IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.336 of 1995. Decided on: July 1, 2009. _______________________________________________________ State of H.P. ……..Appellant. Versus Kali Ram. ……..Respondent. Coram Hon’ble Mr. Justice Deepak Gupta, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. Rajesh Mandhotra, Dy. Advocate General For the respondent : Mr. Surinder Verma, Advocate, vice Mr. Subhash Sharma, Advocate. ____________________________________________________ SURINDER SINGH,J (oral) : Challenge is to the acquittal of the respondent, passed by the learned trial court under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, in short ‘the Act’, allegedly for possessing 700 grams of Charas. The case of the prosecution as emerges from the prosecution evidence on record can be summed up thus. On 14.2.1993, at about 2.00 p.m., PW8 Inspector Madan Lal was heading a Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - patrolling party in Subzi Mandi, Shimla. The respondent, on seeing the police party tried to escape. The police became suspicious and apprehended him. The respondent was having a ‘raxine-bag’ in his hand. The police intended to search the bag, thus they associated two witnesses namely PW5 Shyam Lal Bhatia and PW6 Jia Lal from the nearby shop. Inspector Madan Lal asked the respondent to exercise his option to be searched by the police party or before any Gazetted Officer or a Magistrate. The respondent gave his consent in writing Ex.PD to be searched by the police. Inspector Madan Lal rendered himself to be searched to the respondent in the presence of the witnesses, but no incriminating article was found in his possession. To this effect, a memo Ex.PE was executed. Thereafter the said Inspector conducted the search of the ‘Raxine-bag’ of the respondent and found a black ladies purse inside the bag containing 700 grams of Charas, which was found wrapped into a polythene paper. From the recovered quantity, two samples of 25 grams each - 3 - were separated for analysis and each of the samples were sealed in the empty packet of Dhoop and sealed with seal impression ‘T’. Its sample was also taken on a piece of cloth Ex.PG. The case property was taken into possession vide memo Ex.PJ. The police prepared the site plan Ex.PH of the place of recovery. The respondent was arrested and his grounds of arrest were informed to him. A Special report with respect of search and seizure Ex.PJ was sent to the Deputy Superintendent of Police. The entire case property was deposited in the Malkhana with MHC. One sample parcel was sent for the examination through Constable Gopal Singh No.338 to the CTL Kandaghat. On receiving the report Ex.PK, the challan was presented in the court for the trial of the respondent. The respondent was charge-sheeted for the aforesaid offences. He pleaded not guilty and claimed trial. The prosecution examined its witnesses to prove the charges. The respondent was also examined under Section 313 of the Code of Criminal - 4 - Procedure. His case was denial simplicitor and no evidence in defence was led by him. At the end of the trial, the respondent was acquitted by the learned trial court. Mr. Rajesh Mandhotra, learned Deputy Advocate General has argued with vehemence that the learned trial court did not appreciate the evidence of the prosecution in the right perspective and erred in its conclusion that there were discrepancies in the statements of the prosecution witnesses. According to him, if the evidence of the prosecution is appreciated in the right perspective, there are ground to convert the acquittal into conviction. Shri Surinder Verma, learned counsel appearing for the respondent has supported the judgment of acquittal passed by the learned trial court. We have given our thoughtful consideration to the rival contentions of the parties and scanned the evidence of the prosecution in its minute details. At the very oust-set, we would like to say that in the instant case the link evidence from the time of recovery till - 5 - the deposit of sample in the Laboratory is missing. According to PW8 Inspector Madan Lal, two samples of 25 grams each were separated in the presence of the witnesses from the recovered bulk and he stated that seal ‘P’ not ‘T’ was used in sealing the case property, which is quite contrary to the prosecution story. There is also a contradiction about the place where the case property was weighed and number of parcels according to the Investigating Officer, the Charas was wrapped in a parcel and weighed in the shop of PW1 Rakesh Kumar. According to Rakesh Kumar, there were two packets which were weighed and the seal was brought by PW5 Shaym Lal Bhatia from his shop and was returned to him after its use, whereas, the Investigating Officer stated having used his seal ‘P’. PW6 Jai Lal in his cross- examination has stated that the case property was sealed in the shop of PW5 Shyam Lal Bhatia and not PW1 Rakesh Kumar. Further PW7 HC Varinder Singh who was accompanying the Investigation Officer - 6 - did not utter even a single word as to what type of seal was used on the case property. Not only this, the MHC with whom, the case property was deposited, was not examined, nor the extract of the Malkhana register was placed and proved on record, to lend strength to the version of the Investigating Officer. Further there is no evidence on record to show that the sample of seal was also deposited along with NCB form in the Malkhana. The NCB form Ex.PK also does not contain the facsimile of the seal against the relevant columns. Further, Constable Gopal Singh, who is alleged to have taken one of the sample parcel for its analysis to the Laboratory was not examined. The copy of the road certificate has also not been produced and proved on the record. The Investigating Officer is alleged to have put the lock and key in the safe kept in Malkhana, but there is absolutely no reference anywhere in the record as to when the sample for analysis was taken to the laboratory by Constable Gopal Singh. - 7 - Thus, for the foregoing reasons, we are unable to concur with the submissions made by the learned Deputy Advocate General that the case against the respondent stands proved. In fact, for the reasons aforesaid, the reasonable conclusion is that the prosecution has miserably failed to prove the link in the case to connect the sample parcel with the recovery made from the respondent in accordance with law, therefore, no interference in the acquittal of the respondent is called for. As such, the appeal sans merits and is accordingly dismissed. The respondent is discharged of his bail bonds, entered upon by him at any time during the proceedings of this case. Send down the records. (Deepak Gupta) Judge (Surinder Singh), Judge. July 1, 2009. (Pds)