1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 203 of 2001 Decided on February 23, 2011 State of H.P. …Appellant. Versus Mohan Lal ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. ¹Whether approved for reporting? For the appellant: Mr. R.K. Sharma, Senior Addl. Advocate General, with Mr.Rajinder Dogra, Addl. Advocate General. For the respondent: Mr. Rakesh Jaswal, Advocate. Justice Surinder Singh,J. (oral) The present appeal by the State has been directed against the acquittal of the respondent passed by the learned Trial Court on 29.12.2000 in Sessions Trial No.4 of 2000, for the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short the Act) allegedly for keeping in possession 330 grams of charas. 2. We have heard the learned counsel for the parties and have carefully gone through the record. 3. Precisely, the case of the prosecution, as emerges from the evidence on record, is that in the month 2 of October, 1999 HC Harish Kumar (PW7) was posted in Police Station, Karsog. On 9.10.1999 he alongwith Constables Nand Lal (PW4) and Durga Singh (PW3) had gone to Tatapani in connection with investigation of a case under Section 435 of the Indian Penal Code. Around 4.30 P.M. after alighting from the vehicle they observed that respondent on seeing the police party had tried to run- away, getting suspicious, he was overpowered near Forest Check Post. The respondent was having a bag in his hand which was emitting smell of charas. The said Head Constable requisitioned the services of Umesh Kumar (PW1) and Prem Lal (PW2) and associated them as independent witnesses while conducting the search of the respondent. The identity of the respondent was asked. Thereafter, he was given an option in writing (Ex.PA) to be searched before a Gazetted Officer or a Magistrate, but he opted to be searched by the police officer present there. Thereafter, Head Constable Harish Kumar (PW7) offered himself for being searched by the respondent and no incriminating articles were found in his possession. Thereafter, HC Harish Kumar aforesaid conducted the search of the bag of the respondent and recovered the polythene envelope which was containing 330 grams of charas. He separated two samples of 20 grams each from the recovered stuff which were packed and sealed 3 separately with seal 'T'. The seal after its use was handed over to Umesh Kumar (PW1). The case property was taken into possession vide Memo (Ex.PB). 4. Rukka (Ex.PC) was prepared and sent to Police Station, Karsog through Durga Singh alongwith the case property. Thereafter, PW8 Kundan Lal took over the investigation from him and recorded the statements of the witnesses. 5. PW3 Constable Durga Singh deposited the case property with MHC Karam Singh (PW6) in the Police Station. Since the SHO was not present in the Police Station, as such, he was officiating as SHO and resealed the case property, then deposited it in the Malkhana. 6. On 12.10.1999, one of the samples was sent through PW3 Durga Singh for analysis through Road Certificate, to CTL Kandaghat, which was delivered by him on the same day and produced receipt before MHC. The sample was analyzed in the Laboratory. As per report, it contained 38.19% resin and it also contained Cystolithic hair. The Chemical Examiner opined that the said exhibit contained contents of charas. 7. After completing the investigation, challan against the respondent was filed for the aforesaid offence and he was put on trial and at the end acquitted by the learned trial court mainly on the ground of non compliance 4 of Section 50 of the Act and also that link evidence was missing and the analyst report could not be linked by the prosecution with the recovery of the alleged contraband. 8. At the very outset, we would like to say that in the facts and circumstances Section 50 of the Act is not attracted as the recovery of the alleged contraband is alleged to be from the bag held in the hand by the respondent, while placing our reliance upon a judgment rendered by the Supreme Court in Ajmer Singh versus State of Haryana, (2010) 3 SCC 746. 9. In so far as other evidence on record is concerned, on its scrutiny, we find various discrepancies, irregularities, inconsistencies, material contradictions and lapses committed during the investigation of the case which caused a dent on the pribity of the prosecution case. There is nothing on record to show that at the time of the alleged recovery, NCB forms in triplicate were filled-in on the spot by the Investigating Officer aforesaid. Further, the seal used at the spot did not find the light of the day during the trial. Also we notice that the independent witnesses have not at all supported the case of the prosecution and the link evidence is not complete. 10. PW3 Durga Singh was not entrusted with any of the documents except Rukka and case property for 5 depositing the same in the Malkhana. PW6 MHC Karam Singh stated that SHO was not present in the Police Station thus he was acting as SHO. He resealed the case property with seal impression 'H' and then deposited in the Malkhana of which he was Incharge. In our opinion, the very purpose of resealing the case property stands frustrated. He also did not say anything about the fact as to where SHO has to go on that day. Whereas the perusal of Ex.PJ NCB form reveals that it was signed on 9.10.1999 by Harjit Singh, SHO of the same Police Station (Karsog) which means that on the said date, SHO was present in the Police Station, thus PW.6 aforesaid stands contradicted that SHO was not present, he was officiating SHO. 11. Further, we also find that the said NCB form was filled-in on 9.10.1999. The date of drawn and despatch of the sample has been mentioned the same day against column No.5. MHC aforesaid stated that one of the sample parcels was sent for analysis on 12.10.1999. Where the case property remained for 3 days is not known. The extract of Malkhana register was not placed and proved on record. Similarly the copy of the Road Certificate was withheld, by which we could have gathered the date & its despatch and also what were the documents sent with samples to the Laboratory and whether or not the sample accompanied the samples of seals. The NCB form also 6 does not contain the facsimiles of the seal used. Therefore, lithographic impression stating that the seals on the sample tallied with the seal sent separately appended by the Chemical Examiner is wrong and was put in a mechanical manner. 12. As discussed above, we do not find that the report of the analyst could be linked with the alleged recovery. Therefore, the case of the prosecution stands not proved. Thus, acquittal of the respondent for the reasons stated above cannot be interfered with. The State appeal sans merit, hence dismissed. 13. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. Send down the records. (R.B. Misra) Judge February 23, 2011 (Surinder Singh) (Purohit) Judge