HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.247 of 2000 Decided on: November 16, 2010. State of H.P. …Appellant. VERSUS Rajesh Kumar ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Additional Advocate General For the respondent: Ms. Archana Dutt, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 21.1.2000, passed by learned Special Judge, Solan, H.P. in Case No. 20-NL/7 of 99, thereby acquitting the respondent/accused for the offence under Section 18 of N.D.P.S. Act. 2. The prosecution case is that on receipt of secret information, the Khokha of accused was searched and 15 small polythene packets were recovered from his Khokha in which Whether the reporters of the local papers maybe allowed to see the judgment? …2… 105 grams of opium was found to have been kept. The samples were taken out from the recovered opium and then the samples and the remaining opium were sealed and were sent to chemical examination. After investigation, respondent was charged for the offence under Section 18 of the Narcotic Drugs & Psychotropic Substances Act. 3. In order to prove its case, the prosecution has examined as many as eleven witnesses, whereas, the respondent/accused, through his statement under Section 313 Cr.P.C., has denied the charges and prosecution case. 4. The two independent witnesses, who were allegedly associated, were Amarjit Singh and Subhash Chand. Amarjit Singh had stated that he runs a general store at Nalagarh bazaar and that Rajesh Kumar does the hair cutting work adjacent to his shop. His further version was that the wife of the accused came to him and requested him to go to the police station. Subhash was also sitting in his shop. So both of them went to police station and no search was taken in their presence. However both of them have not supported the case of the prosecution at all and have been declared hostile. …3… 5. On analysis of the prosecution witnesses and materials on record nothing is emanating that the case property was re-sealed as in view of the statement of Additional SHO, Nutan Parshad, no other seal except seal ‘G’ was affixed on the case property. As per the testimony of Nutan Parshad, after seal, the same was handed over to Amarjit Singh, whereas Amarjit Singh has not supported this and has denied that the seal was handed over to him by the police after use. 6. The prosecution was expected to prove that the case property remained intact from the time of its seizure till its analysis by the Chemical Examiner and to ensure the safe custody of the case property. However, after taking sample, till sending to the Chemical Examiner and after obtaining the report, case property was not dealt with as per the procedure required under law. Additional SHO Nutan Parshad though has mentioned that he himself was the SHO on that day so there was no need of re-sealing the case property. But this fact was not proved on record, as no document in this regard has been produced that Additional SHO Nutan Parshad was …4… exercising the powers of SHO on that particular day. 7. The entire prosecution case is casual and linked evidence is also missing. Nothing has been proved that same sample was sent and after the report of chemical examination, the seal was found intact and the sample was same which was sent for the chemical examination. 8. On analysis of the prosecution witnesses and materials on record, learned Special Judge has rightly arrived at the conclusion that the prosecution has not been able to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope for interference in the impugned judgment and the criminal appeal, being devoid of any merit, is accordingly dismissed. 9. Bail bonds, furnished by the respondent, are hereby discharged. (R.B.Misra), J. November 16, 2010 (Sanjay Karol),J. (sl)