IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.159 of 2011. Decided on: August 29, 2011. ____________________________________________________________ Yog Raj . ……..Appellant. Versus State of H.P. ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. N.K.Tomar, Advocate. For the respondent : Mr. P.M.Negi, Dy. Advocate General. _________________________________________________________ SURINDER SINGH,J (ora): The appellant herein was charge- sheeted, tried and convicted by the learned trial Court in Sessions trial No.53 of 2009, on 19.4.2011, for the offence punishable under Section 20 (b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, in short ‘the Act’, for allegedly keeping in his possession the “non-commercial quantity” of Charas and sentenced to undergo rigorous imprisonment for a period of three year and to pay a fine of `25,000/- and in default of payment of fine to further undergo imprisonment for one year. His pre-trial period of Whether reporters of the Local papers are allowed to see the judgment? - 2 - detention was set of against the sentence passed. Feeling aggrieved by the impugned judgment of conviction and sentence. Hence, the present appeal by the convict. 2. In short the prosecution story as emerges from the evidence on record can be stated thus. On 29th April, 2008, the appellant, hereinafter to be referred as ‘the accused’, was travelling in a private Bus bearing registration No.HP-65-6544, driver whereof was PW3 Vidya Sagar and PW12 Mohd. Riyaz its conductor. Accused was occupant of Seat No.41. PW13 HC Kartar Singh of Police Station Bhuntar was engaged in traffic checking alongwith HC Gopal Chand and Constables Ramesh Kumar, Lalit Kumar and Hem Raj, near Forest check post Baujra. (ii) Around 6 p.m., bus aforesaid came from Kullu side. It was stopped for checking. PW13 HC Kartar Singh in the process of checking noticed the accused occupying the aforesaid seat holding the black coloured bag in his lap, which has inscription of the word “Diesel”. The bag aforesaid was - 3 - checked in the presence of PW3 Vidya Sagar Driver and PW12 Mohd. Riyaz Conductor. It was found containing one packet of Charas wrapped in brown coloured (Khakhi) polythene packet. It was also having the Voters’ Identity Card Ext.PW2/E of the accused issued by the Election Commission of India in the outer pocket of bag. The recovered stuff was in the shape of billets, it was weighed on the electronic scale and it came out to be 780 grams. (iii) Two samples of 25 grams each from the recovered bulk were drawn and sealed separately with seal producing the impression of English alphabet “M”. Remaining bulk (730 grams) was put in a paper envelope. Polythene with which the Charas was wrapped was also wrapped with this Charas in separate piece of cloth and sealed with the same seal. The facsimile of the seal used was separately taken on a piece of cloth, which is Ext.PW2/A. NCB - 4 - forms in triplicate were filled in. The facsimile of the seal used were affixed against the relevant column, one of NCB form is Ext.PW7/B. Seal after its use was handed to PW3 Vidya Chand, driver of the bus. (iv) Case property was taken into possession vide seizure memo Ext.PW2/B after obtaining the signatures of the witnesses aforesaid. Its copy was supplied to the accused free of cost. His signatures were obtained to this effect. (v) The bag and other articles were also taken into possession vide seizure memo Ext.PW2/C. (vi) Police also took photographs Exts.PW2/D1 to D3, the negatives whereof are Exts.PW2/D4 to D6 stated to have been taken by PW2 C. Umesh Kumar. (vii) Ruqa Ext.PW13/A was prepared and sent through PW1 C. Lalit Kumar for the registration of the FIR Ext.PW11/A. - 5 - (viii) Accused was arrested and grounds of his arrest were informed to him vide memo Ext.PW2/G. (ix) The special report Ext.PW4/A of search and seizure was sent to the Officer superior within the statutory period. (x) Case property was produced before PW11 Vidya Chand, the then SHO of Police Station, for resealing. He resealed the case property with seal impression producing the English alphabet “A”. He also took the facsimile of the said seal on the NCB form and handed over the case property alongwith NCB forms to PW7 MHC Ram Krishan after taking sample seal on Ext.PW11/B used by him for resealing. PW7 MHC aforesaid deposited the case property in the Malkhana and made its entry in the relevant register, abstract whereof is Ext.PW7/A. (xi) On 30th April, 2008, one of the sample parcels was handed over by PW7 aforesaid to PW5 C. Pritam Singh alongwith - 6 - sample of seals “M” and “A”, NCB forms in triplicate, photocopy of the FIR and seizure memo alongwith police docket vide RC No.116/2008 for its deposit in the Laboratory for analysis. Report of the analysis is Ext.PW8/A whereby the quantity of the resin in the sample was found to be 38.67% weight-in-weight. (xii) Police recorded statements of the witnesses and prepared site plan Ext.PW13/B. (xiii) After completing the investigation, challan was presented in the Court for the trial of the accused. He was accordingly charge-sheeted for the offence aforesaid and it was then the remaining bulk was also sent for analysis to the Laboratory through HHC Tek Singh. The examination report is Ext.PA, which shows 37.89% resin, the extract of Cannabis and sample of Charas. (xiv) After recording the statements of PW1 C. Lalit Kumar and PW2 C. Umesh Kumar on 8.3.2010, supplementary challan was filed in the Court with respect to second - 7 - report of analysis (Ext.PA), copy whereof was supplied and the remaining witnesses were examined thereafter. Report Ext.PA aforesaid was tendered in evidence before the closure of evidence by the learned Public Prosecutor vide his statement dated 25.5.2010, without examining the Constable who took the remaining bulk to the Laboratory. 3. The accused was examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances which were found attendant upon him. He also disowned the bag and alleged his false implication in the case. When called upon to enter into his defence, he examined DW-1 Satan Kumar, who was running scrap business in a shop at Bajaura. He stated, police was enquiring about the abandoned bag found inside the bus, to which accused refused and his identity card was taken by the police, thereafter he left the said place and did not know what happened. 4. Learned trial Court disbelieved the defence raised, however believing the prosecution - 8 - evidence, convicted and sentence the accused as aforesaid. 5. Shri N.K. Tomar, learned counsel for the accused argued that the prosecution could not prove the ownership and possession of the bag to be that of the accused. He further pointed out that there is difference of the resin contents in both the reports including the material difference in the weight of the remaining bulk and even both the reports could not be connected with the alleged recovered stuff. Since these facts were not taken into consideration by the learned trial Court, therefore material prejudice has been caused. 6. Contra, Shri P.M. Negi, learned Deputy Advocate General for the State supported the impugned judgment of conviction and sentence. 7. I have given my thoughtful consideration to the respective contentions of the parties and have carefully, cautiously and meticulously examined every aspect of the case in order to find out whether the accused could be connected with the offence aforesaid. - 9 - 8. PW3 Vidya Sagar, Driver did not support the case of the prosecution as such, he was declared hostile, whereas PW12 Mohammed Riyaz Conductor stated about the recovery of Charas from the bag but according to him it was on the rack of the bus. Though he was turned hostile, but in cross-examination, he denied the suggestion that the bag was not owned by the accused. He was also categoric about the recovery of his Identity Card Ext.PW2/E from the bag as alleged. The recovery of the bag of accused with recovered stuff is substantiated by the Investigation Officer PW13 HC Kartar Singh, PW1 C.Lalit Kumar and PW2 C. Umesh Kumar. 9. Thus, the evidence in the instant case is consistent to the extent that some substance was recovered from the possession of the accused on the day of alleged incident from his bag and he also stood connected with that bag as per his identity card Ext.PW2/E, but the moot question is that whether the substance which was recovered from him was Charas? The sample parcels and the remaining bulk were sealed on the spot with seal - 10 - impression “M” as testified by PW13 HC Kartar Singh. It also stands proved that it was produced before PW11 SHO Vidya Chand, who resealed the case property with seal impression “A” and sample of seal was also taken by him separately and its depositing in the Malkhana with PW7 MHC Ram Krishan is proved. Its entry in the Malkhana register also finds mentioned. Further the endorsement made on 30.4.2008 in the Malkhana register which is depicted in the abstract Ext.PW7/A also reveals that one sample parcel was sent for analysis through PW5 C. Pritam Singh alongwith sample seals “M” and “A”, NCB forms in triplicate and photocopy of the FIR, seizure memo and other concerned documents, which further finds mentioned in the RC Ext.PW7/C. 10. PW5 C. Pritam Singh stated that these articles were deposited in the Laboratory on 1.5.2008 which fact finds mentioned in the report of the chemical analysis (Ext.PW8/A), but in this report against column No.5, it shows the receipt of two parcels, whereas Pritam Singh had taken only one. From where the second parcel appeared remains a mystery. - 11 - 11. Further, the Chemical Examiner in his report has not certified having received either the sample of seal, NCB forms and the police docket nor he certified that the seals which were found on the sample corresponded to either of the seals separately sent or the facsimile of which were on the NCB forms. There is also no reason for its non- certification. In that event, I fail to understand how the sample in question could be connected with the recovered stuff or that it was not tampered with. 12. Further the result of the examination states about the presence of cannabinols including the presence of tetrahydrocannabinol in each samples so examined, meaning thereby that the samples so examined were more than one, which were examined by them. Although on the microscopic examination in the samples so analysed it indicates the presence of cystolithic hair and the resin contents of 38.67% weight-in-weight, but the source of resin has also not been mentioned. Certainly the presence of cannabinols in the sample aforesaid does not correspond to the definition of Charas under the Act. The similar type of report was - 12 - examined by the Division Bench of this Court in State of H.P. v. Raj Kumar Cr.A. No.314 of 2008 connected with Sunil Kumar’s case [Latest HLJ 2010 (HP 207] and it was held that presence of tetrahydro cannabinol and cystolithic hair as per the report of Expert does not establish the stuff to be that of Charas or any other offending matter under the Act, in absence of the resin contents. 13. Insofar as the second report Ext.PA with respect to examination of remaining bulk is concerned, it is alleged to have been sent through HHC Tek Singh No.390, it is stated to have accompanied the NCB forms and there is a certificate in the report that the seals were found intact and tallied with the specimen seals sent by the forwarding authority on NCB form-I. There is one NCB form on record i.e. Ext.PW7/B which was only accompanying one sample parcel of 25 grams sent to the Director, Forensic Science Laboratory, Junga through PW5 C. Pritam Singh and not HHC Tek Singh and another NCB form against which the remaining bulk was sent is not there nor there is any reference under whose authority or order the remaining bulk - 13 - was sent and examined in the Laboratory. The Road Certificate against which it was sent has not been placed and proved on record. PW7 MHC Ram Krishan only stated that remaining bulk was sent on 18.12.2009 through HHC Tek Singh aforesaid, who handed over the receipt on the Road Certificate on return, but as already stated above, no such documents are on record, even HHC Tek Singh was not examined. 14. The remaining bulk was 780 grams, but the bulk received in the Laboratory, was 682 grams short of 48 grams, which also does not connect the report with the stuff and because of variation in weight to the above extent, to my mind it appears to be material discrepancy. 15. Further, the remaining bulk after its examination is stated to have been returned to the authority from where it was received for analysis with specimen seal of Laboratory. Even the remaining bulk, if any, was received by the prosecution in this case, it was not exhibited to any of the witness in order to link whether it was that bulk, examined in the Laboratory, really pertained to this case. - 14 - 16. For the aforesaid reasons, I find that both the reports could not be connected with the stuff recovered from the accused, as such prosecution could not prove the case against the accused in accordance with law. Therefore, the appeal filed by the accused is allowed. The judgment of conviction and sentence passed by the learned trial Court is hereby set-aside. Consequently, the accused is acquitted for the offence charged against him by giving the benefit of doubt. 17. The accused is stated to have been undergoing the sentence in this case. He be released forthwith, if not required in any other case. 18. The Registry of this Court is hereby directed to send the release warrant of the accused to the Superintendent Jail concerned. 19. The matter stands disposed of. Send down the record. August 29, 2011. (Surinder Singh), (Pds) Judge.