IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 470 of 2009 Date of decision: 26.07.2011 ________________________________________________________________________ The State of H.P. .....Appellant. Vs. Darshan Singh. .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra, J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? ________________________________________________________________________ For the appellant: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondents: Mr. Rajiv Rai, Advocate. R.B. Misra, J (Oral) The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment dated 24.4.2009, passed by the learned Special Judge-II, Sirmaur District at Nahan, Himachal Pradesh, in Sessions Trial No. 27-N/7 of 2007, acquitting the respondent-accused for the offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short 'the NDPS Act') in reference to FIR No. 231 dated 18.10.2007 of Police Station, Nahan, District Sirmaur, H.P. 2. The prosecution case in brief is that on 18.10.2007 SI Balak Ram (PW-10), Incharge Police Post, Kala Amb alongwith HC Hari Chand (PW-1), constable Viveka Nand (PW-2) and other police 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... officials while on patrol duty were present near Samsung Factory. At about 2:30 a.m. police party observed the accused-respondent coming from Kala Amb side driving a truck bearing No. HR 58-7977 was intercepted. On routine checking a plastic bag was taken out from underneath. The seat of the driver contained three polythene bags of poppy husk. HC Paramjeet Singh deputed to bring weights and scale, brought the same from the shop of one Ram Chander Rana (PW-9). On weighment, poppy husk/straw was found to be 3 kgs and 540 grams. Two samples of 50 grams each were separated from the poppy husk so recovered, which were put into two separate parcels, whereas, the residue poppy straw was put into the same bag and the sample parcels and the bag containing residue poppy husk were sealed with seal impression 'A'. ''NCB Form'' in triplicate were filled at the spot which is Ex. PW-10/B. Rukka, Ex. PW-10/C was prepared and was handed over to constable Viveka Nand (PW-2), who took the same to police Station, Nahan, on receipt of which FIR Ex. PW-6/A was recorded by Inspector Khazana Ram (PW-6) the then SHO, Police Station, Nahan. Site plan, Ex. PW-10/D, was prepared separately by SI Balak Ram (PW-10). The case property was produced before SI Inderjeet Singh (PW-5), who was acting as SHO at the relevant time. The contraband goods were re-sealed by SI Inderjeet Singh with seal impression 'S'. Samples were deposited with HC Kuldeep Singh (PW-3) the then MHC, Police Station, Nahan, who on 19.10.2007 forwarded one sample parcel and 'NCB Form' vide RC No. 209/07 ...3... to Forensic Science Laboratory (FSL), Junga, through constable Sumer Chand (PW-4) who has deposited the same at FSL, Junga. Special report, Ex. PW-7/A, was prepared by SI Balak Ram (PW-10) and the same was sent to SP, Sirmaur at Nahan, who after going through the same, handed over the same to HC Kamlesh Kumar (PW-7). After completion of investigation, accused-respondent was charged and tried for the aforesaid offence. 3. To prove its case, prosecution examined as many as ten witnesses, whereas, accused-respondent through his statement under Section 313 Cr.P.C. denied the prosecution case. 4. In order to scrutinize the impugned judgment we have to go through the prosecution witnesses. PW-1, HC Hari Chand, in his endeavour to support the prosecution case has stated that SI Balak Ram on 18.10.2007 boarded the cabin of the truck and checked the same from where one plastic bag was recovered from underneath the seat of the driver which contained three polythene bags of poppy husk. HC Paramjeet Singh was deputed to bring weights and scale, who brought the same from the shop of Ram Chander Rana (PW-9) and on weighment the poppy husk/straw was found to be 3 kgs and 540 grams. Two samples were taken out and sealed with seal impression ‘A’ and 'NCB Form' was filled on the spot. The recovered contraband was taken into possession vide seizure memo, Ex. PW-1/A, over which the signatures of Paramjeet Singh and accused-respondent were obtained. The seal after use was handed over to PW-1. The rukka was sent through constable ...4... Viveka Nand to Police Station, Nahan. PW-1 in his cross- examination has stated that he alongwith Paramjeet Singh was standing close to the vehicle when ASI was inspecting the vehicle. PW-1 has further stated that Paramjeet Singh took half an hour in bringing the weights and scale, till then officials of the police raiding party remained standing at the place and completed all the formalities by sitting on the road under the street light and they have taken 15-20 minutes in completing the formalities such as weighment of the contraband goods, drawing of the samples, completion of sealing process, preparation of recovery memo and preparation of rukka. On analysis of the statement of PW-1, nothing has been mentioned about association of two independent witnesses while making search and seizure of the contraband good. 5. PW-2, Constable Viveka Nand, in his endeavour to support the prosecution case has stated that HC Paramjeet Singh was deputed to bring weights and scale and accordingly brought the same and samples were sealed with seal impression ‘A’. The poppy husk was sealed in the same bag with seal impression ‘A’ and the seal was handed over to HC Hari Chand (PW-1). The seal impressions were also taken on a separate piece of cloth. The ''NCB Form'' was also filled at the spot. Seizure memo, Ex. PW-1/A, was signed by Paramjeet Singh and HC Hari Chand. Rukka, mark-A, was handed over to PW-2 (Viveka Nand) for being taken to Police Station, Nahan. Accordingly, PW-2 brought the same to the Police Station, Nahan, and in that reference FIR was ...5... registered. PW-2 has further stated in his cross-examination that he had no idea as to how many vehicles were checked during that night by the ASI. PW-2 has very categorically stated that ‘Samsung’ factory was nearby and there were shops on the road towards Haryana side. However, nobody was called from the factory or from the shop or from the police barrier. Weights and scale were brought by Paramjeet Singh from the shop of one ‘Rana’. PW-2 has also not indicated that any endeavour was made to associate any independent witnesses. 6. PW-3, HC Kuldeep Singh, was posted as MHC in Police Station, Nahan, at that relevant time. On 18.10.2007 he has received one bag sealed with seal impressions ‘A and S’, two samples, which were sealed with seal impression ‘A’ and 'NCB Form' by ASI/SHO Inder Jeet Singh. PW-3 entered the above articles in the malkhana register and on 19.10.2007, one sample, sample seal and 'NCB Form' was sent to FSL, Junga, vide RC No. 209/07 through constable Sumer Chand No. 230. 7. PW-4, Constable Sumer Chand, stated that he was posted as constable in P.P. Kala Amb at that relevant time. On 19.10.2007, he was called at Police Station in the morning and MHC Kuldeep handed over to him sample sealed with seal impression ‘A’ and sample seal and 'NCB Form' for being taken to FSL, Junga, vide RC No. 209/07. 8. PW-5, SI Inder Jeet Singh, was posted as ASI, Police Station, Nahan. In absence of regular Inspector/SHO Khazana Ram ...6... he was working as ASI/SHO in the Police Station, Nahan, at that relevant time. On 18.09.2007, ASI Balak Ram (PW-10), Incharge, Police Post Kala Amb, produced before him (PW-5) one bag sealed with seal impression ‘A’, two samples duly sealed with seal impression ‘A’, sample seal and 'NCB Form' in triplicate. PW-5 re- sealed the plastic bag with seal impression ‘S’ and sample parts were also re-sealed with seal impression ‘S’. Seal impression was also affixed on 'NCB Form'. Sample seal was taken on a piece of cloth separately, which is Ex. PW-5/A. PW-5 deposited the aforesaid articles with Incharge malkhana. The re-sealed certificate is Ex. PW-5/B, which bears the signatures of PW-5. 9. PW-6, Inspector Khazana Ram, recorded FIR, Ex. PW-6/A, on the basis of rukka. PW-7, HC Kamlesh Kumar, on 19.10.2007, received special report through ASI Balak Ram. PW-8, Ram Chander Rana, has stated that he was running a Halwai shop at Kala Amb. On 18.10.2007, one constable came to him and asked to give weights and scale. Accordingly, he supplied the weights and scale, which after use were returned to him. PW-9 further stated that distance from his shop to Samsung factory is about 150/200 meters. PW-9 has stated in his cross-examination that weights and scale were taken from him in the morning when it was dark and the same were returned to him at P.P. Kala Amb. However, he has very categorically stated in his cross-examination that he was also taken to Police Station. The weightment was done by the police. ...7... 10. PW-10, SI Balak Ram, while posted as Incharge, Police Station, Kala Amb, in his endeavour to support the prosecution case has stated that after search and seizure, seal impression was taken on piece of cloth separately, Ex. PW-10/A. 'NCB Form' was also filled in triplicate, which is Ex. PW-10/B. Site plan, Ex. PW-10/D, was prepared by PW-10. PW-10 has also very categorically stated in Ex. PW-10/D that he has not mentioned regarding the existence of electric pole of street light. PW-10 has, however, not indicated anything about any endeavour made on the part of the raiding party to associate independent witnesses. 11. On analysis of the prosecution witnesses and the materials on record, we notice that shockingly, where the raid was made that place was near to Samsung factory and shops were also situated there, however, no serious effort was made to associate even two independent witnesses. Though, non-association of two independent witnesses cannot be said to be fatal to the prosecution case. In view of the testimonies of PW-1, HC Hari Chand and PW-2 Constable, Vivek Nand, Constable Param Jeet Singh was assigned the duty to bring weights and scale, but surprisingly he was not examined. In view of the testimony of PW-9, he was taken to Police Post and the weighment was done by the police. It appears that the weighment of the contraband good was made at the Police Post and not on the spot. As per the testimony of PW-3, HC Kuldeep, ASI/SHO, Inder Jeet Singh, deposited with him one bag sealed with seal impression ‘A & S’, whereas, PW-4, Constable Sumer Singh, ...8... was handed over one sample sealed with seal impression ‘A’, sample seal and 'NCB Form' for being taken to FSL, Junga, vide RC No. 209/07 by ASI/SHO Inder Jeet Singh. PW-5, ASI Inder Jeet Singh, stated that contraband goods were sealed with seal impression ‘A’ and he has re-sealed the plastic bag with seal impression ‘S’ and samples were also re-sealed with seal impression ‘S’. But, amazingly, PW-4, Constable Sumer Chand, who took the contraband good and 'NCB Form' to FSL, Junga, vide RC No. 209/07 had not stated anywhere that sample was sealed with seal impression ‘A & S’ and when the sample was deposited at FSL, Junga, it was re-sealed with seal impression ‘S’. 12. On perusal of 'NCB Form' it appears that column No. 1 was written filled by the same person with the same ink and FIR No. was also mentioned. Ex. PW-10/B ('NCB Form') does not reveal that the same was prepared in triplicate on the spot and the facsimile seal ‘A & S’ was also sent for chemical examination. Constable Paramjeet Singh, who took about half an hour in bringing the weights and scale, was not examined for the reasons best known to the prosecution 13. The testimonies of PW-1, PW-2 and PW-10 indicate that poppy husk was recovered and it was a chance recovery. The testimony of PW-9, Ram Chander Rana, indicates that process of weighment was not carried out on the spot as claimed by PW-1, PW-2 and PW-10. PW-5, SI Inder Jeet Singh, stated that sample parcels were sealed with seal impression ‘A’ when the same were ...9... produced before him and he has re-sealed the same with seal impression ‘S’. On analysis of the prosecution witnesses, there is nothing in the statement of PW-3, HC Kuldeep Singh, that samples which were deposited with him were re-sealed with seal impressions ‘A & S’ by PW-5, SI Inder Jeet Singh. Such material discrepancy emanating from the statement of PW-3 and PW-5 goes to the very root of the case. 14. According to PW-4, sample parcel which was handed over to him by MHC, Police Station, Nahan, was sealed with seal impression ‘A’, such statement of PW-4 is also corresponding to the statement of PW-3, HC Kuldeep Singh, who stated that two samples, which were deposited with him were sealed with seal impression ‘A’. There is nothing in the statement of PW-4, Constable Sumer Chand, who has taken the same to FSL, Junga, with sample seal & 'NCB Form' for being deposited there, to infer that samples were also sealed with seal impression ‘S’, whereas, it is definite case of the prosecution that two samples which were separated from the bulk contraband good recovered from the possession of the accused-respondent at the relevant time were sealed with seal impression ‘A’ and thereafter, the same were re- sealed by SI Inder Jeet Singh, who was acting as SHO at that relevant time. Accordingly, the statement of PW-4 creates doubt so far depositing of sample parcel with FSL, Junga, for the purpose of chemical examination is concerned. No doubt, on perusal of Ex. PW-5/C, that is copy of malkhana register, it is clear that as per ...10... entry in the said register made by PW-5, SI Inder Jeet Singh, two sample parcels were deposited in the malkhana and were sealed with seal impression ‘A’ at three places and the same were re- sealed with seal impression ‘A’ at two places, but in view of specific statement of PW-3, HC Kuldeep Singh, Incharge Malkahana, Police Station, Nahan, that two sample parcels were deposited and he has not indicated in his statement that the sample parcels were re- sealed with seal impression ‘S’ as such no reliance can be placed on the entry of the malkhana register made by PW-5. According to the entry in the malkahana register, Ex. PW-5/C, which is contradictory to the statement of PW-3, Incharge Malkhana, Police Station, Nahan, as well as to the statement of PW-4, Constable Sumer Chand, who has taken the sample parcels to FSL, Junga, it cannot be said that the sample parcels, which were deposited in the malkhana and the which were deposited in the FSL, Junga, by PW-4/Constable Sumer Chand were the same which were separated from the bulk of the contraband good recovered from the possession of the accused-respondent. 15. In view of the aforesaid analysis, the description of re- sealed impression sealed with seal impression ‘S’ is missing. No doubt, on perusal of report of the Chemical Examiner, Ex. PX, it is clear that Chemical Examiner has mentioned in his report that sample parcel received in the laboratory was sealed with three seals of ‘A’ and re-sealed with two seals of ‘S’ and the seals were found intact and tallied with the seal impression sent by the SHO on ...11... 'NCB Form'. 16. In view of the statement of PW-3, HC Kuldeep Singh, with whom the sample parcels were deposited by PW-5 and the statement of PW-4 by whom the sample parcel was taken to FSL, Junga, from the Police Station, Nahan that the sample parcel which was deposited in malkhana and was sent to FSL, Junga, from Police Station, Nahan was only sealed with seal impression ‘A’ and there being nothing in the statement of PW-4 to infer that the said parcel was re-sealed with seal impression ‘S’. 17. In view of the aforesaid analysis, the link evidence is missing which goes to the root of the case. In our considered view on analysis of the prosecution witnesses and the materials on record, the learned Special Judge-II has rightly arrived at the finding that the prosecution has not been able to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused- respondent. In these circumstances, criminal appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 26th July, 2011 (virender)