HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 12 of 2000 (Old no. 674 of 1991) Krishan Kumar Sharma S/o Peru, R/o village Arti, P.S. Kairana, District MuzaffarnAgra. ------- Accused/appellant. Versus The State. ------- Respondent Sri Sandeep Tandon, learned counsel for the appellant, Sri M.A. Khan, learned Brief Holder for the State. Dated: October 22, 2008 Hon’ble Dharam Veer, J. This appeal preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 27.02.1991 passed by the Sessions Judge, Pithoragarh in Sessions Trial no. 33 of 1990 State vs. Krishan Kumar Sharma, whereby the learned Sessions Judge convicted the accused/appellant under Section 20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to ‘in brief’ as the Act) and awarded sentence to undergo rigorous imprisonment for a period of 10 years and with a fine of Rs. One Lac. It was also directed that in default of payment of fine he shall further undergo rigorous imprisonment for 2 years’. 2. Heard Sri Sandeep Tandon, learned counsel for the accused/appellant and Sri M.A. Khan, learned Brief Holder for the State and perused the entire material available on the record. 3. In brief, the prosecution case is this that on 20.05.1990 at 6:25 a.m. the Station Officer Chandra Mohan Singh Rawat alongwith S.I. P.S. Chauhan, Head Constable Sher Singh Bohra, 2 Constable Devi Datt Pandey reached at the Check Post situated in the Lohaghat for checking. Constable Kishan Singh and Constable Omvir were also there at the Check Post on their duty. During checking an informant (Mukhvir) informed to the Station Officer that one person was going near the Gas Godown, Lohaghat and some suspected articles might be in his possession. On receiving this information, the Station Officer, alongwith other police officials moved towards the Gas Godown. As the police team reached near the Gas Godown, the informant pointed out towards the suspected person and the police party has apprehended the person on the same day at 7:15 a.m. After the person apprehended he disclosed his name as Krishan Kumar Sharma (present accused/appellant). On making search by the police party of the bag which was on his right shoulder, the police party recovered, two rolls (THAN) of almond colour cloth, one roll of gray colour cloth one roll of light blue colour cloth, one roll of light black colour cloth, one roll of cloth of quilt made of cotton, one gunny bag inside which 7½ kg. of CHARAS, one suitcase inside which one Pant, one shirt, one towel, one spectacles, one undershirt and one underwear were also recovered. The accused/appellant was asked licence for having the CHARAS, but he could not show it. The accused/appellant was arrested on the spot telling him the reason of his arrest i.e. for the recovery of the illegal CHARAS of about 7½ Kg. The recovered CHARAS was sealed on the spot and the specimen seal (NAMOONA MOHAR) was taken. The accused/appellant was further searched and from his pant a sum of Rs. 382/-, a silver ring from his right finger was also recovered. A FARD was prepared on the spot. The public people were asked for witness, but they refused to witness or to sign the FARD. With the same averments the recovery memo Ext. Ka- 1 was prepared on the spot and on the basis of the recovery memo the First Information Report was lodged in the Police Station on 20.05.1990 at 8:35 a.m. by the S.O. Chandra Mohan 3 Singh Rawat at P.S. Lohaghat and the Chik First Information Report Ext. Ka- 3 was prepared by Constable Bishan Ram. Necessary entries were also made in the G.D., a copy of the General Diary is Ext. Ka- 4. The specimen seal (NAMOONA MOHAR) is Ext. - 10. Investigation of this case was entrusted to (PW-4) S.I. Sri Diwan Singh Bisht. 4. Sample of the CHARAS for the chemical examination was not taken on the spot, but lateron the sample of the CHARAS was sent to the chemical examination to the Forensic Lab, Agra vide letter dated 04.06.1990. The Assistant Director, Forensic Lab, Agra has submitted the report dated 24.07.1990 that report is Ext. Ka- 7. 5. During the course of investigation, the Investigating Officer has recorded the statements of the witnesses and after completing the investigation he submitted the charge sheet Ext. Ka- 6 against the accused/appellant u/s 20 of the Act. 6. Learned Sessions Judge, Pithoragarh after hearing the parties on 23.10.1990 framed the charge for the offence punishable under Section 20 of the Act against the appellant/accused. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. 7. The prosecution, to prove its case, has examined P.W. 1 Constable Devi Datt Pandey-witness of the recovery of the above said CHARAS, PW-2 Hayat Singh, PW-3 Chandra Mohan Singh Rawat-Station Officer who was the leader of the team at the time of the recovery of the said CHARAS and PW-4 Sub Inspector Diwan Singh Bisht-Investigating Officer of the case. 8. After that the statement of the accused/appellant was recorded u/s 313 Cr.P.C. The oral and documentary evidence 4 was put to the accused in the form of questions who denied the allegations made against him and has stated that he has been falsely implicated in the case. In defence he filed paper no. Ext. Kha-1 as documentary evidence and in the oral evidence he produced two witnesses DW-1 Kailash Chandra Joshi and DW-2 Nirmal Joshi. 9. After appreciating all the evidence available on record and hearing learned counsel for the parties, the learned Sessions Judge vide the impugned judgment and order dated 27.02.1991 convicted the appellant/accused under Section 20 of the Act and awarded sentence to undergo rigorous imprisonment for a period of 10 years’ and also with a fine of Rs. One Lac. It was also directed that in default of payment of fine he shall further undergo rigorous imprisonment for 2 years’. Aggrieved with the impugned judgment and order the appellant has preferred the present appeal. 10. The prosecution to prove its case examined PW-3 Chandra Mohan Singh Rawat-Station Officer, who was the leader of the team when the recovery was made. He has stated that on 20.05.1990 he was posted as Station Officer at the Police Station Lohaghat and on that day he alongwith Sub Inspector Pratap Singh Chauhan, Head Constable Sher Singh Bohra, Constable Devi Datt (PW-1) has gone for checking to the Check Post from the Police Station Lohaghat at 6:25 a.m. There the Constable Kishan Singh and Constable Omvir Singh were present. These two Constables were also taken by the Station Officer alongwith them. Meanwhile, the informant informed him that one person has come from the Gas Godown and it might be possible that some suspected articles are in his possession. On receiving this information, he alongwith the police party and the informant moved towards the Gas Godown. Near the Gas Godown the informant pointed to the suspected 5 person as the accused/appellant. On this, he arrested the accused/appellant at 7:15 a.m. with the help of the police party. He has further stated that the arrested accused person was a businessman. On making search of the accused from the bag, which was on the right shoulder of the accused, in side the coloured roll of cloth the CHARAS was recovered which was weighing 7½ kg. Those recovered articles are Ext. 1 to Ext.5, cloth Ext.-6, CHARAS Ext.-7, the bag in which the CHARAS was kept is Ext.-8 and the cloth of the bag is Ext.-9. All these articles were taken by him in his possession and the personal search of the accused/appellant was also made thereafter. From his Pant a sum of Rs. 382/-, one silver ring, one briefcase inside which one towel, trouser, shirt, toothbrush etc. were recovered. All these articles were taken in his possession. These recovered articles from the possession of the accused/appellant are Ext.1 to 8. In the cloth Ext.-9 the recovered articles were kept and were sealed. A FARD was prepared on the spot. The people present on the spot have made signatures on the FARD Ext.Ka- 1. The FARD is in his handwriting. He has further stated that specimen seal (NAMOONA MOHAR) of the recovered CHARAS was prepared on the spot i.e. Ext.-10. He has further stated that at the time of making arrest no public witness was available. One person was seen going towards the ravine, but he could not come. Thereafter, the recovered items and the accused/ appellant were taken to the police station and on the basis of the recovery memo, the Chik First Information Report was prepared by Constable Bishan Ram i.e. Ext. Ka-3. The evidence of PW-3 Chandra Mohan Singh Rawat-S.O. gets corroboration from the evidence of PW-1 Devi Datt Pandey who is also the witness of aforesaid recovery. 11. PW-2 is Sri Hayat Singh, who has stated that he is the owner of the Hotel, namely, ‘Amar Jyoti’ at Lohaghat. He came before the court alongwith the register, in which the entries 6 were made in regard to the people who used to stay in his Hotel. He has further stated that the accused/appellant used to visit in his Hotel. Since last 5-6 years in second or third month the accused/appellant used to stay for 1 to 2 days in his hotel and in the last he visited his hotel on 19.05.1990 and went on 20.05.1990. When he left the hotel one bag was with him and he took the bag with him. 12. PW-4 is S.I. Diwan Singh Bisht-the Investigating Officer of the case, who has stated that on 20.05.1990 he was posted as Station Officer in the Police Station Lohaghat. Investigation of this case was entrusted to him. Entries in the G.D. was made at Rapat no. 10 at 8:35 a.m. by Constable Bishan Ram, a copy of the G.D. is Ext. Ka-4. He has further stated that during the course of investigation he recorded the statement of the witnesses and prepared the site plan of the place of occurrence i.e. Ext. Ka- 5. He also took the sample of the recovered CHARAS to send the same to Forensic Lab, Agra for its chemical examination and after completing the investigation, he filed charge sheet against the accused/appellant i.e. Ext. Ka- 6. In cross-examination in para-4, he has stated that the sample of the CHARAS from the sealed bundle was taken by the orders of the Chief Judicial Magistrate, by some another Sub Inspector, because at that time he had gone out. He has also stated that till the sample was sent for chemical examination, the recovered material (said to the CHARAS) was kept in the Police Malkhana. It is pertinent to mention the para-4 of the statement of this witness which is reproduced as under:- “Ext.Ka-4 esa fdl O;fDr dh fu’kkunsgh esa cuk;k x;k gS mldk uke ugha fy[kk gSA pjl dk uewuk lhy eqgj c.My ls lh0ts0,e0 lkgc ds vkns’k ls muds lkeus fdlh nwljs njksxk us fy;k Fkk] eSa dgha ckgj x;k FkkA tkWp esa uewuk Hksts tkus rd eky iqfyl ds eky[kkus esa jgkA ” 7 13. After the prosecution evidence was concluded the oral and documentary evidence, in question form, was put to the accused/appellant u/s 313 Cr.P.C. who denied the allegations made against him and has stated that he has been falsely implicated in the case. In reply to the question no. 16 he has stated that on 20.05.1990 at 7:25 a.m. he came to the Bus Stand, Lohaghat, because at 7:30 a.m., the bus for Haridwar was schedule to depart and so many passengers were there. After 5 to 7 minutes 3-4 police personnel reached there and they have searched his luggage. His briefcase was also searched. One bag (GATHHAR) was there. On inquiry, nobody has claimed that bag. Thereafter he was taken to the police station and was implicated in the false case. He used to come Lohaghat for the business of the clothes; he is the wholesale businessman. His Rs. 4,600/-, golden ring, silver ring, spectacles, novel, receipt book and letter pad were taken from him. On that day, he has taken Rs. 600/- from Hari Datt Leeladhar, Rs. 1,000/- from Tula Ram Joshi and sons, Rs. 1,000/- from Diwan Singh Adhikari, Rs. 200/- from Khushal Singh and sons, Rs. 600/- from Laxmi Datt Buldeo Prasad and Rs. 700/- from Pandey General Store. In defence he produced two witnesses DW-1 Kailash Chandra and DW-2 Nirmal Joshi. DW-1 Kailash Chandra Joshi has stated that he has a firm of the clothes in the name and title of Hari Datt Leeladhar Joshi at Barakot which is 30 to 35 years old. The accused/appellant is known to him since 1984-85. The accused/appellant had the wholesale business of the clothes and he used to purchase the clothes from the accused/appellant. He has further stated that the accused/ appellant came lastly at his firm on 18.05.1990 and he paid Rs. 500/- to him and for that he gave a receipt, which is Ext. Kha-1. DW-2 is Nirmal Joshi, who has stated that he has a shop at Barakot of the clothes in the name and style of Tularam Joshi and Sons. The accused/appellant is well known to him since 1984-85 who is also a cloth merchant of the wholesale. He has 8 further stated that the accused/appellant used to come there and after taking the demand, he used to supply the cloths through transport. 14. Learned counsel for the accused/appellant first of all argued that the sample of the so-called recovery material (CHARAS) was not taken by the police on the spot on 20.05.1990 at 7:15 a.m. and there is no link evidence to show that the sample (NAMOONA), lateron sent by the police for chemical examination at Forensic Lab- Agra, is the sample (NAMOONA) of the same item (CHARAS) shown to be recovered from the possession of the accused/appellant on 20.05.1990. He has submitted that there is no link evidence to prove that the same CHARAS was kept intact in the Malkhana and that CHARAS was not, at all, tampered with. I find substance in the arguments of the learned counsel for the accused/appellant as from the evidence discussed above, it reveals from the recovery memo Ext. Ka-1 and from the Chik First Information Report Ext. Ka-3 that no sample was taken by the police party at the time of the recovery of the said CHARAS and no sample was sealed separately on the spot by the police party. This fact also gets corroboration from the evidence of the PW-3 Chandra Mohan Singh Rawat, who was the leader of the arrest and also the Station Officer at Police Station-Lohaghat. PW-3 Chandra Mohan Singh Rawat has stated in his statement on para-2, that the NAMOONA MOHAR (specimen seal) was prepared on the spot which is available before the court and is marked as Ext.-10. Ext.10 is available on the record, which reveals that it is a specimen seal (NAMOONA MOHAR), which was prepared on 20.05.1990 at the time of the recovery of the said material (CHARAS). This fact further corroborated from the evidence of PW-4 Diwan Singh Bisht-I.O., who has stated in para-4 of his statement that the NAMOONA of the CHARAS from the Seal Mohar Bundle was taken by another Sub 9 Inspector of the police by the orders of the C.J.M. as on that day he had gone out. From the above discussion of the evidence, it is proved that the sample of the CHARAS sent for the chemical examination was not taken by the police party on the spot on 20.05.1990 rather it was taken later on in some different day. Though the prosecution has not adduced any evidence in the record to prove that the sample sent for the chemical examination was taken from the recovered sealed item by the orders of the C.J.M., however from the report of the Assistant Director it reveals that they had received the sample for chemical examination on 07.06.1990 vide letter dated 04.06.1990 and the report was submitted on 24.07.1990. Thus, from the evidence discussed above, there is no evidence that when the sample was taken by the police by the orders of C.J.M. to send it for the chemical examination or when the recovered item was taken from the Malkhana before the Court of C.J.M. so as to take a sample. Further it has not come in the evidence that the recovered CHARAS was kept intact inside the Malkhana during the period when the sample was taken and even otherwise it was not proved by the prosecution that the sample was taken from the same CHARAS, which was shown to be recovered on 20.05.1990 from the possession of the accused/appellant. No documentary evidence or the copy of the G.D. made in the police station was filed by the prosecution in order to prove that when this CHARAS was brought before the C.J.M. or it was returned back to the Malkhana or whether the sample was taken by the orders of the C.J.M. in the Malkhana by the police or it was taken to the Court for taking the sample. Thus, the prosecution has not proved its case beyond reasonable doubt that the sample which was sent for chemical examination was taken from the same CHARAS which was shown to be recovered from the possession of the accused/ appellant. The concerned Malkhana Moharir or any other witness was not produced by the prosecution to prove that the 10 sample was actually taken from the recovered CHARAS. Hence it creates a reasonable doubt in the prosecution story. 15. In support of his arguments, learned counsel for the accused/appellant has cited a judgment reported in 1999 (38) ACC page-181 Shiv Charan vs. state and has relied 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 on11.10.1990 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.” 16. He has further cited the judgment reported in 2005 Supreme Court Cases (Cri) 641 State of Rajasthan vs. Gurmail Singh and has relied on para-3, 4 & 5 which are reproduced as under:- “3. …… we find that the link evidence adduced by the prosecution was not al all satisfactory. In the first instance, though the seized articles are said to have been kept in the 11 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.” 17. He has further cited the judgment reported in 2005 (1) U.D.-727 of Hon’ble the Division Bench of this High Court Mr. Harman Chrust vs. State in which he relied on para-25, which is reproduced hereunder:- “25. Another point, which creates suspicion about the authenticity of the prosecution story, it 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 12 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 envelop 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.” 18. Learned counsel for the accused/appellant has also filed Clause 2.9 Standing Order no. 1/89 of which he has placed reliance on clause 2.9, 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 has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seal should be legible. This envelop 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.” 19. Thus from the above said discussion of evidence and the judgment (supra), the prosecution has not proved its case against the accused/appellant beyond reasonable doubt that the sample sent for the chemical examination was taken from the CHARAS shown to be recovered on 20.05.1990 from the possession of the accused/appellant. The case of the prosecution is also not proved by the link evidence that the CHARAS, shown to be recovered from the possession of the 13 accused/appellant on the alleged date i.e. on 20.05.1990, was the same CHARAS which was kept intact in the Malkhana upto the date the sample taken from the sealed bundle by the orders of the C.J.M. 20. Learned counsel for the accused/appellant 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, though the accused/appellant was arrested on the information of the Mukhbir. 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