IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 1631 OF 2001 (OLD NO. 124/1996) Rajendra Singh ……… Appellant/accused Versus State of U.P. ……… Respondent August 17, 2009 Mr. D.C.S. Rawat, Amicus Curiae 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 21.12.1995 passed by the 1st Additional Sessions Judge, Haridwar in Special Sessions Trial No. 8 of 1995, State v. Rajendra Singh, whereby the learned 1st Additional Sessions Judge has convicted the appellant/accused under Section 15/20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the Act’) and sentenced him to undergo imprisonment for a period of 10 years along with fine of Rs. 1,00,000/- and in case of default in the payment of fine, further one year’s imprisonment was awarded to the appellant/accused. 2. Heard learned Counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that on 18.12.1993 at 4.25 pm, S.I. Ram Babu Singh, Constable Prahlad Singh and Constable Raghunath Singh started from the police station on patrol duty in Mohalla Ram Nagar, Prem Nagar and Rajendra Nagar. When they were proceeding towards Mohalla Rajendra Nagar and reached at the Litho Press near the Jail Road, one person was seen coming, who suddenly turned back after watching the police party. He did not stop when asked by the police party. Then he was chased and caught hold by the police party at about 5.15 pm at a distance of nearly 60 steps. He disclosed his name as Rajendra Singh i.e. the appellant/accused. On his search, 1 kg doda post contained in a polythene bag was recovered from him. Prior to his search, he was asked to give his search before a Gazetted Officer or a Magistrate. Thereupon, the appellant/accused replied to the police party that he had already been caught and, therefore, he had no objection if the search would be taken by the police party itself. The recovered contraband was sealed in a white clothe and specimen of seal (namoona mohar) was prepared. Recovery memo Ex. Ka-1 was also written on the spot by Constable Prahlad Singh on the dictation of S.I. Ram Babu Singh (PW1). On the basis of that recovery memo, chick FIR Ex. Ka-2 was prepared on the same day i.e. on 18.12.1993 at 7.15 pm by Head Moharrir Vikram Singh. Necessary entries were also made by him in the GD. Copy of the GD is Ex. Ka-3. 4. Investigation of this case was initially entrusted to S.I. D.P. Singh Chauhan. Lateron investigation was transferred to Station Officer Karan Singh and lastly it was transferred to PW2 S.I. G.B. Pande. During the course of investigation, the I.O. prepared the site plan of the place of occurrence, that site plan is Ex. Ka-4. Report of the Forensic Laboratory, Agra is Ex. Ka-5. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, chargesheet Ex. Ka-6 was filed against the appellant/accused. 5. On 22.6.1995, learned Sessions Judge, Haridwar framed the charge against the appellant/accused for the offence punishable under Section 15/20 of the Act. The charge was read over and explained to the appellant/accused, who pleaded not guilty and claimed to be tried. Lateron the case was transferred to the Additional Sessions Judge, Haridwar on 21.9.1995 for its disposal according to law. 6. To prove its case, the prosecution has examined PW1 S.I. Ram Babu Singh, the informant of this case and PW2 S.I. G.B. Pande, the I.O. of the case. 7. Thereafter statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who has denied the allegations made against him and in reply to question no. 22, he has stated that he was detained by the police two days prior to the alleged incident and a telegram in this regard was also sent to the Chief Minister. He has also produced the receipts of the post office Ex. Kha-1 and Kha-2 and the certified true copy of the telegram Ex. Kha-3. However, in defence, the appellant/accused did not produce any oral evidence. 8. After appreciating the evidence and after hearing learned Counsel for the parties, learned 1st Additional Sessions Judge, Haridwar vide his judgment and order dated 21.12.1995 convicted and sentenced the appellant/accused as discussed above. Against the aforesaid judgment and order dated 21.12.1995, the appellant/accused has preferred the present appeal. 9. To prove its case, the prosecution has examined PW1 S.I. Ram Babu Singh, who has stated that on 18.12.1993, he was posted as Sub Inspector at PS Ganga Nahar, Roorkee. On that day, he along with Constable Prahlad Singh and Constable Raghunath Singh started at 4.25 pm from the police station for patrol duty in Mohalla Ram Nagar, Prem Nagar and Rajendra Nagar. When they were proceeding towards Mohalla Rajendra Nagar and reached at the Litho Press near the Jail Road, they saw one person coming from Mohall Rajendra Nagar, who suddenly turned back after watching the police party and started running away from the spot. On suspicion, he was asked to stop but he did not stop. Then he was chased and caught hold by the police party at about 5.15 pm at a distance of nearly 60 steps. He disclosed his name as Rajendra Singh i.e. the appellant/accused. On his search, 1 kg doda post contained in a polythene bag was recovered from him. Before taking his search, he was asked to go before a Gazetted Officer or a Magistrate for the search. Thereupon, the appellant/accused replied that he had already been caught and requested the police party to take his search. The recovered contraband was sealed in a white clothe and specimen of seal (namoona mohar) was prepared. Recovery memo Ex. Ka-1 was also prepared on the spot by Constable Prahlad Singh on the dictation of S.I. Ram Babu Singh (PW1). On the basis of that recovery memo, chick FIR Ex. Ka-2 was prepared on the same day i.e. on 18.12.1993 at 7.15 pm by Head Moharrir Vikram Singh. Necessary entries were also made by him in the GD. Copy of the GD is Ex. Ka-3. This witness has identified the clothe in which the alleged contraband was sealed as Ex. 1, polythene as Ex. 2 and the recovered contraband as Ex. 3. 10. PW2 is S.I. G.B. Pande, who has stated that on 28.11.1994 he was posted as Station Officer in Ganga Nahar police station. The investigation of this case was taken by him after the transfer of his predecessor S.I. Karan Singh. The site plan Ex. Ka-4 of the place of occurrence was prepared by S.I. D.P. Singh (to whom the investigation of this case was initially entrusted). During the course of investigation, the statements of the witnesses were recorded. He has further stated that he had received the report of the Forensic Laboratory, Agra during the course of investigation, that report is Ex. Ka- 5. After completing the investigation, he filed the chargesheet Ex. Ka-6 against the appellant/accused. 11. Thereafter statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who has denied the allegations made against him and in reply to question no. 22, he has stated that he was detained by the police two days prior to the alleged incident and a telegram in this regard was also sent to the Chief Minister. He has also produced the receipts of the post office Ex. Kha-1 and Kha-2 and the certified true copy of the telegram Ex. Kha-3. However, in defence, the appellant/accused did not produce any oral evidence. 12. Learned Amicus Curiae for the appellant/accused argued that the prosecution has failed to prove that the contraband alleged to be recovered from the possession of the appellant/accused on 18.12.1993 was sent to the Forensic Laboratory for chemical examination and that there is no link evidence to prove that the report Ex. Ka-5 is of the same contraband which is said to have been recovered from the possession of the appellant/accused. I find substance in the argument advanced by learned Amicus Curiae for the appellant/accused due to the following reasons: (i) That the report Ex. Ka-5 of the Scientific Officer, Forensic Laboratory, Agra reveals that the said report is of that contraband which was sent to that laboratory vide letter dated 31.10.1993 and which was received in the laboratory on 5.2.1994. But the appellant has been charged with the allegation that the alleged contraband was recovered from him on 18.12.1993, which clearly goes to establish that no recovery of the alleged contraband was made from the possession of the appellant on 18.12.1993 and the report on the basis of which the appellant has been convicted is of some another contraband which was sent vide letter dated 31.10.1993 i.e. nearly one and half month before the alleged date of recovery. (ii) That the prosecution has not produced any evidence to prove that as to when the recovered contraband was deposited in the malkhana, on which date it was taken from the malkhana for producing before the court and who had deposited it back in the malkhana and who had carried it to the Forensic Laboratory, Agra from the malkhana. (iii) That no oral or documentary evidence was produced by the prosecution to prove that the recovered contraband was kept intact in the malkhana from the alleged date of its recovery i.e. from 18.12.1993 till the date of its sending to the laboratory for chemical analysis. (iv) That the recovery is alleged to have been made at about 5.15 pm on 18.12.1993, but the police party did not try to procure any independent public witness. 13. In support of his arguments, learned Amicus Curiae 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:- “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.” 14. Learned Amicus Curiae for the appellant further placed his 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:- “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.” 15. In support of his arguments, learned Amicus Curiae for the appellant has further placed his 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 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.” 16. Learned Amicus Curiae for the appellant/accused 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 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.” 17. Thus, from the above said discussion of evidence and legal proposition, the prosecution has not proved its case against the appellant/accused beyond reasonable doubt that the contraband sent for the chemical examination was the same contraband shown to be recovered from the possession of the appellant/accused on 18.12.1993. 18. Learned Amicus Curiae for the appellant/accused has further submitted that compliance of Section 57 of the 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.” 19. In the documentary or the oral evidence it has not come that within the next 48 hours after the said arrest or seizure, the report of the particulars of arrest or seizure was made to the immediate superior officers. Though the compliance of this provision is not mandatory but it is directory. In this regard, learned Amicus Curiae 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 violate the trial or conviction. However, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, IO has admitted that seal which was affixed on the muddamal article was handed over to the witness PW1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the NDPS Act. The prosecution has not led any evidence whether the chemical analyzer received the sample with proper intact seals. It creates a doubt whether the same sample were sent to the chemcial analyzer. Further it is apparent that the IO has not followed the procedure prescribed under Section 57 of the NDPS Act of making full report of all particulars of arrest and seizure to his immediate superior officer...” 20. Thus from the evidence discussed above, the prosecution has also failed to prove the compliance of Section 57 of the Act. 21. In view of my above discussion and conclusion, it is held that the prosecution has failed to prove the case against the appellant/accused for the offence punishable u/s 15/20 of the Act beyond reasonable doubt. As such, the impugned judgment and order dated 21.12.1995 passed by the 1st Additional Sessions Judge, Haridwar is not justified and the same is liable to be set aside. 22. Accordingly, the appeal is allowed. The appellant Rajendra Singh is acquitted of the charge levelled against him. The judgment and order dated 21.12.1995 passed by the 1st Additional Sessions Judge, Haridwar in Special Sessions Trial No. 8 of 1995, State v. Rajendra Singh, convicting the appellant under Section 15/20 of the Act and sentencing him to undergo imprisonment for a period of 10 years along with fine of Rs. 1,00,000/- and in case of default in the payment of fine, sentence of further one year imprisonment awarded to the appellant, is hereby set aside. The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. 23. Let the lower court record be sent back. (Dharam Veer, J.) 17.8.2009 PRABODH