to the Investigating Officer as A-1 Raju @ Ali Mohammad, A-2 Pritam Kumar and A-3 Raj Kumar. They also gave their addresses and …3… other particulars to the police. All the three accused were apprised about the secret information with regard to the alleged contraband, i.e. Charas, in their possession and they were told that the room was required to be searched for that purpose. Thereafter, the search followed. It led to recovery of Charas, kept in a polythene packet. The recovered contraband was weighed and found to be 2 k.g. 100 gms., out of which a sample weighing 50 gms. was taken out for chemical analysis. The bulk and sample were separately sealed in two parcels with seal, bearing impression `N’. The seal used, during the proceedings, was stated to have been handed over to the independent witness, namely Prem Chand. The recovered contraband and sample was taken into possession by the police vide memo Ex. PW-10/A, on which signatures of the independent witnesses were also obtained baesides that of Dy. S.P. K.K. Indoria. After completion of other procedural formalities on the spot, the police party returned to the Police Station. There, the case property comprising of the parcels, containing the bulk of recovered charas and sample thereof were deposited with PW-7, Inspector Paras Ram, who re- sealed both the parcels with seal, bearing impression `X’. 3. The sample of the recovered contraband was sent for analysis to CTL, Kandaghat and report, Ex. PA was obtained, which revealed that the sample contained contents of Charas. 4. On completion of investigation, the accused were charge sheeted and sent up to face trial. On being charged, they pleaded not guilty and claimed to be tried. The prosecution evidence followed. It examined eleven witnesses in all. On close of …4… prosecution evidence, the accused were examined under Section 313 of the Code of Criminal Procedure (in short `the Code’). Their case in defence was that of total denial, innocence and false implication. Whereas according to A-1, Raju @ Ali Mohammad the case was foisted upon him at the instance of one Jogi Pradhan, who is their landlord and litigation was going on with him , A-2 Pritam Kumar and A-3 Raj Kumar have stated that they were searched by the police in the Police Station, where their antecedents were inquired by the police and their signatures were also obtained on some documents. The accused examined one witness in their defence. 5. On conclusion of the trial, all the accused were acquitted by the learned trial court. Being aggrieved, the State is in appeal before this court. 6. We have heard the learned Deputy Advocate General for the appellant-State and S/Shri Anup Chitkara and Chaman Negi, learned counsel for the respondents-accused and perused the record. 7. It may be stated at the very outset that though the learned trial court, while acquitting the accused, has held that there was non-compliance of the mandatory provisions of Sections 42, 50, 52, 55 and 57 of the Act by the police in this case, yet the learned counsel for the accused have very fairly conceded at the Bar that in the facts and circumstances of the case, neither these provisions of the Act were applicable nor all of them are of mandatory nature. It being so, we need not go into this aspect of the matter. However, suffice it to say that since a …5… gazetted officer, Dy. S.P. K.K. Indoria was associated with the search and seizure from the very beginning, Section 42 was not applicable, as held by the Hon’ble Supreme Court in M.Prabhulal Vs. Assistant Director, Directorate of Revenue Intelligence 2003 SCC (Cri) 2024; T. Thomson Vs. State of Kerala and another 2004 SCC (Cri) 447 and G.Srinivas Goud Vs. State of A.P. AIR 2005 SC 3647. Further more since the prior information was relating to the alleged contraband being kept in the residential premises and the consequent search and seizure were also relating to the said premises and not from the person of the accused, Section 50 of the Act was also not applicable. It need not be emphasized that Sections 52, 55 and 57 have been consistently held to be directory by authoritative pronouncements of the Hon’ble Apex Court. 8. However, even despite that, the learned counsel for the accused have supported the impugned judgment on two fold grounds. Firstly that there is not even an iota of evidence to establish that the premises, from where the contraband was allegedly recovered, were in possession of A-1 Raju @ Ali Mohammad as a tenant or that either he or any of the other two accused, A-2 Pritam Kumar and A-3 Raj Kumar can be said to be in conscious or constructive and exclusive possession of the Charas, allegedly recovered from the aforesaid premises. 9. To demonstrate, the learned counsel for the accused have drawn our attention to the deposition of PW-11 S.I. Shayam Lal, the Investigating Officer, during cross examination, wherein he has stated that “I cannot say that the room searched by the …6… police is in the building of one Sh. Jogi Pradhan and the premises were under the tenancy of the ffather of accused Ali Mohammad @ Raju”. 10. PW-2, Prem Chand, who is one of the two independent witnesses, though has been declared hostile as he did not support the prosecution story in its material particulars, has stated during cross examination by the learned Public Prosecutor that “My house is situated at a distance of about 1 furlong from the house of Ali Mohammad. Accused Ali Mohammad is known to me since his childhood. He is my friend”. Since A-1 Raju @ Ali Mohammad while making statement under Section 313 of the Code has disclosed his age as 23 years and if he was residing in the premises in question from where the contraband was allegedly recovered since his childhood, as stated by PW-2 Prem Chand, it cannot be said by any stretch of imagination that he was inducted as a tenant in the said premises in his child-hood and the inference that is deducible is that if at all he was residing in the premises, the same were under tenancy of his father, Abdul Jawahar. This inference is further fortified from the recitals in FIR, Ex. DW-1/A. This line of defence was put to PW-10 Dy. S.P. K.K. Indoria ad PW-11 SI Shayam Lal, though unsuccessfully. 11. It is in the statement of DW-1 MHC Sato Kumar that on 8.5.1994, that is, about two months prior to the alleged occurrence FIR No. 188 of 1994 was registered on an application moved by Smt. Kala Devi, w/o Abdul Jawahar, resident of Sultanpur, Kullu. There is no dispute that Smt. Kala Devi is the mother of A-1 Raju @ Ali Mohammad. A perusal of the statement …7… of PW-5, H.C. Om Parkash would go to show that it was suggested to him that the mother of A-1 Raju @ Ali Mohammad made a complaint against Jogi Pradhan on 8.5.1994. A perusal of FIR, Ex. DW-1/A would go to show that this is the same complaint. Thus, it is made out that A-1 Raju @ Ali Mohammad was not staying in the premises under reference as a tenant. It is also for the reason that there is no other evidence to this effect. Neither any rent receipt nor any municipal record, showing as to who was the tenant in the said premises has been brought on record. The factum of tenancy could have been very well established from the electricity and water bills etc. or by producing the local municipal Councilor or any other reliable witness from the neighbour-hood, but it was not done despite the fact that it is in evidence that the premises searched are located in a thickly polluted area. 12. Against the above backdrop, it is absolutely difficult to say with certainty that the premises raided and where search was made, were in possession of A-1 Raju @ Ali Mohammad. On this aspect we are supported by the law laid down by the Hon’ble Apex Court in Ismailkhan Aiyubkhan Pathan Vs. State of Gujarat (2000) 10 SCC 257, Paras 2 to 5 whereof, being relevant, are extracted hereinbelow:- “2. The summary of the prosecution case is the following: PW-7 Inspector of Police of Crime Branch in the Vigilance Squad got some sleuth information on 6.5.1991 that illicit trafficking was going on in the room on the 1st floor of building which was in the possession of one Nasir. He also …8… got information that the said Nasir had kept a stock of “charas” and was dealing with the same through his servants. On the strength of the aforesaid information, PW-7 alongwith other police personnel reached the said building for the purpose of catching the culprits. He called out the name of Nasir but none came out holding that name. However, when he entered the room, he found all the 6 accused persons therein. He found a gunny bag being kept in the corner of the room. It was opened and the substance therein was tested with the help of Shri B.N. Dave, who came by that way (that person is said to be an expert attached to the Forensic Science Laboratory). Mr. Dave conducted an “on- the-spot scientific test” and proclaimed that the substance was “charas”. 3. It is unnecessary for us to go into the other evidence because we will assume that whatever PW-7 has said is correct and the rest of the evidence for the prosecution had only supported the version of PW-7. But the question is how the appellants can be fastened with the liability for possession of the contraband article wrapped in the gunny bag which was kept in the room. 4. There is no evidence that anybody had seen that any one of the accused was dealing with narcotic drugs. There is also no evidence to show that any one of them had admitted either through a confession or otherwise of any incriminating role. Nor is there evidence that the accused persons, who were found sitting in the room, had possession of the room, …9… actual or constructive. It is the prosecution case that the said room was in the possession of Nasir. But that Nasir is not an accused in this case. He was not examined as a prosecution witness to disclose as to how the accused persons happened to be in the room. None of the neighbours supported the prosecution case that any one of the accused had a connection with the article in question. 5. Thus, we are left with only a modicum of evidence as against the accused, which only shows that they were present in the room which was in the possession of one Nasir and that the said room contained a gunny bag with the narcotic substance “charas”.” 13. Insofar as A-2, Pritam Kumar and A-3 Raj Kumar are concerned, even as per prosecution case, they belong to New Delhi. Even if it is assumed for a moment for argument sake that they were present in the premises, under reference, at the relevant time, their presence can only be said to be casual and chance presence. In addition thereto, no further allegation has been made or substantiated by the prosecution, which may lead to the inference that they were having any dominion over the premises. 14. There is no evidence worth the name except the version, stated by the official witnesses, that the premises searched belong to A-1 Raju @ Ali Mohammad either as owner or tenant. Even if these were tenanted premises, the owner, who from all available indications, appears to be one Jogi Pradhan, has not been examined. …10… 15. Even as per prosecution version NCB form, Ex. PA, was prepared on the spot. However, the same has not been shown to have been deposited with PW-7, Inspector Paras Ram alongwith the case property comprising of the parcels containing the bulk of Charas and sample thereof. Similarly, it is also not proved that seal impression Ex.PW-11/J of the seal used for sealing the case property and the sample thereof by PW-11 on the spot was deposited with PW-7 Inspector Paras Ram. Further more, seal impression Ex.PW-11/K of the seal bearing impression `K’, said to have been used by PW-7, Inspector Paras Ram, for re-sealing the case property and seal impression Ex.PW-11/J of seal `N’ stated to have been used by the Investigating Officer PW-11 SI Shayam Lal for sealing the parcels containing the bulk of recovered charas and the sample drawn out of the same on the spot, are not shown to have been forwarded to the Laboratory at Kandaghat alongwith the sample of recovered contraband, that is, Charas. This inference is deducible from the deposition of PW-5, H.C. Om Parkash, with whom the case property was stated to be initially deposited by PW-7, Inspector Paras Ram, LHC PW-6 Pritam Chand, who is said to have taken the sample for analysis to the Laboratory at Kandaghat, PW-7, Inspector Paras Ram and PW-9, H.C. Hem Raj, who had acted as MHC, Police Station, Kullu in the interregnum. None of them has stated about sending of the sample seal impressions to the Laboratory alongwith the sample of recovered charas. 16. NCB form Ex. PA contains the following entries against columns No. 6 and 7 thereof:- …11… 6. No. of samples and marking on each of them for identification. One parcel sample seal `N’ and re-seal seal `X’ 7. (a) Description of seal `X’ 17. A perusal of the contents of columns No. 6 and 7 above would go to show that though against column No. 6, it is recorded that sample contained seals bearing impressions `N’ and `X’, the entry against column No. 7 is only with regard to the seal bearing impression `X’. It is apparent from a bare perusal of NCB form Ex. PA that the same does not contain the actual seal impression(s) and instead, the mention therein about seals `N’ and `X’ is hand-written and appears to be incorporated by way of a ball pen. In such circumstances lithographic stamp contained on NCB form Ex.PA certifying that seal/seals on the sample tallied with the specimen impression seal sent separately, is of no consequence to complete the chain in evidence to establish that sample of the Charas analyzed vide report contained in NCB form Ex. PA is that of the Charas, allegedly recovered during the search and seizure in question. 18. To arrive at this conclusion, reliance is placed on G.Srinivas Goud Vs. State of A.P. 2005 SC 3647; State of Rajasthan Vs. Gopal, 1998 (8) SCC 449; Mahant Bal Giri and another Vs. State of H.P., 2008 (1) SLC 455; Roshan Lal Vs. State of H.P., 2004 Latest HLJ H.P. 968; Vineh Kumar Kamlesh Kumari Vs. State of H.P. , 2008 (3) SLC 364; State of Rajasthan Vs. Gurmail Singh, 2005 Drugs Cases (Narcotics) 79 and Satish Rana Vs. State of H.P. 2008 Drugs Cases (Narcotics) 755. …12… 19. On the two counts, as above, we do not see any merit in the present appeal which is accordingly dismissed. ( R.B.Misra ) Judge May 20, 2010(K) ( V.K.Sharma ), Judge