IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.80 of 2002. Decided on: July 8, 2011. ____________________________________________________________ State of H.P. ……..Appellant. Versus Yogesh Parkash and another. …..Respondents. Coram Hon’ble Mr. Justice R.B. Misra, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. R.K.Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Addl. Advocate General. For the respondents : Mr. Raj Kumar Negi, Advocate, vice Mr. Virender Thakur, Advocate. _________________________________________________________ SURINDER SINGH,J (oral) : The acquittal of the respondents for the offences punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985, in short ‘the Act’, for allegedly keeping in their possession 1.300 kilo grams of Charas, has been challenged by the State in the present appeal. 2. Brief facts of the case, which give rise to the present appeal, can be stated thus. On 24th Whether reporters of the Local papers are allowed to see the judgment? - 2 - November, 2000, PW7 Inspector Jagan Nath received a secret information that two persons alongwith contraband were entering Solan from the side of village Oachghat. Immediately, he informed the Superintendent of Police Headquarters on his Mobile phone and also prepared a written document Ext.PW7/A alongwith reasons of belief and sent the same to the Superintendent of Police concerned through PW12 Constable Chhabil Dass. (ii) S.I. Jagan Nath aforesaid took his motor- bike and reached Kotla Nalla, associated PW1 Satinder Kumar and PW2 Viky Kumar as independent witnesses. (iii) A Naka was laid by the police party opposite to the Tehsil office. Around 9.30 p.m., a motorcycle bearing registration No.HPA-639 came from Oachghat side, which was being driven by respondent Yogesh Parkash and another respondent Sita Ram was a pillion rider. After ascertaining their identity, they were informed by PW7 SI Jagan Nath that he had a secret information that they were having some - 3 - contraband article with them and gave option in writing Ext.PW1/A that they have right to be searched before the Magistrate or a Gazetted Officer, but the respondents consented to be searched by the said Police Officer. (iv) PW7 aforesaid rendered himself to be searched by the respondents, but no incriminating article was found in his possession. To this effect, a memo Ext.PW1/B was prepared. Thereafter, he conducted the search of the respondents. The pillion rider Sita Ram was having a bag in his possession. On its checking, it was found to have contained a polythene bag having 1.300 kilo grams of Charas. The weight of the Charas was taken with the Scale and measures obtained from the shop of PW3 Kamal Kumar. (v) From the recovered stuff, said Police Officer separated two samples of 10 grams each and sealed in two separate empty match boxes with seal impression “M”. The remaining Charas was also sealed in the same parcel with the aforesaid seal. The specimen - 4 - of the seal was taken separately on a piece of cloth Ext.PW7/B and seal after its use was handed over to PW2 Viky Kumar. To this effect, he obtained the receipt Ext.PW1/D from him. (vi) The case property was taken into possession vide memo Ext.PW1/C, which was duly signed by the respondents and the independent witnesses aforesaid. The copy of the seizure memo was handed over to the respondents. (vii) The documents of the motorcycle aforesaid were also taken into possession vide memo Ext.PW1/E. (viii) Ruqa Ext.PW5/A was sent to the SHO, Police Station, Solan through Constable Om Parkash for the registration of the case. He also called PW8 SI Ramesh Chauhan to the spot and handed over the recovered quantity alongwith sample and all the documents prepared by him on the spot alongwith the respondents. To this effect, an inventory Ext.PW7/C was prepared. - 5 - (ix) Thereafter, PW8 SI Ramesh Chauhan inspected the case, visited the spot and prepared site plan Ext.PW8/A. He also recorded the statements of the independent witnesses aforesaid and arrested the respondents. The grounds of arrest Ext.PW8/D were informed to the respondents. (x) Special report Ext.PW8/E was prepared and sent to PW10 Rakesh Agagwal, Superintendent of Police, Solan. (xi) Case property was handed over to PW11 SI Achhar Pal, SHO, Police Station. He resealed the case property with his own seal impression “A” and issued a certificate Ext.PW8/F to this effect. (xii) Further the case property was deposited in Police Malkhana with PW4 MHC Mast Ram. (xiii) On 25.11.2000, one sample parcel was sent through PW6 Constable Parshottam Dass to deposit it in the CTL Kandaghat for its analysis through RC No.123/2000, which was deposited by him on the same day. As per the - 6 - report Ext.PW7/D it was tested positive for Charas. 3. After completing the investigation, challan was presented in the Court for the trial of the respondents. At the end of trial, respondents were acquitted by the learned trial Court, on the grounds that the independent witnesses did not support the case of the prosecution and the statements of the official witnesses were contradictory. 4. Shri R.K.Sharma, Senior Additional Advocate General, duly assisted by Shri Rajinder Dogra, learned Additional Advocate General vehemently argued that the findings of acquittal recorded by the learned trail Court are not borne out from the record and the impugned judgment of acquittal passed is perverse. 5. We have carefully gone through the evidence on record and on critical analysis, we find that not only the independent witnesses have turned hostile, but also the statements of the official witnesses are contradictory and link evidence is not complete. - 7 - 6. As per the case of the prosecution stated above, after the recovery of the alleged contraband, the samples were separated and sealed with seal impression “M” and seal after its use was handed over to PW2 Viky Kumar. The seal so used was not produced during the trial of the case in the Court. Even Viky Kumar did not support this fact when examined in the court. According to him, he signed the memos and other documents in the Police Station. When he was confronted with his statement recorded under Section 161 of the Code of Criminal procedure, he denied having made such a statement. 7. Further when PW8 SI Ramesh Chauhan visited the spot and carried out further investigation, he testified having produced the case property for the purpose of resealing before PW11 SI/SHO Achhar Pal. His statement needs a bit consideration. Pertinently, he stated that he has resealed the parcel produced before him with his own seal producing the impression “A”. After recording entry into the register. He took the - 8 - parcel in his custody and issued certificate Ext.PW8/F. Significantly, he did not say in which register he had made the entry of the articles produced before him. Neither that register nor its abstract did find the light of the day. Still with this version, the matter did not end here. He further contradicted the prosecution story by saying that he kept the case property in his personal custody, he nowhere stated that it was deposited with PW4 MHC Mast Ram in the Malkhana. Even further, he stated that on 25th November, 2000, he had sent a sample parcel to CTL Kandaghat, through MHC alongwith specimen seals, whereas, according to PW4 MHC Mast Ram, case property stood deposited with him and the perusal of his statement shows that there was no entrustment of the sample seal for its deposit in CTL Kandaghat, but, in cross – examination stated that one sample parcel was sent through PW6 Constable Parshottam Dass, which was sealed with seal impression “A” alongwith sample seals A & M. Significantly he did not mention about another seal impression (M), with which it was alleged to - 9 - have been sealed by the Investigating Officer on the spot. He only stated that three parcels were deposited with him having seal impression “A”. Whether that pertains to this case or some other, is not known. Even the Malkhana entries were not produced and proved. 8. Further, PW6 Constable Parshottam Dass stated having taken the case property vide RC No.123/2000, whereas PW4 MHC Mast Ram referred that the case property was taken by the said Constable through RC No.23/2000. Even the copy of the Road Certificate was not placed and proved on record at the time of trial so as to know which was the parcel sent for analysis, what was its seal, whether it accompanied sample of seals and the NCB forms. Absence of such a document does not link the report of analysis with the case property. PW6 Constable Parshottam Dass has also not stated about having taken the NCB forms alongwith the samples to CTL Kandaghat. The receipt, which was issued by the Laboratory on depositing sample parcel was also not produced. - 10 - 9. We have also noticed the material discrepancy in the certificate Ext.PW8/F, which was alleged to have been issued by PW11 SI Achhar Pal after resealing the case property. There is overwriting at more than one place with respect to weight and seal used by him, which makes his version doubtful and further compounds the suspicion. 10. We also did not find any sample of seal with which the SI/SHO Ramesh Chauhan had resealed the case property. Even its facsimile was not taken against the relevant column on the NCB form Ext.PW7/D. 11. It is worth noticing that the relevant columns of the NCB forms are required to be filled in by the seizing officer on the spot. In the instant case the alleged recovery was effected on 24.11.2000. The seizing officer is alleged to have signed NCB forms on the same day but there appears overwriting on the date given therein. Further, SHO also appended his signatures on the NCB forms as a forwarding authority on 25.11.2000, so it is very much in doubt that these - 11 - NCB forms were prepared on the spot. Further in absence of the evidence regarding sending the seals used, we can not hold that it must have been sent alongwith the sample parcel. Thus, the lithographic impression certifying that the seals of the sample parcels tallied with the seal separately sent appears to be appended in a routine manner by the Chemical Examiner. 12. Therefore, for the aforesaid reasons, we are of the opinion that the prosecution has failed to prove the case against the respondents in accordance with law and the report of analysis could not connected with the alleged recovered stuff. As such, the appeal fails, hence dismissed. 13. The respondents are hereby discharged of their bail bonds entered upon by them at any time during the proceedings of the case. 14. The matter stands disposed of. Send down the record. ( R.B. Misra ) Judge. July 8, 2011. (Surinder Singh), (Pds) Judge.