IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 392 of 2001 (Old No. 1800 of 1997) Laxman Singh S/o Shri Trilok Singh R/o Village Padampuri, Tehsil Dhari P.S. Tallital, District Nainital ……….Appellant Versus State of U.P. (now State of Uttarakhand) …………Respondent Shri R.S. Sammal, Advocate, with Shri R.S. Bist, Advocate, present for the appellant. Shri B.S. Parihar, Brief Holder, present for the state. Hon’ble Prafulla C. Pant, J. This appeal , preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C) is directed against the judgment and order dated 28.08.1997, passed by III Additional Sessions Judge, Nainital, in Special Sessions Trial No. 63 of 1993, whereby said court has convicted the appellant Laxman Singh under section 20 read 2 with section 22 of Narcotic Drugs & Psychotropics Substances Act, 1985(for short N.D.P.S. Act), and sentenced him rigorous imprisonment for a period of 10 years and also directed him to pay fine of Rs. 1,00,000/- (Rupees one lac only) in default of payment of which the convict has been directed to undergo rigorous imprisonment for a further period of 1 year. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that on 08.09.1992, P.W.1 Sub-Inspector Harish Chandra Singh of Police Station Tallital, District Nainital, alongwith other police personnel was on patrol duty on Nainital-Bhowali Road when he got a information that two persons are carrying CHARAS(cannabis) illegally. Prosecution case is that the police party on receiving said information, made attempts to get some independent witnesses however no one agreed to be a witness. After sometime, at about 12:30 hours (noon) on Nainital- Bhowali Road near cremation Ghat, accused/appellant Laxman Singh alongwith 3 another person was seen coming. According to the police, they (police) made firstly search of their own person to be satisfied that no one is in possession of any illegal item. Thereafter, they stopped the two persons coming towards them, one of them disclosed his name as Laxman Singh (appellant) son of Trilok Singh, R/o Padampuri, and another disclosed his name as Jaswant Singh (since deceased) son of Darar Singh R/o Dhanachuli. The police party told the two that they had information about the fact that they (accused) had CHARAS (cannabis). The policemen further told the two accused that they are at liberty to get their search done before Gazetted Officer or Magistrate. However, the two accused on finding themselves caught by the policemen told that the police party may search their person. On this, the policemen made search of person of the two accused. Accused/appellant Laxman Singh was found in possession of 2kg of charas (cannabis). The another one was found in possession of 100gm of charas. They failed to show license to carry the psychotropic substance. Finding that the two have committed offence punishable under section 20 of Narcotic Drugs -4- and Psychotropic Substances Act, 1985. The policemen took the seized item (CHARAS) in their possession, sealed it and prepared recovery memo (Ex. A1). Both the accused were arrested and FIR was lodged at Police Station Tallital, Nainital, which was registered as crime no. 357 of 1992 . Investigation was taken up by P.W.2 Kishan Singh Hyanki , the then Station House Officer of Police Station Bhowali. After interrogating witnesses and completion of investigation, charge sheet (Ex. A6) was filed by the Investigation Officer against the accused/appellant Laxman Singh. It appears that separate charge sheet was filed against Jaswant Singh. However, he (Jaswant Singh) died during trial and his case stood abated. 4. The Special Sessions Court, on receipt of the charge sheet, appears to have gave necessary copies to the accused as required under section 207 of Cr.P.C.. After hearing the parties, on 11.10.1993, a charge of offence punishable under section 20 read with section 22 of Narcotic Drugs and Psychotropic Substances Act, 1985, (for short NDPS Act) was framed against the accused/appellant Laxman Singh who pleaded not -5- guilty and claimed to be tried. On this, prosecution got examined P.W.1 Sub-Inspector Harish Chandra Singh complainant/eye witness ,P.W.2 Sub-Inspector Kishan Singh Hyanki (Investigating Officer) and P.W.3 Head-Constable Nafees Ahmad (eye witness of the recovery). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which the accused pleaded that he has falsely been implicated in the case. However, in defence no evidence was given. The trial court after hearing the parties, found accused/appellant Laxman Singh guilty of charge of offence punishable under section 20/22 of NDPS Act, 1985. After hearing on sentence, the trial court sentenced him rigorous imprisonment for a period of 10 years and also directed him to pay fine of Rs. 1,00,000/- (Rupees one lac only). Aggrieved by said judgment and order dated 28.08.1997, passed by III Additional Sessions Judge, Nainital, in Special Session Trial No. 63 of 1993, this appeal was filed before Allahabad High Court by the convict on 22.10.1997, where it was admitted on 23.10.1997. The appeal is received by this Court under section 35 U.P. Reorganization Act, 2000 (Central Act 29 of -6- 2000) for its disposal. 5. P.W.1 Sub-Inspector Harish Chandra Singh has stated that on 08.09.1992, he alongwith other police personnel was on duty on Nainital-Bhowali Road, and received information at 11:35 a.m., that two persons are coming from the side of Pines who are carrying cannabis illegally. The witness further states that he sent Head Constable Nafees Ahmad (P.W.3) to search independent eye witnesses but no one turned up. On this, according to the witness police personnel searched person of each other and there was nothing illegal in their possession. After sometime two persons were seen coming from the side of Pines and one of them on inquiry disclosed his name as Laxman Singh (appellant) son of Trilok Singh. He and his associate were asked by the police party that they (police) had information about cannabis in the possession of the two, and they are at liberty if they wish to be searched before any Gazetted Officer or Magistrate. According to the P.W.1 Harish Chandra Singh (Sub-Inspector), the accused/appellant Laxman Singh and his associate allowed them (police party) to take their search. -7- On this, at about 12:30 P.M., Laxman Singh (appellant) was found in possession of 2kg of charas (Cannabis) he had no license to possess the same. According to the witness,thereafter, the police took charas in their possession and prepared recovery memo (Ex. A1).P.W1. Harish Chandra Singh (Sub-Inspector) further told that about 14:30 hours on the same day the FIR (Ex. A2) was got lodged at Police Station Tallital, Nainital, against the accused/appellant Laxman Singh. 6. P.W.3 Head Constable Nafees Ahmad has supported the prosecution case narrated by P.W.1 Harish Chandra Singh. 7. The trial court believed the statement of the two witnesses mentioned above and held that the accused Laxman Singh is guilty of charge of offence punishable under section 20/22 N.D.P.S., Act. Said finding of the court is challenged on behalf of the convict (appellant) before this Court on several grounds. It is pleaded before this Court that it is hard to believe that at noon the police did not get any public witness of recovery. It is also pleaded that police had made no attempt to weigh -8- the cannabis said to have been recovered from Laxman Singh (appellant) and merely by guess work mentioned its quantity 2Kg. It is also contended before this Court, that the police failed to comply with the provisions contained in section 50, 52, 55 and 57 of the N.D.P.S. Act, 1985. Lastly, it is contended that there is no link evidence in the present case to communicate the samples sent for chemical analysis, was the one from the recovered item and said to have been seized from the appellant. 8. Admittedly, there is no public witness of the recovery of cannabis from the possession of the accused/appellant Laxman Singh. It is pertinent to mention here that the recovery is shown at about noon. From the recovery memo (Ex.A1) and the statement of the P.W.1 Sub-Inspector Harish Chandra Singh, it is clear that the police party did not weigh the quantity of cannabis said to have been recovered from the possession of the accused/appellant Laxman Singh. Not only this, it appears that no sample is taken from the item said to have been recovered from appellant at the time of preparing recovery memo (Ex.A1). In this -9- connection the attention of this Court is drawn on behalf of the appellant to the case of (Mr.) Harman Chrust vs. State 2005 (1) UD page 727 (at page 734) which reads as under:- 25. Another point, which creates suspicion about authenticity of the prosecution story, is that the recovery and seizure has not been made in accordance with the standing instruction No. 1/88 at 15.3.1988 issued by the Narcotics Control Bureau,New Delhi. Clause 1.9 of the instruction 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 -10- 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 envelop containing the sample will also have a reference of the test memo. The seal should be legible. This envelope along with 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.' Aforesaid instruction is not complied in present case, also. 9. Not only the above short comings, there is no evidence as to the fact that the sample taken from the recovered item from the appellant remained sealed and untempered till it was handed over for chemical examination. Perusal of the lower court record shows that in the letter sent by the Incharge Sessions Judge, Nainital, on 21.10.1992, to the Director of Chemical Analysis Centre , Agra (paper no. 8 Ka/2) 50gm is the -11- quantity mentioned as weight of the sample sent in respect of crime no. 357 of 1992. But the report of chemical analysis dated 05.01.1993 (Ex. A5) disclosed that the quantity of charas in respect of crime no. 357 of 1992 was found to be 35gms. It further makes prosecution story doubtful as to the manner and the quantity shown to have been recovered from the appellant. 10. Apart from this, section 57 of N.D.P.S. Act, 1985, requires that whenever any person makes any arrest or seizure under this Act, he shall, within 48 hours next after such arrest or seizure, make a full report of all the particulars of the arrest or seizure to his immediate official superior. In the cross-examination P.W.1 Sub-Inspector Harish Chandra Singh says that he had telephonically given information to its senior officer and he admitted that he had not sent any written report. This kind of oral assertion does not inspire confidence in the testimony of the witness. In the above circumstances, this Court is of the opinion that the trial court has committed error or law in holding the accused/appellant Laxman Singh guilty only on the ground that 2kg charas -12- could not have been planted. Also, prosecution has failed to file the compliance of provision contained in section 55 of the Act. 11. For the reasons as discussed above, in the above circumstances,this Court is of the view that it cannot be said that the prosecution has successfully proved beyond reasonable doubt that the accused/appellant Laxman Singh was found in possession of 2Kg of charas (Cannabis ). That being so, the accused/appellant is entitled to the benefit reasonable doubt. Accordingly, he is entitled to be acquitted from the charge of offence punishable under section 20/22 of N.D.P.S. Act, 1985. Therefore, this appeal is allowed. The impugned judgment and order dated 28.08.1997, in Special Sessions Trial No. 63 of 1993, is set aside. Conviction and sentence recorded by trial court against accused/appellant Laxman Singh stands set-aside. He is acquitted of the charge of offence punishable under section 20/22 N.D.P.S. Act, 1985. He is on bail. He need not to surrender. sureties are discharged. Lower court record be sent back. (Prafulla C. Pant, J) Dt. 27.07.2010 Parul