IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 42 Of 2009 Achchhan ……… Accused appellant Versus State of Uttarakhand ……… Respondent December 21, 2009 Smt. Pushpa Joshi, Advocate for the appellant. Mr. M.A. Khan, Brief Holder 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 5.2.2009 passed by the Special Additional Sessions Judge/1st F.T.C., Roorkee in Special Sessions Trial No. 41/2007, State v. Achchhan, whereby the learned Special Additional Sessions Judge has convicted the accused appellant under Section 20(C) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the Act’) and sentenced him to undergo rigorous imprisonment for a period of ten years along with fine of rupees one lakh and in case of default in the payment of fine, three years’ additional imprisonment was awarded to the accused appellant. 2. In brief, the prosecution case is that on 24.7.2007, S.I. Manibhushan Srivastav (PW1), S.I. Devendra Chauhan (PW2), Constable Pramod, Brajpal and Surendra started from PS Kotwali Roorkee at 7.45 pm for law and order duty in the area. When they were proceeding towards Sonali Park through the tempo stand and reached near the Smriti Dwar, one person was seen standing there, who after having seen the police party turned back and started moving quickly. On doubt, he was asked to stop, but he did not. On this, the police party chased him and he was caught hold at 8.30 pm at about 45 steps from the Smriti Dwar. He disclosed his name as Achchhan i.e. the accused appellant. When he was asked the reason behind his attempt to escape, then the accused appellant said that he was having charas. Circle Officer, Roorkee was informed on mobile by PW1 Manibhushan Srivastav so that the search of the accused appellant may conducted before a Gazetted Officer. After sometime, Circle Officer reached on the spot. In between, the police party tried to procure the public witness, but nobody was willing to do so. The Circle Officer and the police personnel searched each other and the accused appellant was also told to take their search but he refused. Thereafter accused appellant was searched by the police party on the direction of the Circle Officer. In the search, about 2 kg charas was recovered from him which was kept in a white polythene inside the white bag, which he was holding in his right hand. The said charas was weighted after getting the weight machine from the police station through Constable Pramod. When he was asked to produce the licence, he failed to produce the same. The accused appellant was taken into custody. 100 gm charas out of the recovered charas was taken as sample and thereafter the rest of the recovered charas, after keeping it in the same polythene inside the same bag, was sealed on the spot in a white clothe. Sample thereof was wrapped in a polythene and was sealed separately in a white clothe and namoona Mohar was prepared. Fard Ex. Ka-1 was prepared on the spot. On the basis of the fard Ex. Ka-1, S.I. Manibhushan Srivastav (PW1) lodged the report in the police station at 9.35 pm on the same day i.e. 24.7.2007. Chick FIR Ex. Ka-4 was prepared by Head Moharrir Mohd. Mahfooz 2 Khan (PW5). Necessary entries were made by him in the GD. Copy of the GD is Ex. Ka-5. 3. Investigation of this case was entrusted to S.I. Satyapal Singh Rana (PW4). During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan Ex. Ka-2. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, he filed the chargesheet Ex. Ka-3 against the accused appellant. 4. On 4.10.2007, learned Special Additional Sessions Judge, Roorkee framed the charge against the accused appellant for the offence punishable under Section 18/20 of the Act. The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined PW1 S.I. Manibhushan Srivastav; PW2 S.I. Devendra Chauhan; PW3 Navneet Singh, D.S.P. and the then Circle Officer; PW4 S.I. Satyapal Singh Rana, the I.O. of the case and PW5 S.I. Mohd. Mahfooz Khan, the then Head Moharrir, who prepared the chick FIR Ex. Ka- 4 and made entries in the GD, copy of which is Ka-5. 6. Thereafter statement of the accused appellant was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he has falsely been implicated in this case as he owned a shop in Kaliyar and when he demanded the outstanding money from the police personnel, they started keeping enmity with him. In Defence, Om Prakash Goel was examined as 3 DW1. However, the accused appellant did not produce any documentary evidence in his defence. 7. After appreciating the evidence and after hearing learned Counsel for the parties, learned Special Additional Sessions Judge/1st F.T.C., Roorkee vide his judgment and order dated 5.2.2009 convicted and sentenced the accused appellant as discussed above. Against the aforesaid judgment and order dated 5.2.2009, the accused appellant has preferred the present appeal. 8. To prove its case, the prosecution has examined PW1 S.I. Manibhushan Srivastav, who has stated that on 24.7.2007, he along with S.I. Devendra Chauhan (PW2), Constable Pramod, Brajpal and Surendra started from PS Kotwali Roorkee at 7.45 pm for law and order duty in the area. When they were proceeding towards Sonali Park through the tempo stand and reached near the Smriti Dwar, one person was seen standing there, who after having seen the police party turned back and started moving quickly. On doubt, he was asked to stop, but he did not. On this, the police party chased him and he was caught hold at 8.30 pm at about 45 steps from the Smriti Dwar. He disclosed his name as Achchhan i.e. the accused appellant. When he was asked the reason behind his attempt to escape, then the accused appellant said that he was having charas. Circle Officer, Roorkee was informed on mobile by PW1 Manibhushan Srivastav so that the search of the accused appellant may be conducted before a Gazetted Officer. After sometime, Circle Officer reached on the spot. In between, the police party tried to procure the public witness, but nobody was willing to do so. The Circle Officer and the police personnel searched each other and 4 the accused appellant was also told that he may take their search but he refused. Thereafter accused appellant was searched by the police party on the direction of the Circle Officer. In the search, about 2 kg charas was recovered from him which was kept in a white polythene inside a white bag, which he was holding in his right hand. The said charas was weighted after getting the weight machine from the police station through Constable Pramod. When he was asked to produce the licence, he failed to produce the same. The accused appellant was taken into custody. 100 gm charas out of the recovered charas was taken as sample and thereafter the rest of the recovered charas, after keeping it in the same polythene inside the same bag, was sealed on the spot in a white clothe. Sample thereof was wrapped in a polythene and was sealed separately in a white clothe and namoona Mohar was prepared. Fard Ex. Ka-1 was prepared by this witness on the spot. Thereafter he came to the police station along with the recovered charas and the accused appellant and lodged the report. This witness has identified the charas as Ex. 1, polythene as Ex. 2 and the clothe of bundle as Ex. 3. He has also identified the sample of charas as Ex. 4 and the polythene and clothe used for sealing it as Ex. 5 & 6 respectively. In the cross- examination, he has stated that the sample prepared at the spot does not bear the signature of the accused appellant. He has further stated in his cross- examination that when the case property was sealed, he was not having his seal and he did not even enquire from PW2 S.I. Devendra Chauhan about his seal, who was also in the said police party on the date of incident. He pleaded ignorance as to whether the recovered contraband was cross-sealed by the seal of SHO after reaching the police station. He also pleaded ignorance about the seal which was put on the bundle 5 (the clothe having the case property inside). This witness has admitted that no namoona mohar was available on the record. He has also admitted that detailed report of this incident was not conveyed to the higher authorities after completing the proceedings on the date of the incident. He has further admitted that no person having the name of ‘P Giri’ was in the said police party nor any such person of the said name was at the police station. 9. PW2 S.I. Devendra Chauhan has reiterated the averments made in the fard Ex. Ka-1 as has been stated by PW1 S.I. Manibhushan Srivastav in his examination- in-chief. In his cross-examination, this witness firstly stated that he was not aware as to with whose mobile PW1 S.I. Manibhushan Srivastav had contacted the Circle Officer (PW3). Thereafter he stated that Circle Officer was not contacted through his mobile. Subsequently, in his cross-examination this witness has stated that the Circle Officer was informed through his mobile. 10. PW3 Navneet Singh, D.S.P. has stated that on 24.7.2007, he was posted as Circle Officer, Roorkee. On that day he reached at the place of occurrence after being informed by PW1 S.I. Manibhushan Srivastav about the said incident. This witness has supported the averments made in the fard Ex. Ka-1. In his cross-examination, he has stated that he was not having his own seal at the place of occurrence on the date of incident. He has further stated that the recovered contraband was sealed by PW1 S.I. Manibhushan Srivastav, but pleaded ignorance about the fact that with whose seal he had sealed the said recovered contraband. This witness has further stated in his cross-examination that he had seen 6 the seal when the recovered contraband was being sealed, but cannot memorize as what was written in the said seal. 11. PW4 S.I. Satyapal Singh Rana, the I.O. of the case, has stated that on 24.7.2007, he was posted as such at Kotwali Roorkee. The investigation of this case was entrusted to him. During the course of investigation, he prepared the site plan Ex. Ka-2 after inspecting the place of occurrence. During the course of investigation, he recorded the statements of the witnesses including the statement of Constable Digpal Singh, who had taken the recovered contraband to the laboratory for its chemical analysis. After completing the investigation, he filed the chargesheet Ex. Ka-3 against the accused appellant. In his cross-examination, he has stated that he had never seen the case property, mal namoona and the namoona mohar and the same were not before him in the trial court. He has further stated that he had not sent the recovered contraband to the laboratory for its chemical analysis. 12. PW5 S.I. Mohd. Mahfooz Khan has stated that on 24.7.2007, he was posted as Head Moharrir in PS Kotwali Roorkee. On that day, he had prepared the chick FIR Ex. Ka-4 on the basis of the fard Ex. Ka-1. He also made the necessary entries in the GD, copy of which is Ex. Ka-5. In his cross-examination, he pleaded ignorance about the fact that as to whether Constable Pramod had come in the police station for the weight machine. He has further stated that the case property, mal namoona and namoona mohar and the accused appellant were handed over to him in the police station, but no copy of fard was recovered from the accused appellant while putting him in the lockup. He has also admitted that the case 7 property was not cross-sealed with the seal of SHO. He has pleaded ignorance about the fact as to whose seal was put on the case property. He has also admitted that he did not see as to with whose seal the namoona mohar was prepared. This witness has admitted that no namoona mohar was on the record. He has stated that the case property was kept in the malkhana for about one month before sending it to the laboratory. 13. Thereafter statement of the accused appellant was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he has falsely been implicated in this case as he owned a shop in Kaliyar and when he demanded the outstanding money from the police personnel, they started keeping enmity with him. In Defence, Om Prakash Goel was examined as DW1. However, the accused appellant did not produce any documentary evidence in his defence. 14. DW1 Om Prakash Goel, Sessions Clerk in the court of Additional Sessions Judge, Roorkee, who has stated that he was posted as such during the period from 24.7.2007 to 24.8.2007, but no employee having the name of ‘P Giri’ was posted there in that duration. He has stated in his cross-examination that he could not say as by whose seal the said contraband was sent for its chemical analysis. 15. I have heard learned Counsel for the parties and have carefully perused the materials available on record. 16. Learned Counsel for the accused appellant argued that the case of the prosecution is not proved 8 beyond reasonable doubt against the accused appellant on the basis of the evidence discussed above inasmuch as there is no link evidence to prove that the alleged contraband shown to be recovered from the possession of the accused appellant at 8.30 pm on 24.7.2007 was the same article which was sent for the chemical analysis to the Forensic Laboratory, Dehradun and that the said contraband was kept intact in the malkhana and nobody was allowed to tamper with it. I find substance in the argument put forth by learned Counsel for the accused appellant due to the following reasons: (i) That the Namoona Mohar which was said to be prepared on the spot at the time of recovery was not filed on the record by the prosecution before the trial court and it creates a reasonable doubt about the recovery of the alleged contraband on the place of occurrence. (ii) That there is not even an iota of evidence to prove that as to when the recovered article got deposited in the malkhana of the police station and when it was taken from the malkhana to the court concerned for sending it to the Forensic Laboratory, Dehradun. Even Constable Digpal Singh who is said to have taken the namoona mal for its chemical analysis to Forensic Laboratory, Dehradun was not examined. (iii) That the aforesaid contraband was said to be recovered from the possession of the accused appellant on 24.7.2007 at 8.30 pm and the same was received in the laboratory for its chemical examination on 25.8.2007, but the prosecution has not produced any link evidence on the record to prove that the recovered contraband was kept intact in the 9 malkhana from the alleged date of its recovery and till the date it was sent to the laboratory for chemical analysis and nobody was allowed to tamper with it in the said period. No copy of the GD in this regard has been filed by the prosecution to prove that the said contraband was deposited in the malkhana and it was kept intact there during the aforesaid period. (iv) That the report of the Forensic Laboratory, Dehradun dated 14.12.2007 reveals that the sample of the recovered contraband was having the seal & impression of “P Giri” monogram, but no person having the name of “P Giri” was employed or posted during the alleged period either in the trial court or in the police station and this fact has also been admitted by DW1 Om Prakash Goel, Sessions Clerk as well as by PW1 S.I. Manibhushan Srivastav. It goes to indicate that the contraband sent to the laboratory was of some other case. (v) That the police party failed to procure any independent public witness at the time of search and alleged recovery. Although it has been stated that the police tried to procure the public witness but nobody was willing, but the name of any such person whom the police party tried to persuade has not been mentioned in the fard Ex. Ka-1. 17. In support of her arguments, learned Counsel 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:- 10 “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.” 18. Learned Counsel for the appellant further placed her 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:- 11 “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.” 19. In support of her arguments, learned Counsel for the appellant has further placed her 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 12 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.” 20. Learned Counsel for the accused appellant 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 13 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.” 21. Thus, from the above said discussion of evidence and legal proposition, the prosecution has not proved its case against the accused appellant beyond reasonable doubt that the contraband sent for the chemical examination was the same contraband alleged to be recovered from the possession of the accused appellant on 24.7.2007. 22. Learned Counsel for the accused appellant has further argued that though the recovery was made at the public place, but no public witness has been 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 been shown to be made at public place, but no public witness could be procured by the police party at the time of recovery, which creates doubt in the prosecution story. 23. Learned Counsel for the accused appellant has further submitted that compliance of Section 57 of the 14 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.” 24. Though the compliance of this provision is not mandatory but it is directory. In this regard, learned Counsel for the appellant has cited the judgment delivered in the case 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