IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1414 OF 2001 (OLD NO.1034 of 1996) Sanjay Chaudhary ……… Appellant Versus The State ……… Respondent Date: February 25, 2010 Sri M.S. Pal, Senior Advocate assisted by Sri T.P.S. Takuli, 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 14.05.1996 passed by the II Additional Sessions Judge, Nainital in Special Sessions Trial No.272 of 1993, State v. Sanjay Chaudhary, whereby the learned II Addl. 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. 2. Heard learned Counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that on 13.2.1993, P.W.4 S.O. Harish Chandra Singh along with P.W.2 Constable Khem Singh arrested the appellant-accused near the Dharamshala on Haldwani Road, Tallital, District 2 Nainital. 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 100 grams Charas in a polythene was said to be recovered from the possession of appellant-accused from the pocket of his jacket. The recovered Charas was sealed on the spot and specimen of seal was also prepared. Fard of recovery Ex.Ka-3 was also prepared on the spot. Along with the recovered article, the appellant-accused was taken to the Police Station where Chik FIR was prepared on the basis of recovery memo on 13.2.1993 at 3:30 A.M. by Head Constable Ramesh Chand (PW1), that Chik FIR is Ex.Ka-1. Entry was also made by him in the G.D., carbon copy thereof is Ex.Ka-2. Initial investigation of this case was entrusted to S.I. Kripal Singh Negi and on his transfer, the investigation was entrusted to PW3 S.I. Rajeev Kumar, who during the course of investigation inspected the place of occurrence and prepared the site plan of the place of occurrence, which is Ex.Ka-6. The recovered Charas was also sent for the chemical examination and the report given by Joint Director, Scientific Laboratory, Agra dated 15.3.1993 is Ex.Ka-5. 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, i.e. Ex.Ka-4. 4. On 26.06.1995, learned II Addl. Sessions Judge, Nainital 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. 3 5. To prove its case, the prosecution has examined PW1 H.C. Ramesh Chand, who prepared Chik FIR and made entry in the G.D., P.W.2 Constable Khem Singh, P.W.3 S.I. Rajeev Kumar, IO of the case and P.W.4 S.O. Harish Chand 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 II Addl. Sessions Judge, Nainital vide his judgment and order dated 14.05.1996 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 1 H.C. Ramesh Chand who has proved the Chik FIR prepared by him, i.e. Ex.Ka-1. He also proved the entry made by him in the G.D. in the same process, carbon copy of which is Ex.Ka-2. 9. P.W.4 S.O. Harish Chandra Singh stated that on 13.2.1993 he was posted as S.O. in P.S. Tallital. On that day he moved from the police station at 00:22 hours along with Constable Khem Singh. While returning towards Dharamshala near Haldwani Road, while doing the patrolling duty, a person was seeing coming and on seeing them, that person turned around. On suspicion, the said person was 4 arrested at about 2:10 A.M. On being arrested, that person disclosed his name Sanjay Chaudhary (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 pocket of his jacket, about 100 grams of Charas, wrapped in polythene, was recovered which was sealed on the spot and specimen of seal was also prepared. Fard of recovery is Ex.Ka-3. He also identified the said polythene in which Charas was wrapped in the court, i.e. Ex.1. 10. The statement of P.W.4 S.O. Harish Chandra Singh also gets corroboration from the evidence of P.W.2 Constable Khem Singh. 11. P.W.3 S.I. Rajeev Kumar has stated that initial investigation of this case was done by S.I. K.S. Negi and on his transfer, the investigation was entrusted to him. During investigation, he recorded the statements of witnesses and after completing the investigation, he filed the charge sheet, i.e. Ex.Ka-4. He also sent the contraband article for chemical examination and the report received is Ex.Ka-5. 12. 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. 13. Sri M.S. Pal, learned Senior Advocate 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 5 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 senior counsel for the appellant/accused due to the following reasons: (i) That it was stated in the recovery memo Ex.Ka.3 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-5) shows that 93 grams of Charas was received by them for the chemical examination, however as per the evidence of P.W.4 S.O. Harish Chandra Singh and recovery memo Ex.Ka-3, 100 grams of Charas 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 6 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. 14. In support of the above-said arguments, learned senior advocate 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.” 15. He has further placed reliance on the judgment delivered by Hon’ble Apex Court in the case of State of 7 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.” 16. In further support of his arguments, learned senior counsel 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 8 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.” 17. Learned senior counsel 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.” 18. 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, which was shown to be recovered from the possession of the appellant/accused on 13.2.1993 at 2:10 A.M. 19. 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: - 9 “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.” 20. 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...” 21. Thus from the evidence discussed above, the prosecution has also failed to prove the compliance of Section 57 of the Act. 22. In view of my above discussion and conclusion, it is held that the prosecution has failed to prove the case 10 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 14.05.1996 passed by the II Addl. Sessions Judge, Nainital is not justified and the same is liable to be set aside. 23. Accordingly, the appeal is allowed. The appellant/accused is acquitted of the charge levelled against him. The judgment and order dated 14.05.1996 passed by the II Addl. Sessions Judge, Nainital in Special S.T. No.272 of 1993, State v. Sanjay Chaudhary, convicting the appellant/accused under Section 8/20 of the Act and sentencing him to undergo R.I. for a period of 10 years, is hereby set aside. The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. 24. Let the lower court record be sent back. (Dharam Veer, J.) 25.02.2010 Rajeev Dang