IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 128 of 2006 Date of decision: 21.11.2008 State of H.P. ... Appellant Versus Harpal Singh … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. R.M. Bisht, Deputy Advocate General. For the respondent: Mr. M.A. Khan, Advocate. Per V.K. Ahuja , J.: This is an appeal filed by the State of H.P. against the judgment of the Court of learned Presiding Officer, Fast Track Court, Mandi, dated 22.11.2005, vide which the respondent was acquitted of the charge framed against him under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter to be referred as ‘the N.D.P.S. Act’. Briefly stated, the facts of the case are that on 20.1.2002 PW-7 Narender Kumar, Probationary Inspector, Police Station Aut, alongwith PW-1 Ram Lal and some other police officials were present at Sandhalai on patrolling duty. At about 5.30 P.M., one person was seen by them coming on foot towards Bazaar, who tried to run away on 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 seeing the police party and was apprehended. Notice was given by PW-7 Narender Kumar to the respondent, if he wanted to give his search in the presence of Magistrate or gazetted officer and the respondent gave his consent to be searched by the Police Inspector. Thereafter, PW-7 Narender Kumar gave his personal search to the accused. On search of the accused, 400 grams of Charas was recovered from the bag, which was in the pocket of the Baniyan of the respondent beneath his shirt. Two sample of 25 grams each were taken from the recovered Charas separately and were sealed separately. After sealing them, all the necessary formalities were completed. On completion of the investigation, the challan was filed before the learned Sessions Judge and the case was tried by the learned trial Court, leading to the acquittal of the respondent. We have heard the learned counsel for the parties and have gone through the record of the case. During the course of arguments, we have been taken through the evidence and it has been brought to our notice that necessary link evidence was missing in the prosecution case since no witness has been examined to prove that the sample alongwith specimen seal impressions were sent to the office of Chemical Examiner and were safely deposited there. Some other infirmities have also been pointed out during the course of arguments, which makes a dent in the prosecution story leading to the conclusion that it cannot be said that the case of the prosecution was proved beyond any reasonable doubt. On a perusal of the evidence led by the prosecution, it is clear that there is statement of PW-7 Inspector Narender Kumar, Incharge of the raiding party, who had apprehended the respondent, 3 made the recoveries and took into possession the Charas recovered at that time. He has also proved in evidence the notice Ext. PW1/A, vide which an offer was made to the respondent if he wanted to give his search to a gazetted officer or Magistrate and he gave his option to be searched by the police party. PW-7 Inspector Narender Kumar further proved the recovery memo, prepared ruka, prepared the site plan and completed the investigation in the case. He also prepared special report Ext. PW7/E, which was sent to Superintendent of Police from the Police Station. His statement has been duly corroborated by the statement of PW-1 H.C. Ram Lal, who was accompanying PW-7 Inspector Narender Kumar at that time and he is a witness to the notice issued to the respondent Ext. PW1/A as well as recovery memo Ext.PW1/E and other documents. He has materially corroborated the statement of Investigating Officer PW-7 Inspector Narender Kumar and there are no material contradictions in these statements. A plea was also taken that no independent witnesses were associated at that time and the learned trial Court had dealt with this in detail and had come to a right conclusion that mere fact that no independent witnesses were joined is not fatal for the case of the prosecution. Coming to the main plea in regard to the necessary link evidence being missing, it is in the statement of PW-7 Inspector Narender Kumar that he had produced the case property before the S.H.O. Police Station Aut on the same date, who deposited it with the MHC. The statement of PW-5 H.C. Kushal Kumar shows that the S.H.O. had deposited a sealed parcel containing 350 grams of Charas sealed with seal impression ‘T’ and two parcels each containing 25 grams of Charas sealed with seal impression ‘T’ alongwith specimen of seal 4 impression. He did not state that the parcels were also sealed with seal ‘PC’ used by the S.H.O. before he kept the case property in the Malkhana. PW- 6 Prakash Chand, the then Inspector/ S.H.O. Police Station Aut, has stated that at about 9.30 P.M., a packet bearing seal impression ‘T’ alleged to be containing 350 grams of Charas alongwith two separate parcels of the sample sealed with same seal impression were produced before him. He prepared seizure memo Ext. PW1/H and handed over the case property to MHC Kushal Chand. He never stated that the case property was resealed by him by using seal of his own. This is contrary to the version of PW-1 H.C. Ram Lal, who has stated that the case property was resealed with seal ‘PC’ by S.H.O. P.C. Patyal. It is surprising that the person who allegedly resealed the property with his own seal, namely, PW-6 Prakash Chand, the then S.H.O., had not stated about the resealing, but this witness has stated about the resealing. This evidence does not find corroboration from the statement of the then MHC PW-5 Kushal Kumar, who never stated that the property was produced before the S.H.O. at that time when he deposited the same in the Malkhana or it was also having seal impression ‘PC’ as affixed by the S.H.O. This contradictory statement makes the prosecution story doubtful as to whether any resealing was done or the case property was deposited in a safe manner with the MHC or not. Apart from the above, PW-5 H.C. Kushal Kumar has stated that sealed parcels were sent to the office of Chemical Examiner through Narender Kumar, C. No. 450, on 23.1.2002 vide R/C No. 5/2002. He admitted that the abstract of Malkhana register and R.C. have not been shown to him today in the Court. These two documents if had been proved, would have given credence to the prosecution story that 5 the case property was duly received, entered in the Malkhana register and was sent to the Chemical Examiner as stated by this witness. The prosecution did not examine the said Narender Kumar, constable, for the reasons best known to them, who had taken the sample to the office of Chemical Examiner. In the alternative his duly attested affidavit was also not proved on record to show that he had taken the case property safely and deposited it there with the Chemical Examiner. The statement of PW-5 H.C. Kushal Kumar also does not prove that the seal impressions were also separately sent to the office of Chemical Examiner through Narender Kumar, constable, who has not appeared in the witness box to state that he took specimen seal impression separately to the office of Chemical Examiner and deposited it safely. The learned trial Court had referred to the report of the Chemical Examiner, which shows that the samples were duly received but it had rightly concluded that the report of the Chemical Examiner shows that the samples were found intact, is not sufficient to prove that it reached the office of Chemical Examiner safely since no evidence has been led to prove that the specimens of the seal were also separately sent to the office of Chemical Examiner since there is no evidence to this effect. In the absence of any evidence of the prosecution to prove that the seal impression was also sent separately to the office of Chemical Examiner in the facts and circumstances of the case, in the absence of R.C. or the entries from Malkhana register, the learned trial Court did not rely upon the certificate appended by the Chemical Examiner to hold that the samples were duly received in his office, which findings are not incorrect. From the above discussion, it is clear that the necessary link evidence was missing and there were contradictions in the statements of 6 the material witnesses in regard to the sending of the sample and as such, the final findings recorded by the learned trial Court holding that the prosecution has failed to prove their case beyond any reasonable doubt do not call for an interference by this Court. In view of the above discussion, we hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent, if any, shall stand discharged. ( Deepak Gupta ), Judge ( V.K. Ahuja ), November 21, 2008 Judge (BSS) 7