IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.262 of 2008. Decided on: April 29, 2011. _______________________________________________________ State of H.P. ……..Appellant. Versus Jeet Ram. ……..Respondent. Coram Hon’ble Mr. Justice R.B.Misra, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. R.K.Sharma, Sr. Additional Advocate General. For the respondent : Mr. Sunil Awasthy, Advocate. ____________________________________________________ SURINDER SINGH, J. (oral) : Respondent was acquitted by the learned trial Court for the offences punishable under Sections 20 and 21 of the Narcotic Drugs and Psychotropic Substances Act, in short ‘the Act’, allegedly for keeping in possession 250 grams of Charas and 5 grams of Heroin (Brown Sugar), hence the present appeal by the State. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. Heard and gone through the evidence on record. 3. In short the prosecution case can be summed thus. During the intervening night of 21st /22nd November, 2006, PW3 ASI Lal Chand alongwith PW8 SHO Sanjay Sharma, PW1 HC Naresh Kumar, PW2 Constables Rajiv Kumar and Suresh Kumar were present near the forest at Ram Bag, Manali, in connection with ‘Naqa-bandi’. (i) At about 1.10 a.m., police noticed respondent coming from Manali side. Since it was dark, police flashed the search light. On this, respondent threw a polythene envelope on the spot and tried to escape, which raised suspicion, as such, chased and apprehended him. His identity was asked. Thereafter, the police picked up the polythene envelope from the road, which was alleged to have thrown by him. It contained 250 grams of Charas and six small packets (Pudias). It being dark, the sampling process could not be completed on the spot, hence the accused alongwith - 3 - recovered material was brought to Police Station. (ii) The powdered like substance which was found in the small packets was tested with the aid of detection kit and the police prima-facie found it to be that of ‘Heroin’. Out of the recovered stuff of ‘Heroin’, the police separated two samples of one gram each which were sealed with seal impression “T”. Two sample parcels of 25 grams each of the Charas were also separated and sealed with the aforesaid seal. Seal impression of the seal used was also taken on a piece of cloth Ex.PB. Remaining bulk of Heroin as well as Charas was separately sealed in one packet with the same seal. (iii) NCB forms in triplicate were filled-in in the Police Station and seal after its use was handed over to PW1 HC Naresh Kumar. (iv) Case property was taken into possession vide memo Ext.PA. Its copy was supplied free of cost to the respondent. Thereafter, he was arrested and grounds of - 4 - arrest vide memo Ext.PC were informed to him. On his personal search, a purse containing ` 4,740/- were recovered alongwith other items mentioned in memo Ext.PD. (v) The respondent alongwith the case property was produced before PW8 Sanjay Sharma, SHO of the Police Station. The case property was re-sealed with seal impression “N”. The facsimile of the seal was taken on a piece of cloth Ex.PE and also on the NCB forms and the relevant columns were also filled-in by him. (vi) A Ruqa Ext. PJ was sent through PW2 Constable Rajiv Kumar for registration of the case, which was received by MHC in the Police Station, on its basis FIR Ext.PP was formally registered. (vii) PW8 SHO Sanjay Sharma handed over the case property to PW5 MHC Hari Singh, to which he deposited in the Malkhana and the entry in the relevant register was also made by him. - 5 - (viii) On 17.3.2007, PW5 MHC Hari Singh produced one sealed bulk parcel and one sealed sample parcel before the Judicial Magistrate Ist Class, Manali. In the presence of Judicial Magistrate Ist Class, Manali, these parcels were opened and the contents of Charas as well as of Heroin were weighed and mixed up separately. Thereafter, one sample of Charas weighing 25 grams and one sample of one gram of ‘Heroin’ were separated from each substance. Both the samples were sealed by making separate parcels and the remaining Charas and Heroin were also sealed separately with the seal of Judicial Magistrate Ist Class, Manali and handed over to PW5 MHC Hari Singh. A certificate Ext.PT to this effect was issued by the Judicial Magistrate aforesaid. (ix) On 28.11.2006, one of the sample parcels taken in Police Station was sent by PW1 MHC Naresh Kumar to C.F.S.L. Chandigarh through PW6 C. Mahinder Kumar - 6 - vide Road Certificate, which was deposited by him on 29th November, 2006 for analysis. (x) A special report was prepared by PW3 ASI Lal Chand and was sent to the office of Dy. Superintendent of Police, Manali within the statutory period. (xi) On analysis, one of the exhibits was opined to be the sample of Charas without finding out the percentage of resin and another contained 6.8% of diacetylmorphine (Heroin), which comes to less than one gram in the recovered stuff and is less than the small quantity. 4. On completing the investigation, the case was presented in the Court for the trial of the respondent for the aforesaid offences. The respondent was charge-sheeted, tried and acquitted for both the offences, on the grounds that there were material contradictions appearing in the statements of the witnesses and also that there is contradictory evidence with respect to preparation and sealing of the parcel of the recovered stuff. Further, the presence of PW8 SHO Sanjay Sharma, on the spot at - 7 - the time of sampling process was held to be doubtful, shaking the credibility of the prosecution case. 5. We have re-examined and re-appraised the evidence on record. We concur with the findings of acquittal arrived at by the learned trial Court as having been borne out from the evidence on record. 6. PW1 HC Naresh Kumar stated that the ‘Naqa’ was laid at a distance of about half kilometer from Ram Bag where they had reached around 12.15 a.m. and the police entered the forest from the side of SDM office, where they stayed only for 3-4 minutes, whereas, PW2 C. Rajiv Kumar and PW3 ASI Lal Chand have given the different versions. 7. According to PW2 C. Rajiv Kumar, the distance of ‘Naqa’ was at a place, which was more than one kilometer from Ram Bag and not half kilometer from Ram Bag, as stated by PW1 and further the police party had reached the spot at about 1.00 a.m. Thereafter police entered the forest from the backside of the restaurant side after about 10 minutes. He doesn’t say that the police entered from the backside of the SDM office as against it PW3 ASI Lal Chand deviated from the version given by the - 8 - aforesaid witnesses to the extent that the place where the ‘Naqa’ was put at the place known ‘Ram Bag’ was at a distance of 3-4 kilometer and the police entered the forest from the gate located near the SDM office and reached the spot at 12.15 a.m. 8. Further the presence of SHO has been shown by PW2 C.Rajiv Kumar on the spot at the time of arrest of the accused, which has been supported by PW3 ASI Lal Chand, but PW8 SHO Sanjay Sharma flatly denied about his presence on the spot alongwith PW3 ASI Lal Chand, which also shakes the credibility of the prosecution case. 9. On the perusal of the statement of PW2 C. Rajiv Kumar, we find that at the time of sampling, two samples taken from the ‘Heroin’ were sealed separately with seal impression “T”, similarly two samples of 25 grams each of ‘Charas’ were taken and sealed separately with same seal and remaining bulk of both these items were sealed in one parcel with the same seal. In this way, the police was having only five sealed parcels with them i.e. two samples of each of the items recovered and one that of the remaining parcel of Charas and ‘Heroin’. As against this, PW3 ASI - 9 - Lal Chand took absolutely a different stand in his statement on this vital aspect of the matter. He deposed that one sample parcel of 25 grams of ‘Charas’ and one gram of ‘Heroin’ were prepared, which were sealed with the aforesaid seal and the second parcel was also prepared of 25 grams of ‘Charas’ and one gram of ‘Heroin’ and these two parcels were separately sealed with the seal impression “T” and the remaining bulk of ‘Charas’ and ‘Heroin’ were sealed in one parcel, meaning thereby that there were only three parcels with the police, which were produced before PW8 SHO Sanjay Sharma for its resealing. This statement of PW3 ASI Lal Chand the main Investigator of the case is contradictory to the statement of other official witnesses and shakes the very foundation of the prosecution case, making it a doubtful version. 10. Apart from the above material contradictions, also we find that the samples taken by the Judicial Magistrate Ist Class, Manali were not examined and we fail to understand why these were taken. There is also no entry of withdrawal and re- depositing of the samples from the Malkhana on 28th - 10 - November, 2006. Even the report of the analysis with respect to the Charas is not in conformity with the judgment of the Coordinate Bench passed in Sunil Vs. State of H.P. and other connected matters [Latest HLJ 2010 (HP) 207). PW10 Dr. R.S. Verma was examined in this case. He did not ascertain the resin contents. The report is Ext.PL. He was also DW1 in Sunil Kumar’s case. In that case, the analysis report was also the same, against the aforesaid background, the coordinate Bench of this Court held that mere presence of tetrahydrocannabinol or cystolithic hair, which is the fabric of the cannabis plant do not mean that the analysed stuff is Charas and it cannot be said that as per Section 2(iii) (a) it is the product of Cannabis. Insofar as the recovery of Heroin is concerned, we find that in view of the aforesaid material contradictions, the prosecution has failed to prove its recovery from the respondent beyond reasonable doubt. 11. For the above stated reasons, we do not find any ground to upset the judgment of acquittal passed by the learned trial Court, as such, the appeal sans merit and is accordingly dismissed. - 11 - 12. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. 13. Send down the records. ( R.B.Misra ) Judge. (Surinder Singh), Judge. April 29, 2011. (Pds)