IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 211 of 2007. Judgment reserved on : 16.6.2008. Date of decision: 23.7.2008. Satish Rana .. ..Appellant Versus State of H.P. .. ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? yes For the appellant: Mr.Anup Chitkara,Advocate For the respondent: Mr.Vivek Thakur, Addl.A.G. _____________________________________________________ Deepak Gupta, J. This appeal under Section 36-B of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) is directed against the judgment of the learned Special Judge, Mandi dated 15.5.2007 passed in Session trial No.29/2004 whereby the appellant (hereinafter referred to as the accused) has been convicted of having committed an offence punishable under Section 20 of the NDPS Act and has been sentenced to undergo rigorous imprisonment of five years and to pay fine of Rs.50,00/-. In case of default of payment of fine the accused has been directed to undergo further imprisonment for one year. The prosecution version is that on 12.3.2004 at about 4.30 p.m. A.S.I. Paras Ram PW-10 along with H.C. Parkash Chand, H.C. Roshan Lal and Constable Jagat Ram …2… PW-1 were on Naka duty and had laid a barricade at Pandoh Barrier on National Highway No.21. At about 5.10 p.m. a private bus belonging to Hamsafar Bus Services bearing registration No.HP-33-5630 came from Kullu Side. The bus was stopped. The police officials entered the bus and checked the luggage of the passengers. There were hardly 10 to 12 passengers in the bus. The accused Satish Rana was sitting on seat No.25. It was alleged that he was carrying a bag between his legs and on inquiry by the police he disclosed his name. Since he was acting nervously, the police officials become suspicious and thereafter a formal search of the bag was carried out in the presence of PW-2 Lalman, Conductor of the bus and PW-5 Shyam Lal another passenger in the Bus. During this search amongst other items two packets of ‘charas’ were recovered from the bag. On weighment the ‘charas’ was found to be one k.g. The Investigating Officer took two samples of 25 gms. from each of the packets and put them in parcels which were sealed with seal ‘D’. Remaining ‘charas’ was put in a sealed parcel which was also sealed with seal ‘D’. Specimen impression of the seal was also taken on cloth Ext.PE. After use, the seal was handed over to the Conductor Lalman. The Investigating Officer filled up the search and seizure memo Ext.PB which was signed by the witnesses and the accused. Thereafter, the Investigating Officer sent a ruqua Ext.PG through PW-1 constable Jagat Ram who handed over the same to PW-4 …3… N.K. Sharma. On the basis of this ruqua, FIR Ext.PH was registered. PW-4 made an endorsement on the ruqua and returned the case file to PW-1 Jagat Ram who then returned it to the Investigating Officer on the spot. PW-10 Paras Ram prepared the spot map Ext.PP. Other documentation was done. After completion of the investigation on the spot PW-10 Paras Ram produced the case property before PW-4 who re-sealed the parcels with seal ‘R’ which was also endorsed on column No.7 of the NCB form. Thereafter, the case property was entrusted to PW-8 MHC Baldev Singh and entry in this regard was made in the Malkhana register extract of which is Ext.PN. On 15.3.2004 HHC Baldev Singh sent one sample parcel along with NCB form, copy of FIR etc. through PW-9 HHC Sarwan to CTL, Kandaghat. Special report Ext.PL of this case was sent under Section 57 of the Act to the Superintendent of Police, Mandi and was entered in the register by PW-6 Nand Lal. Report of the CTL, Kandaghat was received which showed that the samples contained resin to the extent of 34.11% and opinion was given that the exhibits contained the contents of ‘charas’. Thereafter, challan was filed in the Court and charges were framed against the accused. The accused pleaded not guilty and claimed trial. The prosecution examined 10 witnesses. The statement of the accused was recorded under Section 313 Cr.P.C. and the accused examined one defence witness. …4… The learned Sessions Judge relying upon the prosecution evidence produced before him has convicted the accused and sentenced him as mentioned hereinabove. Aggrieved by the said judgment the present appeal has been filed. I have heard Sh.Anup Chitkara, learned counsel for the appellant and Sh.Vivek Thakur, learned Additional Advocate General for the State. The main contentions raised by Sh.Anup Chitkara on behalf of the appellant are that there is no evidence to link the sample sent to the Laboratory with the case property. It is urged that if the samples were tested in the Laboratory how could both the samples be exhibited in the Court as Exts.P-8 and P-9. It is also contended that the seal ‘D’ was never handed over to Lalman who has denied the receipt of such seal and therefore there is possibility of the sample having been tampered with. In support of his case Sh.Chitkara has also contended that in NCB form Ext.PJ which is alleged to have been filled on the spot, column No.6 has been filled in and there is mention of seal ‘R’ also though later the same has been scored off. It is next contended that none of the independent witnesses has supported the prosecution case and in view of the missing links and the contradictory evidence the accused could not have been convicted. According to Sh.Chitkara the bag was not recovered from the person of the accused but from the shelf above the seat and there is nothing to link the bag with the accused. He has also raised …5… certain other questions which shall be dealt with hereinafter. On the other hand Sh.Vivek Thakur, learned Additional Advocate General has supported the judgment of the learned Sessions Judge. A perusal of the evidence on record shows that out of the patrol party two witnesses HHC Jagat Ram PW- 1 and A.S.I Paras Ram PW-10 have been examined. They both have supported the prosecution version. According to these witnesses the accused had kept a bag between his legs. The accused had disclosed his name and on search of the bag ‘charas’ was found. Thereafter, two samples of 25 gms. each were separated from the bulk and put in two sealed separate parcels sealed with seal ‘D’ at four places. These two parcels were marked as A-1 & A-2. The remaining ‘charas’ was also put in a separate parcel. Both the witnesses also state that the NCB form was filled in by the Investigating Officer at the spot. In cross examination Jagat Ram states that the accused was sitting in the middle of the bus. He admits that there was no name tag of the accused attached with the bag nor any other identity card or document revealing the name of the person owning the bag. He denied the suggestion that the bag was recovered from the shelf of the bus. PW-2 Lalman did not support the prosecution case. Though he admits that the bus was stopped and searched, according to him he was not present inside the …6… bus but was standing outside the bus when the search was conducted. This witness was cross examined by the prosecution. According to him the accused was sitting on a seat just ahead of the rear door. He denied the suggestion that the bag was lying between the legs of the accused and stated that it was lying on the shelf attached to the roof of the bus. He denied that the recovery was made in his presence. He however admitted his signatures on the recovery memo Ext.PA. He states that he was not put under any threat or pressure by the police when he signed the same. He admits that he does not normally sign blank papers. According to him he signed memo Ext.PA at the instance of the police. The parcels containing the bag and other items recovered from the alleged bag were unsealed in the presence of this witness who denied that anything had been recovered in his presence. He however admitted his signatures on the seizure memo. PW-3 Jitender Kumar is the driver of the bus. He also turned hostile and according to him no search was conducted in his presence. However, during cross examination he admitted that in the presence of Lalman and Shyam Lal police conducted search of the bag. He also admits that two packets Exts.P6 & P-7 containing ‘charas’ were recovered from the bag. He also admitted that police separated two samples which were put in cloth parcels and sealed with seal ‘D’. During cross examination by the accused he states that he was called …7… by the police 10-15 minutes after the police had entered the bus. He also states that no personal search of the accused was carried out in his presence. PW-4 N.K. Sharma has proved the receipt of the ruqua and the preparation of the FIR. He also states that the Investigating Officer had produced the sample parcels and bulk parcel sealed with seal ‘D’. He thereafter re-sealed all the parcels with seal ‘R’ and then deposited the case property with the MHC. PW-5 Shyam Lal was a passenger in the bus. According to him he was asleep in the bus and nothing was recovered in his presence. He was declared hostile and cross examined by the prosecution. He admits that he is a teacher and can read and write Hindi as well as English. He has also admitted that the recovery memo Ext.PA has been signed by him. According to him since he was in a hurry he signed the same at the asking of the police. He has feigned ignorance about the search of the bag, recovery of the ‘charas’ and other items from the bag. PWs 6 and 7 are only formal in nature. PW-8 states that the two sample parcels and one bulk parcel sealed with seal ‘R’ along with NCB form, samples, seals ‘D’ and ‘R’ and seizure memo were deposited with him and he made entry with regard to the same in the malkhana register. He thereafter sent one sample to the CTL, Kandaghat through HHC Sarwan Kumar along with the NCB forms, seal impressions ‘D’ and ‘R’ and other documents. …8… The sample sent to CTL Kandaghat was marked as A-1. He has also proved the copy of the road certificate Ext.PO. PW-9 states that he carried the sample from Mandi to Kandaghat and on his return handed over the road certificate to the MHC. Statement of PW-10 Paras Ram is in line with the prosecution case. In cross examination a suggestion has been put to him that the NCB forms were not filled in at the spot. He admits that the NCB forms does not bear his signatures nor carries his name. According to him he filled column No.8 of the form at the instance of the SHO. From the discussion of the above evidence it is apparent that the independent witnesses have not supported he prosecution version at all. However, the law in this regard is absolutely well settled that conviction can be based only on the basis of the police witnesses. However, there is an important caveat i.e. that when the independent witnesses turn hostile the prosecution evidence should be scrutinized with greater care and testimony. From the perusal of the entire evidence discussed hereinabove it is apparent that the accused was a passenger in the bus. It is also clear that a bag was recovered from the bus and there was some contrabend alleged to be ‘charas’ in the bag. PW-3 Jitender Kumar, driver of the bus has clearly admitted that search of the bag was conducted in the presence of PW-2 Lalman and …9… Shyam Lal PW-5. No doubt PW-2 and PW-5 have turned hostile and have not supported the prosecution case. However, both of them have admitted that they have signed the recovery memo Ext.PA and other documents. PW-5 is a teacher. It cannot be expected of such a teacher to sign a document without even reading the contents thereof. As far as Lalman is concerned he initially states that he was not put under any threat or pressure by the police though later on he states that he signed the documents at the instance of the police. Keeping in view all the aforesaid facts, no reliance can be placed on the testimony of Lalman or Shyam Lal. Apparently they have been bought over by the accused. However, this is no ground to discard the evidence of the prosecution witnesses especially PW-1 and PW-10. Their evidence is corroborated in material terms by PW-3 and also by the fact that the hostile witnesses PW-2 and PW-5 have admitted that they signed the seizure memo Ext.PA. Therefore, I have no hesitation in coming to the conclusion that the prosecution has proved beyond doubt that a bag was recovered from the accused which contained the alleged contraband. Having held so I am afraid that the prosecution has failed to link this alleged contraband with the sample which was analyzed at the CTL, Kandaghat. There are various facts and circumstances …10… which clearly show that the investigation has not been fair and documents appear to have been tampered with. The NCB form Ext.PJ is alleged to have been filled in on the spot. Column No.6 of the Form reads as follows: “6. No. of samples and marking Two sample each. One each of them for One seal with 4/4 Identification. Seal of “R” “D” The alphabet “R” has been scored off in column 6. Admittedly seal “R” was affixed by the SHO in the Police Station. If the NCB form was filled on the spot then the question of mentioning “R” in the NCB form did not arise at that stage. This clearly indicates that the NCB form was not filled in on the spot. The allegation of the prosecution is that seal “D: was affixed on the three samples prepared at the spot and the same was handed over to PW-2 Lalman. Lalman denied that any seal was handed over to him. The prosecution has failed to prove any written document on record to show that the seal was in fact handed over to PW-2 Lalman. Neither the search memo Ext.PA nor the search and seizure form Ext.PB nor the personal search memo Ext.PC show that the seal was handed over to Lalman. Another very important infirmity in the prosecution case is that according to the prosecution two samples were taken on the spot and they were sealed in two separate parcels A-1 and A-2. As per the …11… evidence of the MHC PW-8 he had sent sample mark A-1 to CTL, Kandaghat. The sample was obviously analyzed at Kandaghat. There is no material whatsoever on record to show that this sample or any portion of it after analysis was returned by the CTL, Kandaghat to the police. Surprisingly in Court both the parcels containing the samples have been produced as Exts.P-8 and P-9. The parcel containing bulk ‘charas’ has also been produced as Ext.P-1. There is no explanation as to how one of the parcels which was sent to the CTL, Kandaghat came back into the possession of the police. This raises a grave doubt that the sample which was sent to the CTL, Kandaghat was not the one which was seized and sealed on the spot. Another disturbing aspect of the case is that PW-4 in his statement has clearly stated that the parcels were re-sealed with seal “R”. Obviously if the sample had been sent to the CTL, Kandaghat it could have been tested and analyzed only after the seals were broken. It could not have been re-sealed with the same seal. Therefore, how could Ext.P-4 identify the sample parcels Exts.P-8 and P-9 to be the same which were kept by him. He obviously identified them only on the basis of the seal. This also indicates that what was sent to the Laboratory was not the sample seized at the spot. Even PW-5 Shyam Lal has identified the sample parcels Exts.P-8 and P-9 and there is no explanation how the second parcel came back from the Laboratory. …12… Keeping in view all the aforesaid facts and circumstances, in my opinion, the prosecution has failed to prove that seal “D” was ever handed over to Lalman. It has also failed to prove that the sample sent to the Laboratory was the one which was seized and prepared at the spot. As observed above, there is no explanation as to how the sample came back from the Laboratory and how the same was produced and exhibited in Court. Since the prosecution has failed to link the report of the Laboratory and the sample analyzed by the Laboratory with the sample seized at the spot and there appears to be serious doubt as to whether seal “D” was actually handed over to PW-2 Lalman, there is a missing link in the prosecution case and this missing link is fatal to the case of the prosecution. It was for the prosecution to show that the report of the analysts relates to the sample seized at the spot. This it has failed to do. In view of the above discussion, the appeal is allowed, the judgment and conviction recorded by the learned Special Judge as well as the sentence imposed by him is set-aside and the appellant is directed to be released forthwith unless required in some other case. July 23, 2008. ( Deepak Gupta ) PV Judge