IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 577 OF 2001 (OLD NO.2034 of 1996) Lakkar Nath ……… Appellant Versus The State ……… Respondent August 13, 2009 Sri S.C. Bhatt, Advocate for the appellant Sri 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 15.11.1995 passed by Sessions Judge, Haridwar in Special Sessions Trial No. 62 of 1993, State v. Lakkar Nath, whereby the learned Sessions Judge has convicted the appellant/accused under Section 8/20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the Act’) and sentenced him to undergo rigorous 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 five years’ S.I. 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 19.7.1993 at about 4:30 P.M., P.W.1 S.I. Man Singh along with P.W.2 Constable Subhash Singh arrested the appellant-accused Lakkar Nath on bye-pass road near Banda, District Haridwar. It was also stated that the appellant-accused was asked to be searched before a Gazetted Officer but he told the police personnel that he had faith on them and they might search him. On his search, about 25 grams Charas was said to be recovered from the possession of appellant-accused which was in the form of 12 sticks. The recovered Charas was sealed on the spot and specimen of seal was also prepared. Fard of recovery Ex.Ka-1 was also prepared on the spot. Along with the recovered article, the appellant-accused was taken to the Police Station, Haridwar where Chik FIR was prepared on the basis of recovery memo on 19.7.1993 at 5:40 P.M. by Constable Clerk Satyawan Singh, that Chik FIR is Ex.Ka-2. Investigation of this case was entrusted to S.I. Chandan Singh Bisht, who during the course of investigation inspected the place of occurrence and prepared the site plan of the place of occurrence, which is on record. The recovered Charas was also sent for the chemical examination and the report given by Joint Director, Scientific Laboratory, Agra dated 24.2.1994 is Ex.Ka-3. During investigation, the I.O. recorded the statements of witnesses and on completion of investigation, he filed the charge sheet against the appellant-accused in the court, which is also on record. 4. On 17.12.1993, learned Sessions Judge, Haridwar framed the charge for the offence punishable under Section 8/20 of the Act against the appellant/ accused. The charge was read over and explained to the appellant/accused, who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined PW1 S.I. Maan Singh and P.W.2 Constable Subhash Singh. 6. Thereafter, the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him However, in defence, the appellant/accused did not produce any oral or documentary evidence. 7. After appreciating the evidence and after hearing learned Counsel for the parties, learned Sessions Judge, Haridwar vide his judgment and order dated 15.11.1995 convicted and sentenced the appellant/ accused as discussed above. Against the aforesaid judgment and order, the appellant/accused has preferred the present appeal. 8. To prove its case, the prosecution has examined PW1 S.I. Maan Singh who stated that on 18.7.1993 he was posted in P.S. Kotwali Haridwar. On that day he moved from the police station at 6:15 A.M. for investigation of the case crime no.859/93 and 860/93. After the investigation on 19.7.1993 he reached on the Roadways Bus Station. At about 4:00 P.M., Constable Subhash Singh (P.W.2) met him. Along with Subash Singh, he moved towards Chandi Ghat on patrolling duty. As soon as they reached at a bridge ahead of Shankracharya Chowk, then they were informed by an informant that a person was selling Charas beneath a tree in the bank of river. The said person was arrested by using force at about 4:30 P.M. at a distance of 15 steps towards Ganga River. On being arrested, that person disclosed his name Lakkar Nath (appellant-accused). When the appellant-accused was asked to be searched before a Gazetted Officer, then he told the police that they may take his search as he had full faith on them. On his search, from his right hand, about 25 grams Charas, wrapped in polythene, in the shape of 12 sticks, was recovered which was sealed on the spot and specimen of seal was also prepared, that Fard is Ex.Ka-1. He also identified the said Charas in the court, i.e. Ex.1. On the basis of that Fard, Constable Clerk Satyawan Singh prepared the Chik FIR, i.e. Ex.Ka-2. Entry was also made in the G.D., copy of which is on record. 9. The statement of P.W.1 S.I. Maan Singh also gets corroboration from the evidence of P.W.2 Constable Subhash Singh. . 10. Thereafter, the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him and stated that he has falsely been implicated in this case. In reply to question no.12, he stated that he was coming to Rishikesh by train and Constable Subhash Singh arrested him in a false case. However, in defence, the appellant/accused did not produce any oral or documentary evidence. 11. Learned amicus curiae for the appellant/ accused argued that the prosecution has not proved its case beyond reasonable doubt against the appellant- accused and it was not proved by the prosecution that the recovered item shown from the possession of appellant-accused was the same which was sent for chemical examination in the laboratory and for that even no link evidence was produced by the prosecution. I find substance in the argument put forth by learned amicus curiae for the appellant/accused due to the following reasons: (i) That it was stated in the recovery memo Ex.Ka.1 that specimen of seal was prepared on the spot, however no specimen of seal was filed by the prosecution in the trial court. (ii) That the report given by Scientific Laboratory (Ex.Ka-3) shows that 15 grams of Charas was received by them for the chemical examination, however as per the evidence of P.W.1 S.I. Maan Singh and recovery memo Ex.Ka-1, 25 grams of Charas in the form of 12 sticks was recovered and the total Charas was sealed on the spot. Hence, it also creates serious doubt on the prosecution story that the article which was sent to the laboratory was the same article which was said to be recovered from the possession of the appellant/accused. (iii) That there is no evidence in the file that when this recovered article, said to be Charas, was deposited in the Maalkhana and when it was taken from the Maalkhana and the same was put up before the competent court to send it to the laboratory for the chemical examination. (iv) That there is no documentary evidence or the copy of G.D. or any other evidence produced by the prosecution which could prove that who has deposited the said recovered Charas in the Maalkhana and who had taken the same from Maalkhana to the court and from court to the laboratory. (v) That the prosecution has not filed any evidence in the file that the recovered Charas was kept intact in the Maalkhana. It has also not come into evidence that for what period the said article remained in the Maalkhana and during that period, the same remained intact and no tampering had taken place with that. (vi) That the incident took place in the broad day light at 4:30 P.M. at the Haridwar city but the police party failed to produce any independent eyewitness. 12. 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.” 13. He has further placed 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.” 14. 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.” 15. 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.” 16. 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 article sent for the chemical examination was the same article shown to be recovered from the possession of the appellant/accused on 19.7.1993 at 4:30 P.M. 17. Learned amicus curiae for the appellant/ accused has further argued that though the recovery was made at the public place and the place falls on the busy road, but no public witness was shown in the recovery memo. Although it is not necessary that in each and every case public witnesses are required to prove the alleged recovery and it depends on the facts and circumstances of each and every case. But in the present case, as the recovery has shown to be on the busy public road where public witnesses are always available, but no effort was made to procure the public witnesses at the time of recovery, which creates doubt in the prosecution story. 18. Learned Counsel 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 he has cited the judgment 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 8/20 of the Act beyond reasonable doubt. As such, the impugned judgment and order dated 15.11.1995 passed by the Sessions Judge, Haridwar is not justified and the same is liable to be set aside. 22. Accordingly, the appeal is allowed. The appellant/accused Lakkar Nath is acquitted of the charge levelled against him. The judgment and order dated 15.11.1995 passed by the Sessions Judge, Haridwar in Special S.T. No.62 of 1993, State v. Lakkar Nath, convicting the appellant/accused under Section 8/20 of the Act and sentencing him to undergo R.I. 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 five years’ S.I. awarded to the appellant/accused, 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.) 13.8.2009 Rajeev Dang