IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.208 of 2009. Decided on: April 4, 2011. ____________________________________________________________ Mohinder Singh. ……..Appellant. Versus State of H.P. ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Ravinder Thakur, Advocate. For the respondent : Mr. A.K.Bansal, Addl. Advocate General. _________________________________________________________ SURINDER SINGH,J (oral) : The appellant was convicted, by the learned trial Court in Sessions Trial No.10 of 2008, on 9.6.2009, for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short “the Act”, allegedly for keeping in possession of about 600 grams of Charas i.e. resin of Cannabis plant in the recovered stuff of 2 Kgs.300 grams and sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of `4,000/- with default clause. The convict challenged his conviction and sentence in the present appeal. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. Heard and gone through the evidence on record. 3. In short, the prosecution case as emerges from the statements of the prosecution evidence can be stated thus. (ii) On 27.2.2008, PW7 SI/SHO Om Parkash left Police Station for routine patrol duty towards the place known as ‘Nagan’. He was accompanied by constables PW1 Bhup Singh, PW2 Kashmi Ram and PW3 Chet Ram. Around 6 a.m., police party reached near ‘Tuman Mor’. They noticed the appellant coming on foot from the opposite side. He was carrying a polythene packet in his hand. On seeing the police party, he got nervous and tried to escape. Immediately he was overpowered by the police party. (iii) The appellant was suspected of some narcotic in his possession, as such he was given an option to be searched before the Magistrate or the Gazetted Officer and this option was reduced into writing Ex.PA. Thereafter, PW7 aforesaid rendered himself to - 3 - be searched by the appellant, but nothing incriminating substance was found. On checking the polythene packet Ex.P1, Narcotic stuff in the shape of Chapatties (flats) and balls was recovered, which came out to be 2 Kilo 300 grams. (iv) Two samples of 25 grams each were separated from the recovered bulk and sealed separately with three seals producing the impression of English alphabet ‘H’. The recovered bulk was also sealed with the same seal at nine places. The case property was taken into possession vide seizure memo Ex.PB in the presence of PW1Constables Bhup Singh and PW2 HHC Kashmi Ram. (v) Site plan Ex.PW7/B of the alleged place of recovery was prepared. (vi) Police prepared ruqa Ex.PW7/A which was sent for the registration of the case on the basis of which formal FIR Ex.PW4/E was registered. (vii) The police recorded the statements of the witnesses on the spot and filled up the NCB - 4 - forms in triplicate, one of which is Ex.PW7/C. The sample of seal Ex.PD used on the spot was taken on a piece of cloth. (viii) The appellant was arrested and the grounds of his arrest were informed to him, in writing Ex.PC. 4. The case property was deposited in the Malkhana with PW4 MHC Rajinder Singh alongwith NCB forms and samples of seal. Its entry was made in the Malkhana register the abstract of which is Ex.PW4/B. 5. Special report was sent to the Officer superior within the statutory period. 6. On 27.2.2008, one of the sample was sent to the Forensic Science Laboratory, Junga vide R.C. Ex.PW4/A through Constable PW5 Sunder Singh. On its deposit, he obtained the receipt of the sample document received in the Laboratory and handed it over back to the MHC on his return to the Police Station. 7. The sample parcel was analyzed in the Laboratory and it had issued the examination report Ex.PX, to the effect that the sample parcel contained 26.03 % weight-in-weight resin of Cannabis Plant. It also - 5 - shows the presence of tetrahydrocannabinol (THC ) in the sample. 8. After completing the investigation, challan was presented in the Court, against the appellant for his trial. He was accordingly charge-sheeted for the offence aforesaid, to which he pleaded not guilty and claimed trial. 9. To prove its case, prosecution examined its witnesses and the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure. When called upon to enter into his defence, he sought the permission of the Court under Section 315 of the Code of Criminal Procedure to examine himself as his own witness, which was allowed and he then examined himself as DW1. The stand taken by him was that he has been visiting Kullu casually in the fairs and festivals where he had been preparing the confectionary items and running ‘Halwai shop’. On 27th February, 2008, he wanted to collect his dues from a Home-guard personnel and left for Ani through Delhi- Chandigarh-Karana Bus to stay for the night in the house of his friend at village Koti. While travelling in the Bus, he was checked by police and asked about his - 6 - antecedent, then directed him to get down from the bus. The police obtained his thumb impressions on various documents. He further stated that the police had recovered the alleged stuff from some other passenger, who was let off, but in turn he was arrested. 10. Learned trial Court disbelieved his defence and relying upon the testimony of the prosecution witnesses convicted and sentenced the appellant as aforesaid. 11. At the very outset, learned counsel for the appellant submitted that the report of the Analyst Ex.PX could not be connected with the recovered stuff, in the absence of which it cannot be said that the alleged recovery from the appellant as that of a narcotic drug. 12. I have examined the above point and went through the evidence on record. According to PW7 Om Parkash, Sub Inspector, after exercising the option by the appellant, the polythene packet Ex.P1 to which the appellant was having in his hand was checked and it contained the Charas, two samples whereof were separated and sealed with seal impression ‘H’ each at three places and remaining bulk was also sealed with the same seal at nine places and similar is the - 7 - statement of other police officials viz. PW1 Bhup Singh and PW2 Kashmi Ram, who were allegedly accompanying the Investigating Officer. Even PW4 MHC Rajinder Singh also stated having deposited the case property with him and specifically stated that each of the sample parcels was having three seals of impression ‘H’. This fact also finds mentioned in the abstract of Malkhana register Ex.PW4/B and one of the sample parcels was drawn from the Malkhana on 28th February, 2008 through PW5 Constable Sunder Singh for its deposit in the Forensic Science Laboratory as per RC Ex.PW4/A. It also finds mention that sample parcel was having three seals, but surprisingly when it was received on the same day in the Laboratory against serial No.7, the Chemical Analyst vide his report has shown that the sample parcel was containing ‘six’ seals of English alphabet ‘H’. There is nothing on record to show as to how on the sample parcel, which was bearing three seals of ‘H’ contained six seals of ‘H’ when it reached in the Laboratory. Further there is also no mention about the receipt of the sample of the seal which was used on the spot by the Investigating Officer and on the top of it, the report Ex.PX does not contain - 8 - any certificate of the Chemical Analyst that the seals, which were found on the sample parcel corresponded/ tallied to the seals separately sent. 13. For the above reasons, the prosecution has failed to connect the examination report Ex.PX with the stuff recovered. Since this link is missing and it is fatal to the prosecution case, as such the conviction and sentence passed against the appellant deserves to be set-aside on this ground alone. 14. In conclusion, the impugned judgment of conviction and sentence passed against the appellant is set-aside. Consequently, the appellant stands acquitted by extending him the benefit of reasonable doubt. He is in Jail serving out a sentence. He be released forthwith, if not required in any other case. 15. The Registry of this Court is directed to issue the warrants for his release forthwith if not required in any other case to the Superintendent of Jail concerned, in compliance of this judgment. 16. The matter stands disposed of. Send down the record. April 4, 2011. (Surinder Singh), (Pds) Judge.