IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 191 of 2001 Decided on : 28.3.2011 State of H.P. … Appellant. Versus Sanjeev Kumar … Respondent. Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Rajidner Dogra, Addl. Advocate General. For the Respondent : Mr. Dushyant Dadwal, Advocate. V.K. Sharma, Judge The State is in appeal against the acquittal of the respondent (accused) for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘the Act’) by the learned Additional Sessions Judge, Mandi, H.P., vide judgment dated 28.11.2000. 2. In brief, the case of the prosecution was that on 12.4.1999, at about 4.30 PM, when PW-8 Head constable Jagat Singh, Incharge Police Post, Bali Chowki along with PW-3 LHC Hem Raj and PW-1 Parkash Chand was present outside the Police Post, the accused, who was wearing black colour jacket was seen coming from Banjar side towards Kullu. On 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 being stopped by the police, he became perplexed and tried to run away. It aroused suspicion and he was apprehended. On interrogation, he disclosed his name, parentage and address. On suspicion that the accused was in possession of some contraband, witnesses namely Jiwan Singh (PW-2) and Chittar Singh (not examined), who were going towards Bazar side were joined as witnesses by the police. In their presence PW-8 H.C. Jagat Singh gave his personal search to the accused. Thereafter he served memo Ex.PW-8/A upon the accused stating whether he intended to be searched before some Gazetted Officer or Magistrate or by him. The accused consented in writing in the presence of witnesses for his search by H.C. Jagat Singh. On search, one plastic envelope of green colour containing charas was recovered from his jacket. LHC Hem Raj was deputed to bring scales and weights from the market. On weighing, charas was found to be 1 kg. Two samples each of 20 grams were separated and put in separate empty boxes of Dhoop. Remaining charas was also separately put in a cloth parcel. The samples and the bulk were sealed separately with seal bearing impression ‘H’. Specimen seal impression was also taken separately and seal after use was handed over to witness Jiwan Singh. The samples and the bulk were taken into possession by the police in the presence of witnesses vide recovery memo Ex.PW-8/A. A rukka was sent to the Police Station for registration of the case through LHC Hem Raj, on the basis of which FIR No. 42/99 was registered. Investigation of the case 3 was carried out by H.C. Jagat Singh, Incharge, P.P. Bali Chowki, who prepared site plan and recorded statements of witnesses. Case property including samples and case file were handed over to Inspector/SHO Prem Singh, who re-sealed the samples and the bulk with seal impression ‘T’ and deposited the same with Naresh Kumar M.H.C., Police Station Aut. Special report was sent to Addl. Superintendent of Polcie. After completion of codal formalities on the spot, the accused was arrested. A sample of the recovered contraband was sent for examination to Chemical Test Laboratory (CTL), Kandhaghat and report Ex.PX was obtained, which revealed that the same contained contents of charas. 3. On completion of investigation the accused was sent up to face trial. On being charged, he did not plead guilty and claimed to be tried. The prosecution evidence followed. In all, it examined 11 witnesses. 4. On close of the prosecution evidence, the convict was examined under Section 313 Cr.P.C, wherein, he pleaded innocence and false implication. However, he did not lead any evidence in defence. 5. After hearing the parties, the learned trial Judge proceeded to acquit the accused. 6. We have heard the learned Addl. Advocate General for the appellant-State, the learned counsel for the accused and gone through the records. 4 7. The accused has been acquitted by the learned trial court mainly on three fold grounds. Firstly that since it was a case of prior information it was incumbent upon PW-8 HC Jagat Singh to have taken down such information in writing and send a copy thereof to his immediate superior within 72 hours. Since it was not done there was violation of the mandatory provisions of Section 42(1) and (2) of the Act, which alone entitles the accused for acquittal. Secondly though it has been held that provisions of Section 57 of the Act are directory, yet total non compliance thereof as in the present case has also materially prejudiced the case of the accused. Lastly since out of the two independent witnesses, one namely Chittar Singh was not examined and the othe,r PW-2 Jiwan Singh did not support the prosecution version, uncorroborated testimonies of the official witnesses PW-1 Police Cook-cum-Water Carrier Parkash Chand, PW-3 LHC Hem Raj and PW-8 HC Jagat Singh, which also suffer from inherent contradictions and discrepancies cannot be made the basis for returning a finding of guilt against the accused. 8. Insofar as the first ground of acquittal is concerned, we are of the considered view that taking into consideration the settled legal position on the subject the provisions of Section 42 of the Act were not applicable in the facts and circumstances of the present case, as admittedly the search and were made in a public place. Reliance placed on the law laid down by the Hon’ble Supreme Court in M 5 Prabhulal vs. Assistant Director, Directorate of Revenue Intelligence, 2003 Supreme Court Cases (Cri.) 2024 and G. Srinivas Goud vs. State of A.P., AIR 2005 Supreme Court 3647. 9. Section 57 of the Act is directory in nature. Violation of the provisions of Section 57 would not ipso facto vitiate the trial. However, the Investigating Officer cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused and seizure of the articles. To this effect is legal position enunciated by the Hon’ble Supreme Court in Gurbax Singh vs. State of Haryana, AIR 2001 Supreme Court 1002. Admittedly, in the present case PW-8 HC Jagat Singh, who had arrested the accused and conducted his personal search leading to recovery of the contraband in question had made a full report of all the particulars of such arrest and seizure to his immediate superior in the shape of rukka Ex.PW-3/A, on the basis of which Daily Diary Report Ex.PW-3/B and FIR Ex.PW-10/B were entered and registered at Police Station Aut, on the basis of which special report Ex.PW-6/A was also sent. It being so, it cannot be said that any prejudice was caused to the accused in this regard. 10. However, even despite that the learned counsel for the accused has supported the impugned judgment of acquittal on two fold grounds. Firstly that there are material discrepancies and contradictions in the testimonies of the 6 official eye witnesses examined by the prosecution, namely, PW-1 Parkash Chand, PW-3 LHC Hem Raj and PW-8 HC Jagat Singh, which cast a serious doubt on their veracity and cannot be lightly overlooked. To illustrate, whereas PW-3 LHC Hem Raj has stated during cross examination that “on that day, we were standing out side the police post for crime detection and raid etc. We were having prior information and suspicion about the contraband on that day, therefore, we were standing outside the police post”, PW-8 HC Jagat Singh, who is the Investigating Officer has an altogether different version to state that “we were standing out side the police post without any work” and that “I had no prior information in the present case.” 11. Admittedly, at the time of the alleged occurrence, PW-1 Parkash Chand was working as Cook-cum-Water Carrier at Police Post Bali Chowki. According to him, at the relevant time he was standing outside his quarter and was called by the Incharge, Police Post (PW-8 Jagat Singh). However, according to PW-3 HC Hem Raj, he was not called from his quarter by the Incharge Police Post. Similarly, PW-8 HC Jagat Singh, has stated that Parkash Chand was not in his quarter at that time and he was not called from the quarter by him. Admittedly, PW-1 Parkash Chand had been a prosecution witness in 1-2 police cases earlier. Thus, the very presence of PW-1 Parkash Chand on the spot scene at the time of the alleged occurrence cannot be said to be beyond a shadow of doubt. 7 12. PW-1 Parkash Chand has stated in chief examination that PW-8 HC Jagat Singh had conducted the search of the accused and on opening the zip of his jacket a plastic envelope the colour of which he did not remember was recovered from inside the jacket. However, in cross examination, he has stated that “the colour of the bag was red. I have not seen today the said bag in the court.” PW-3 LHC Hem Raj, has stated that “on opening the zip of the jacket, a plastic packet green in colour was recovered, which was got photographed.” To the contrary, PW-8 HC Jagat Singh has stated that “then I conducted the personal search of the accused in the presence of the above stated persons and on opening the zip of his jacket, a packet with plastic cover was found inside the jacket.” In cross examination, he has stated in the end that “I have not recovered any bag of red colour from the accused.” 13. In view of the above contradictions and discrepancies , much reliance cannot be placed on the testimonies of the official witness and more so when the only independent witness examined by the prosecution, namely PW-2 Jiwan Singh, has not supported the prosecution version and was declared hostile. 14. Secondly, the link evidence in this case also does not convincingly connect the contraband allegedly recovered from the accused with FSL report Ex.PX. Though, PW-8 HC Jagat Singh has stated that he had prepared specimen of seal 8 ‘H’ used by him during the proceedings on a piece of cloth, which is Ex.PW-8/D, PW-10 Inspector Prem Singh, who resealed the case property with seal ‘T’ has not stated anything about preparation of seal impression of the seal used by him for resealing the case property. Furthermore, PW-4 MHC Naresh Kumar has not stated that seal impressions of seals ‘H’ and ‘T’ were either deposited with him or he had sent the same along with the sample to C.T.L Kandhaghat, through PW- 7 LHC Mohan Lal. Similarly, PW-7 LHC Mohan Lal has also not stated whether specimens of seals ‘H’ and ‘T’, were also handed over to him by PW-4 MHC Naresh Kumar, for being taken to C.T.L. Kandaghat along with the sample. Thus, there is no credible link evidence to connect the sample analyzed vide CTL report Ex.PX with the bulk of contraband allegedly recovered from the accused and to establish that same was in fact charas. 15. Admittedly, neither any effort was made by PW-8 HC Jagat Singh to associate independent witnesses from the locality, despite the fact that such witnesses could be easily available at Bali Chowki, where the alleged occurrence has taken place, as there are many residential houses, shops and Govt. offices in the locality, as it is sub tehsil headquarters. Instead two persons namely PW-2 Jiwan Singh and Chittar Singh (not examined) who were mere chance witnesses were joined and even the one out of them who was examined has not supported the prosecution version. 9 16. Admittedly, this was a case of personal search. A perusal of memos Ext.PW-8/A and Ex.PW-8/B stated to have been served upon the accused in compliance of the provisions of Section 50 of the Act would go to show that signatures of the accused on the same are so placed that it can be reasonably inferred that such signatures were obtained on a blank paper and the contents thereof were scribed later on as per convenience of the Investigating Officer. 17. In view of the above, we do not see any merit in the present appeal, though on somewhat different premises from that of the learned trial court, which is accordingly dismissed. (R.B.Misra) Judge. (V.K. Sharma) Judge. March 28, 2011. (lsp)