1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 268 of 2005. Date of decision: 4-4-2008. ____________________________________________________________ Sandeep Singh and another. Appellants. -vs- State of Himachal Pradesh. Respondent. __________________________________________________________________ Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Rameshwar Sharma, Advocate. For the respondents: : Mr. P.M. Negi, Deputy Advocate General. _______________________________________________________________ Surjit Singh, J. (oral). Heard and gone through the record. Appellants are aggrieved by the judgment of the Sessions Court, Chamba whereby they have been convicted of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substance Act and sentenced to under-go rigorous imprisonment for a period of ten years and to pay a fine of rupees one lac each, in default of payment of fine, to under-go rigorous imprisonment for a further period of two years. Case of the prosecution is that the two appellants were travelling by a Car which was being driven by one of them, namely, appellant Sandeep Singh. The other appellant was occupying the rear seat. Police intercepted the Car at a place called “Mohri Nallah”. When the checking was being done, the two appellants became nervous which aroused the suspicion of the Police Officer heading the party, Whether reporters of the Local papers are allowed to see the judgment? 2 namely, ASI Ranjit Singh (PW14). He searched the persons of the two appellants and found that both of them were having polythene wrappers hidden inside their shirts. The wrappers were opened and charas was found inside. Two independent witnesses were associated. Three samples weighing 25 grams were separated from each of the two wrappers recovered from the appellants. Samples were sealed with a seal that produced the impression of letter ‘T’ of English alphabets. Wrappers containing the bulk charas were also made into separate parcels and those parcels were sealed with the same seal. Further investigation of the case was handed over to Head Constable Hans Raj (PW15). Said Hans Raj completed the investigation on the same day and deposited the case property with Anjana Sharma, Sub Inspector (PW16) who was officiating as Station House Officer on that day. She re-sealed the sample parcels as also the parcels containing the bulk stuff with her own seal which produced the impression of English letter ‘H’. Two samples were sent to the Chemical Examiner vide NCB Form Exhibit PW14/A which had been filled in on the spot by A.S.I. Ranjit Singh (PW14). The Chemical Examiner gave the opinion that the samples contained contents of charas as they had resin of cannabis plants to the extent of 31.01% in one of them and 30.11% in the other. During the course of trial, two independent witnesses, namely PW2 Amit Kumar and PW3 Manoj Kumar turned hostile. They did not support the prosecution version. However, A.S.I. Ranjit Singh (PW14) and the Police officials accompanying him, namely Head Constable Tilak Raj (PW1), Constable Kamlesh Kumar (PW5) and Head Constable Rakesh Kumar (PW7) testified that the two appellants were traveling by a Car and they were intercepted by their party and on 3 search of their persons, two plastic wrappers containing charas, hidden inside their shirts, which they were wearing, were recovered. The main thrust of the arguments of learned counsel for the appellants is that two samples out of six samples were sent to the Chemical Examiner, without putting on them any special mark, indicating that one sample was in respect of the stuff recovered from one appellant and the other sample was in respect of the stuff recovered from the other appellant and that in the absence of any such distinguishing marks, it could not have been possible to determine whether the samples which were sent to the Chemical Examiner represented the stuff allegedly recovered from both the appellants or that both the samples were of the stuff recovered from one of them only and if they were in respect of the stuff recovered from one of them only which of the appellants was in possession of that stuff. To bring his point home, learned counsel has taken us through the testimony of Ranjit Singh A.S.I. (PW14) who effected the search and recovery, Head Constable Hans Raj (PW15), Anjana Sharma Sub Inspector (PW16), Constable Kamlesh Chand (PW5) and Constable Manoj Kumar (PW9). PW-14 Ranjit Singh, A.S.I did not testify that he put any mark of distinction on the samples drawn by him from the stuff recovered from each of the appellants, so as to indicate which sample pertained to the stuff recovered from which of the two appellants. He stated that all the six samples were sealed by him with a seal that produced the impression of letter ‘T’ of English alphabet. He stated that he had handed over the sample parcels as also the parcels containing the bulk charas to Head Constable Hans Raj (PW15) who conducted the further investigation of the case. Hans Raj (PW15) did not say that the sample parcels which were handed over to him by A.S.I. Ranjit Singh (PW14) bore any mark of distinction so as to 4 distinguish the samples taken from the stuff recovered from one appellant from the samples separated from the stuff recovered from the other. He stated that he handed over the sample parcels as also the parcels containing the bulk stuff to Sub Inspector Anjana Kumari. Anjana Kumari (PW16) stated that four sample parcels, even though according to PW14 A.S.I. Ranjit Singh and Head Constable Hans Raj (PW15) there were six sample parcels plus two parcels containing bulk charas, were produced to her by Head Constable Hans Raj (PW10) and that she re-sealed the four sample parcels and two bulk parcels with seal which produced the impression of English letter ‘T’. As per prosecution story, the witness had sealed the sample parcels and the bulk parcels with a seal that produced the impression of English letter ‘H’. She was cross-examined by the learned Public Prosecutor but no suggestion was put to her in the course of cross- examination that she had sealed the parcels containing the samples and bulk stuff with a seal that produced the impression of letter ‘H’. This is not relevant, so far as point which is under discussion. The relevance of the statement of the witness, in so far as the point under consideration is concerned is whether there was any mark distinguishing the samples of the stuff recovered from one appellant, from the samples of stuff recovered from the other. This witness also did not say that any mark of distinction was there or she her-self put any such mark at the time of re-sealing. M.H.C. Ramesh Chand (PW11), the Incharge of Malkhana with whom the case property was deposited by S.I. Anjana Sharma (PW16) also did not say that the sample parcels bore any mark of distinction. Similarly, Constable Manoj Kumar (PW9) who carried two samples to the Chemical Examiner’s Laboratory, also did not say that the samples which were carried by him bore any mark of distinction. 5 In view of what has been noticed herein above, it cannot be said that the two samples which were sent to the Chemical Examiner and which on examination were found to contain charas per report Exhibit PW14/A, represented the stuff recovered from both the appellants. May be that both the sample which were sent to the Chemical Examiner and which he examined represented the stuff recovered from one of the appellants as there was no mark of distinction put on the three samples drawn from the stuff recovered from each of the two appellants. The samples drawn from the stuff allegedly recovered from the appellants had not been kept separate either, because none of the witnesses including A.S.I. Ranjit Singh (PW14) and Anjana Sharma Sub Inspector (PW16) has stated so. When all the six sample parcels were bearing the same seal impressions and there was no mark of distinction thereon, it was almost impossible to distinguish which sample represented the stuff recovered from which of the two appellants. In view of the above said position, we are of the considered view that the conviction of the appellants cannot be up-held. Consequently, the appeal is accepted. Judgment of the trial Court convicting and sentencing them, as afore-said, is set aside and both the appellants are acquitted. They being in jail, serving out the sentence, are ordered to be set at liberty forth-with in case their detention is not required in any other case. (Surjit Singh) Judge. (Surinder Singh) Judge. April 4, 2008. (bm) 6