IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 556 of 2008. & 722 of 2008 Judgment reserved on: 13.3.2009 Date of decision: 1.4.2009 Paolo Appellant in Cr.Appeal No.556/2008 Respondent in Cr.Appeal No.722/2008 Versus State of H.P. Respondent in Cr.Appeal No.556/2008 Appellant in Cr.Appeal No.722/2008 Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice V.K.Ahuja, J. Whether approved for reporting ?Yes For the appellant: Shri R.M.Bisht, Dy.Advocate General for the respondent in Cr.Appeal No.556/2008 and for the appellant in Cr.Appeal No.722/2008 For the respondent: Mr.Anup Chitkara, Advocate for the appellant in Cr.Appeal No.556/2008 and for the respondent in Cr.Appeal No.722/2008 _____________________________________________________ Deepak Gupta, J. These two appeals are being disposed of by this common judgment as they arise out of one judgment delivered by the learned Special Judge (Fast Track Court), 2 Kullu in Sessions Trial No. 8 of 2007, decided on 20.8.2008 whereby he has convicted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter, referred to as the ‘Act’) and sentenced him to undergo rigorous imprisonment for one year and six months and to pay a fine of Rs.15,000/-. In default of payment of fine, the accused has been directed to suffer simple imprisonment for two months. The prosecution case, in brief, is that on 29.11.2006 at about 7.00 a.m, PW/2 Head Constable Yash Pal alongwith HHC Chander Prakash and Constable Kuldeep Singh were on patrolling duty. They had laid a ‘Naka’ near Pulga Jungle on the pedestrian path leading from village Tahuk to Pulga. They saw a person coming from Tahuk side on foot. On seeing the police party, the said person suddenly turned back and tried to throw away a polythene envelope after removing the same from inside the coat being worn by him. Such person was over powered by the police. On questioning, he turned out to be Swiss nationalist and disclosed his name as Paolo. The identity of the accused was verified after checking the passport which he was carrying. According 3 to the prosecution, since the place where the Naka was laid was a secluded place, no independent witness could be associated. Therefore, the Investigating Officer PW/2 associated PW/1 Kuldeep Singh and HHC Chander Prakash with the search and investigation. The polythene envelope was seized by the police and on checking, it was found to contain two other polythene envelopes in which charas had been kept. On weighing, the charas was found to be 500 grams. Two samples of 25 grams each were drawn. The two samples and the remaining bulk charas were sealed in three separate parcels and three seal impressions bearing seal ‘H’ were affixed on each parcel. Seal impression of ‘H’ was obtained separately also. This seal was handed over to HHC chander Prakash. Thereafter, the accused was apprised of the commission of the offence and was arrested. Ruqua Ex.PB was prepared and sent to Police Station, Kullu for registration of FIR. Other investigation was carried out and formalities were completed. PW/2 Head Constable Yash Pal then produced the accused and the case property before the SI/SHO Mohinder Kumar who again resealed the parcels by affixing three seal impressions of seal ‘T’ on each parcel. 4 It is in evidence that one sample was got analyzed from the Central Forensic Science Library (CFSL), Chandigarh and vide report Ex.PR, the same was opined to be a sample of charas. It would be pertinent to mention here that report Ex.PR was totally silent about the percentage of resin. On the basis of this evidence, a challan was filed against the accused who pleaded not guilty. During the course of the trial, the second sample was sent for analysis to the Forensic Science Library (FSL), Junga from where report Ex.RU was received. The second sample was also opined of charas but in this sample the resin content was found to be 33.24 per cent. The prosecution examined a number of witnesses including PW/1 Constable Kuldeep Singh, PW/2 Head Constable Yash Pal. On the basis of evidence led by the prosecution, the learned Trial Court held the accused guilty and sentenced him as detailed, hereinabove. Criminal Appeal No.556 of 2008 has been filed by the accused for setting aside his conviction and sentence. Criminal Appeal No.722 of 2008 has been filed by the State praying therein that the sentence imposed be enhanced. 5 We have heard Anup Chitkara, learned counsel for the accused and Shri Ram Murti Bisht, learned Deputy Advocate General for the State. Shri Anup Chitkara, learned counsel for the accused has mainly raised three contentions before us. According to him, the prosecution by not examining constable Diwan Chand who carried the samples to Chandigarh and then to Junga has failed to prove that the said samples were not tampered with when they remained in his possession. It has also been contended that in the present case, it stands proved that H.C. Yash Pal had used similar seal bearing impression ‘H’ in another case arising out of FIR No.582 of 2006. According to Shri Anup Chitkara this casts a doubt that the prosecution had an opportunity to tamper with the case property. Lastly, it is urged that non-compliance with the provisions of Section 50 of the NDPS Act is writ large. Shri Chitkara submits that the police story cannot be accepted that after taking out the envelope from the inner pocket of the woolen coat, the petitioner tried to throw it but could not throw it away. He, therefore, argues that the police version is fabricated and cannot be believed. 6 It is not disputed before us that initially one of the samples was sent to the Central Forensic Science Laboratory, Chandigarh through constable Diwan Chand. According to PW/9 MHC Rup Singh, on 30.11.2006 one sealed sample parcel, samples of seal impression ‘H’ and ‘T’ and NCB in triplicate and other relevant documents were handed over to constable Diwan Chand vide RC No.338/2006 with a direction to hand over the same at CFSL, Chandigarh. According to him, the aforesaid articles were not accepted in the Laboratory and were returned back. Thereafter, constable Diwan Chand handed over the aforesaid articles to this witness on 2.12.2006 and he then deposited the same in the police Malkhana and removed the objections. He then went on leave. Thereafter, the samples were again sent to the CFSL, chandigarh by PW/6 H.C Manoj Kumari who was posted as Additional MHC, P.S, Kullu. She sent the sample and documents to CFSL, Chandigarh through HHC Jai Kishan. It is, therefore, obvious that from 30.11.2006 to 2.12.2006, the samples remained in the possession of constable Diwan Chand. The report Ex.PU also shows that the second sample sent to the FSL, Junga was received in the said Laboratory on 18.12.2007 through constable 7 Diwan Chand. The second sample was directed to be sent for examination to the Director FSL, Junga by the learned Special Judge vide order dated 12.12.2007. This sample was also sent through constable Diwan Chand. The prosecution has failed to examine Diwan Chand. It is important to note that according to PW/9 Rup Singh when he first sent the sample to CFSL, Chandigarh the same was returned with some objections. It has not been stated as to what were these objections. The copy of the Malkhana register has been exhibited as Ex.PS. This bears an entry showing that one sample bearing seals ‘H’ and ‘T’ alongwith various other documents was sent to CFSL, Chandigarh vide RC No.338/2006. There is another entry dated 3.12.2006 showing that one sample of charas bearing seal impression ‘H’ and ‘T’ was sent to CFSL, Chandigarh on 3.12.2006 through HHC Jai Kishan No.188. However, there is no entry in this register to show that Diwan Chand had brought back the sample on 2.12.2006 and the same was then again kept in the Malkhana. It was the duty of the MHC to have made an entry in the Malkhana register once the sample was brought from CFSL, Chandigarh and was redeposited in the Malakhana by constable Diwan 8 Chand. This casts a grave doubt on the prosecution case. It shows that the Malkhana register was not being maintained properly. We are also of the view that the prosecution should have produced and proved before the trial court the objections, if any, raised by the CFSL, Chandigarh. No document has been placed to prove that the first sample sent to CFSL, Chandigarh was returned with objections by the CFSL, Chandigarh. There is only a bare statement of PW/9 in this behalf. It is argued on behalf of the accused that the objection by the CSFL, Chandigarh, if any, could have regarding the seals on the sample. In case, the seals were tampered with then also the CFSL may return the sample without analyzing it. The prosecution, therefore, has withheld material facts from the court and an adverse inference must be drawn against the prosecution. The non-examination of Shri Diwan Chand is also fatal to the prosecution case. In cases like the present one, a duty is cast upon the prosecution to show that from the time when the sample was taken till the time it was analysed, no person had an opportunity to tamper with the same. In this case, the sample remained with 9 constable Diwan Chand for three days from 30.11.2006 to 2.12.2006. However, the accused cannot take benefit of the fact that Diwan Chand was not examined in respect of the second sample. Since the same was sent to the FSL, Junga on the asking of the accused after his statement under Section 313 had been recorded and, therefore, there was no occasion to examine Diwan Chand in respect of the second sample taken to Junga. The Apex Court in AIR 1980 SC 1314 has held as follows:- “Where the samples of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained were examined by the prosecution to prove that while in their custody the seals on the samples were not tampered with, the inevitable effect of the omission was that the prosecution fialed to rule out the possibility of the samples being changed or tampered with during the period in question – a fact which had to be proved affirmatively by the prosecution. Consequently, the accused could not be convicted under S.9A. In such a case, the prosecution could not be allowed to fill up the gaps in the prosecution story at the appellate or revisional state.” 10 In the present case, the non-examination of Diwan Chand also shows that the prosecution failed to rule out the possibility that the sample was changed or tampered with during the period it remained in the possession of Diwan Chand. Another circumstance which goes against the prosecution is that HHC Chander Prakash to whom the sample seal was handed over has also not been examined. One another important infirmity in the prosecution case is that the Investigation Officer HC Yash Pal has been proved to be using another seal having impression ‘H’ in another case arising out of FIR No.582 of 2006. The present case arises out of FIR No.629 of 2006. The non-examination of HHC Chander Prakash would not have been serious in normal case but in a case where the Investigating Officer is said to be using the similar seal in another case, the non-examination of HHC Chander Prakash also raises doubts about the credibility of the prosecution case. The learned Trial court has brushed aside the submissions of the accused that this casts a doubt that the Investigating Officer was using the same seal in a number of cases. There is no explanation by the 11 Investigating Officer as to how he used another seal with the seal ‘H’ in another case. If an Investigating Officer uses a similar seal in a number of cases then a doubt is created that the samples can be tampered with and resealed at the level of the Investigating Officer. This fact coupled with the non-examination of Diwan Chand as also no evidence to show that the sample brought back by Diwan Chand was entered in the Malkhana register raises a reasonable apprehension that the sample could have been tampered with. Once that doubt is raised, the accused cannot be convicted. As far as the contention of Shri Chitkara relating to the non-compliance of Section 50 is concerned, we are not in agreement with him since the evidence led shows that the accused had taken out the polythene envelope from inside his coat but when he was apprehended the same was in his hand. In view of the above discussion, we are of the considered view that the judgement of the learned Trial Court is illegal and liable to be set aside. We, therefore, allow the appeal filed by the accused and dismiss the appeal filed by the State. The conviction and sentence imposed upon the accused by the learned Trial Court is 12 set aside. The accused being in custody is ordered to be released at once in case his detention is not required in any other case. ( Deepak Gupta ) Judge April 1, 2009 (V.K.Ahuja) (m) Judge