HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No.103 of 2005 Digar Singh S/o Kundan Singh ……Appellant Versus State of Uttarakhand ……Respondent With Criminal Appeal No.159 of 2005 Veer Singh S/o Ramchandra Singh ……Appellant Versus State of Uttarakhand ……Respondent Mr. R.S. Sammal, Advocate assisted by Mr. Dinesh Chauhan, Advocate and Mr. Prem Kaushal, Advocate for the appellants. Mr. Amit Bhatt, Addl. G.A. with Mr. B. S. Parihar, Brief Holder for the State. Hon’ble J. C. S. Rawat, J. Since there is a common question of law and fact involved in these two criminal appeals, hence, these criminal appeals have been heard together and are being disposed of by this common judgment. 2. These criminal appeals have been filed against the judgment and order dated 15.06.2005 passed by Special Judge/Sessions Judge, Almora in Special S.T. No.10F/2001 and Special S.T. No. 20F/2001, whereby the learned Special Judge/Sessions Judge has convicted the accused/appellants and sentenced them to undergo RI for five years and a fine of Rs.25,000/- under section 20(b)(ii)(B) read with Section 8 of the N.D.P.S. Act. It was further directed that in default of payment of fine, the accused/appellants would undergo R.I. for further two years. 2 3. The case of the prosecution, in brief, is that on 20.10.2000 at about 2:00 P.M. S.I.–Bahadur Singh Pangti PW1 alongwith Constable Nepal Singh PW2 and Constable Rajendra Prasad Pant was busy in maintaining law and order duty and prevention of smuggling at Marchula barrier. When they were on duty, they found a vehicle Tata Mini truck 707 Registration No. D.L./L.D.5413 coming from Ramnagar side. When the said vehicle was stopped at the barrier, they found smell of liquor coming out from the truck. They became suspicious and asked the driver of the truck to come down. The driver of the truck came down and disclosed his name as Digar Singh. The second person who was sitting in the truck was also asked to come out and on enquiry he disclosed his name as Veer Singh. The other person who was sitting inside the truck disclosed his name as Nagpal. After making search of the vehicle, 1500 pouches of country made liquor were found. When the police enquired as to whether anyone of them is carrying any other contraband material, the accused-appellants disclosed that they are carrying ‘Charas’. Thereafter, the accused/appellants were duly informed of their right of being searched before a Gazetted Officer or a Magistrate as required under Section 50 of the Act, but they declined and said that the police can take their search itself. When search of the accused-appellant Digar Singh was made 300 gms ‘Charas’ was recovered from the right pocket of his pant whereas 300 gms ‘Charas’ was recovered from the left pocket of the pant of the accused-appellant Veer Singh. Thereafter, the police prepared the recovery memo (Ex.Ka.-1) at the spot. On the basis of the recovery, Chik FIR Ex.ka-2 3 was lodged at the police station and necessary entry to that effect was made in the G.D. The investigation was entrusted to S.I. Man Singh who prepared the site plan, recorded the statement of the witnesses and submitted the chargesheets against the accused/appellants. 4. Charges were framed by the trial court against the accused/appellants. The accused/appellants denied the charges and claimed the trial. 5. In order to prove its case, the prosecution examined as many as two witnesses. S.I. Bahadur Singh Pangti PW1 and Constable Nepal Singh PW2. 6. In the statement recorded u/s 313 Cr.P.C. the accused/appellants denied the prosecution case and stated that they have been falsely implicated in this case. 7. The learned trial court on the basis of his appreciation of the evidence found the accused/appellants guilty and convicted and sentenced them as mentioned above. 8. I have heard Mr. R.S. Sammal, Advocate assisted by Mr. Prem Kaushal, Advocate for appellant-Digar Singh and Mr. Dinesh Chauhan, Advocate for appellant- Veer Singh and Mr. Amit Bhatt, Addl. Govt. Advocate with Mr. B. S. Parihar, Brief Holder for the State. I have also gone through the evidence and material on record. 9. The prosecution in order to prove its case has adduced the evidence of PW1 S.I. Bahadur Singh 4 Pangti. He has stated in his evidence that on 20.10.2000 at about 2:00 P.M. he alongwith Constable Nepal Singh PW2 and Constable Rajendra Prasad Pant was busy in maintaining law and order duty. When he was on duty, he saw Tata Mini truck 407 Registration No. D.L./L.D.5413 coming from Ramnagar side. When the vehicle stopped at the barrier, there was smell of liquor coming out from the truck. They became suspicious and asked the driver of the truck to get down. The driver get down and disclosed his name as Digar Singh. The second person who was sitting in the truck, disclosed his name as Veer Singh. After making search of the vehicle, 1500 pouches of country made liquor were found. When he enquired as to whether anyone of them is carrying any other contraband material, the accused-appellants disclosed that they are carrying ‘Charas’. The accused/appellants were searched. On search, 300 grams charas was recovered from the accused-appellant Digar Singh whereas 300 gms ‘Charas’ was recovered from accused-appellant Veer Singh. Thereafter, he prepared the recovery memo (Ex.Ka.-1) at the spot. He brought the accused/appellants to the police station where case was registered against them. PW2 Constable Nepal Singh has also corroborated the evidence of PW1 S.I. Bahadur Singh Pangti. 10. Learned counsel for the accused/appellants contended that the arresting officer and the I.O. could not have totally ignored the provisions of Section 52 & 53 of the N.D.P.S. Act and as such the violation would have a great bearing on the appreciation of the evidence regarding the arrest, search and seizure; the 5 provisions of the N.D.P.S. Act were not followed in this case so far as the weighing of the recovered article as well as drawing of the representative sample were concerned; learned counsel for the appellants referred the evidence of PW1 S.I. Bahadur Singh Pangti, in which he has stated that 300 gms ‘Charas’ (Contraband material) was taken from the possession of accused- appellants respectively; the ‘Charas’ was seized and recovery memo Ex.ka-1 was prepared at the spot and thereafter it was taken to the outpost where the case was lodged and the articles were deposited; he further contended that the I.O. of the case was not produced before the court; he further pointed out that according to the prosecution, the entire recovered ‘Charas’ was sent to F.S.L. and FSL report Ex.Ka-4 & Ex.Ka-5 reveals that the ‘Charas’ of 300 gms recovered from the possession of Veer Singh was found 275 gms on weight at the FSL whereas the recovered ‘Charas’ 300 gms from the possession of Digar Singh was found 265 gms in the FSL; he further pointed out that the recovery becomes doubtful; the prosecution has not proved that the article which was recovered from the possession of the accused-appellant was ever deposited in the malkhana and no sample seal was ever produced before the court; there is no evidence of any of the witnesses who could have proved that the said contraband was sealed in the police station by the seal of Station Officer as provided under Section 52 of the N.D.P.S. Act; there is no evidence that the recovered article was kept in safe custody till it was produced before the court; the prosecution has not adduced evidence of any of the witness that the said ‘Charas’ was kept in the safe custody in the malkhana and 6 thereafter brought before the learned Sessions Judge for being sent it to the FSL; there is no link evidence who brought it before the Sessions Judge and how it was sent to the FSL; the prosecution has miserably failed to prove that the alleged contraband material was ever sent to the FSL; the findings of the trial court are against the record; and the prosecution has miserably failed to prove the case beyond its reasonable doubt. 11. Learned Brief Holder for the State refuted the contentions; contended that the prosecution has proved the case beyond reasonable doubt; and supported the findings recorded by the trial court. 12. So far as the weighing of the alleged substance as well as depositing it in the police station is concerned, it is admitted that the seized article was not weighed at the spot and only an approximate weight was presumed. None of the witnesses have stated in their evidence that weight was taken at the spot at the time of search, seizure and arrest. According to the provisions of the NDPS Act the contraband material if it has been recovered or is seized from the possession of an accused-appellant, it has to be forwarded to the Officer-in-Charge of the Police Station without unnecessary delay as provided under Section 52 of the N.D.P.S. Act. Sub-section (2) of Section 52A of the N.D.P.S. Act also enjoins upon the concerned officer of the police station the mandatory duty to make an application to a Magistrate for the purposes of certifying the correctness of the aforesaid inventory as prepared and drawn up, as well as to allow the 7 concerned officer to draw representative sample of the substance seized, the drawing of the representative sample to be make in the presence of the Magistrate, who also has to certify about the correctness with respect to the sample drawn. This Court in the case of Baldev Singh Vs. State of Uttarakhand 2008 (2) U.D. 456 has held as follows:- “13. What emerges from a bare reading of Section 52A of the 1985 Act in the light of the aforesaid very pertinent observations of their Lordships of the Supreme Court in the aforesaid judgments is that the weighting of the articles seized is a mandatory requirement of law, whether the weighing is done at the time and place of seizure or, if the seizing party is not in possession of or does not have access to a weighing scale, at the nearest police station in the shortest possible time. Apart from the mandatory requirement of the seized substances being weighed on a weighing scale, there is another mandatory requirement and that is that the representative sample required to be sent to a laboratory for testing has not only to be weighed on a weighing scale in the similar manner as the recovered article has to be weighed but before drawing up a representative sample, the concerned Police officer has to make an application to a Magistrate for granting to him the permission to draw the representative sample as also at the same time enjoining a duty upon the Magistrate to ensure that the sample is drawn in his presence and he certifies about the correctness of the sample so drawn. Undoubtedly, this stringent procedure has been incorporated in Section 52A to ensure that the weighing of the representative sample as well as the drawl of the sample conform to all legal requirements so that there is no chance of any foul play by the police as well as it does not cause any prejudice to the accused. 14. The search and seizure of the contraband article as also its being weighed at the time of recovery or soon thereafter and the sending of representative sample from out of the seized contraband article for examination in the laboratory to determine its correctness are very serious aspects because these not only ensure the fairness of the procedure to conform to statutory safequards but also to obviate any likely prejudice to the accused. Whether the search and seizure were properly effected, whether the seized contraband was properly weighed, whether the representative sample was properly drawn and sent to the laboratory and what is the report of the laboratory are aspects which cannot be dealt with lightly because any violation of any single aspect is likely to cause and create prejudice to the accused and may also result in miscarriage of justice. It is with this in mind that their Lordships of the Supreme Court made the following pertinent observations about the aforesaid aspects in the 8 case of Khet Singh versus Union of India 2002 SCC (Cri) 806:- “5. It is true that the search and seizure of contraband article is a serious aspect in the matter of investigation related to offences under the NDPS Act. The NDPS Act and the Rules framed thereunder have laid down a detailed procedure and guidelines as to the manner in which search and seizure are to be effected. If there is any violation of these guidelines, the courts would take a serious view and the benefit would be extended to the accused. The offences under the NDPS Act are grave in nature and minimum punishment prescribed under the statute is incarceration for a long period. As the possession of any narcotic drug or psychotropic substance by itself is made punishable under the Act, the seizure of the article from the appellant is of vital importance”. 15. This Court has come across various cases in the past in the State of Uttarakhand in fact, a large number of them, where the seized article at the time of the apprehension of the accused and its recovery from his person was not at all weighed, either at that time or at any time thereafter and the stand of the prosecution about the weight of the seized article is always relatable to the bald statement of the accused made at the time of his apprehension as well as the recovery of the article. It is a pity as well as a shame that the police relies upon the bald, uncorroborated and unconfirmed statement of the accused about the weight of the seized article and carries on with this assumption till the end of the trial, without itself weighing the article either at the time of the recovery or soon thereafter. Non-weighing of the article by the police is a flagrant violation of law. The weighing of the article by the police itself is a mandatory requirement of law. 16. Similarly the drawing up of the representative sample has to be done strictly in accordance with sub- section (2) of Section 52A of 1985 Act as mentioned hereinabove.“ 13. It is further pertinent to mention here that the prosecution has to establish that the alleged contraband material remained in the safe custody of the police till it was sent to the FSL or it was produced before the court. It is evident from the report that it was sent to the FSL in the month of November whereas the incident took place in the month of October. The prosecution had not adduced any evidence that it was deposited in the malkhana and it remained intact in the malkhana. The malkhana register was not produced 9 before the court. The Head Moharir of the malkhana who could have kept the ‘Charas’ in the safe custody had not been produced before the court. It is not in the evidence that who carried the said contraband material from the police station to the court for being sent it to the FSL. It is also not in the evidence that who had taken the said sample in the safe custody from court to the FSL. An interesting fact comes while going through the record that the contraband material was seized and it was wrapped in a cloth. The said cloth was intact when it was produced before the Session Judge during the course of the evidence of PW1 Bahadur Singh. It is not in the evidence that the said contraband was opened after verifying the seal before the Session Judge. It is evident from the record that while sending the ‘Charas’ to FSL the seals were broken and thereafter, the seal of the Sessions Judge were affixed on it. It is also evident that the seals which were found on the said ‘Charas’ which was sent to the FSL was of the Sessions Judge and there was no other seal inside the bundle. It is evident from the above fact that the seal was opened before the Sessions Judge and then it was re-sealed by the Sessions Judge and it was sent to the FSL. Now, the question arises who opened the seal, how it was opened or whether it was produced in open condition before the Sessions Judge or not and how it was sent. There is no such evidence to connect this fact in the prosecution story. The I.O. was not produced before the court. He being the I.O. he could have explained this fact. Non-production of the I.O. also causes prejudice to the accused-appellants on the above score. While sending the sample to F.S.L., the prosecution could not bother to take the weight of the 10 sample. It has leisurely sent the sample stating that it contains 300 gms contraband material, whereas the said sample was found 275 gms and 265 gms in the FSL. The Hon’ble Apex Court in the case of Rajesh Jagdamba Avasthi v. State of Goa 2005 (9) SCC 773 has held as follows:- “12. However, there appears to be substance in the other submissions urged on behalf of the appellant, namely, that the weight of the substance sealed in two envelopes was found to be different from the weight of the substance received by the laboratory as deposed to by PW 1. It is not disputed that from the shoe on the right foot 100 gm of charas was recovered, which was sealed in envelope A. According to PW 1, the Junior Scientific Officer, when that envelope was opened and the substance weighed it was found to be 98.16 gm. Similarly, from the shoe on the left foot 115 gm of charas was recovered which was packed and sealed in envelope B. But only 82.54 gm of the substance was found in envelope B when the same was opened by PW 1. A similar submission was urged before the High Court and the High Court also found that this discrepancy could not be explained by the prosecution. The High Court observed that there was no doubt that envelope B which was said to contain 115 gm of charas was found to contain only 82.54 gm of charas and this could not be considered to be a minor discrepancy. However, the High Court was of the view that even if this sample contained in envelope B was not considered against the appellant on account of discrepancy in the weight, since there was no material discrepancy in the weight of the charas found in the other envelope A, the case against the appellant stood established on the basis of the charas recovered, packed and sealed in envelope A. 13. It, therefore, concluded that the appellant could be held guilty for unauthorised possession of 98.16 gm of charas found in envelope A, if not for the total quantity of 180.70 gm as charged. 14. We do not find it possible to uphold this finding of the High Court. The appellant was charged of having been found in possession of charas weighing 180.70 gm. The charas recovered from him was packed and sealed in two envelopes. When the said envelopes were opened in the laboratory by the Junior Scientific Officer, PW 1, he found the quantity to be different. While in one envelope the difference was only minimal, in the other the difference in weight was significant. The High Court itself found that it could not be described as a mere minor discrepancy. Learned counsel rightly submitted before us that the High Court was not justified in upholding the conviction of the appellant on the basis of what was recovered only from envelope A 11 ignoring the quantity of charas found in envelope B. This is because there was only one search and seizure, and whatever was recovered from the appellant was packed in two envelopes. The credibility of the recovery proceeding is considerably eroded if it is found that the quantity actually found by PW 1 was less than the quantity sealed and sent to him. As he rightly emphasised, the question was not how much was seized, but whether there was an actual seizure, and whether what was seized was really sent for chemical analysis to PW 1. The prosecution has not been able to explain this discrepancy and, therefore, it renders the case of the prosecution doubtful.” 14. Moreover, the prosecution has not produced any seal of the arresting and seizure officer by which the said contraband material was sealed at the spot so that it could have been verified from the seal at the time of the production of the said ‘Charas’ before the Magistrate as provided under Section 52A of the N.D.P.S. Act. In this case the obligatory provision of Section 52A has not been followed. The provisions are mandatory and the Police Officer himself has dealt with seized article according to his own convenience. This fact also casts doubt about the veracity of the prosecution evidence that the ‘Charas’ seized from the possession of the accused-appellants was in the safe custody of the police. I am fortified with the view taken by Allahabad High Court in Shiv Charan Vs. State A.C.C. 1999(38) p/181 in which it has been held as under:- “6. A perusal of the record of the case shows that the prosecution had not given link evidence. It is 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 the chemical examiner is dated 26.8.1993 from which it appears that it was received in the office of chemical 12 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 1993 (30) ACC 605 S.C. has held that in the absence of link evidence, the conviction under the N.D.P.S. cannot be sustained.” 15. It has also been held in Valsala Vs. State of Kerala 1993 Supp.(3) S.C.C. p/665 that :- “We have seen the report of the Chemical Examiner and there no doubt it is mentioned that one sealed parcel was received containing a powder and it was analysed to be brown sugar. But from the records it is clear and it is also noted by both the courts below that the seized article was produced in the court only on 14.1.1988 i.e. after a period of more than three months and there is no evidence whatsoever at all to show with whom the seized article was lying and even assuming that it was in the custody of PW6, the Officer in charge of the police station who seized it, there is again nothing to show whether it was sealed and kept there. The learned counsel for the State no doubt argued that the provisions of Section 55 of the Act are not mandatory but only directory. We need not go into this legal question in this case. Suffice it to say that the article seized appears to have been not kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the Chemical Examiner. There is a big gap and an important missing link.