IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1394 OF 2001 (OLD NO.536/1994) Lallu Singh S/o Sri Devi Singh, R/o Vikas Marg, District Pauri Garhwal ……… Appellant/accused Versus State of U.P. ……… Respondent April 2, 2009 Sri Asif Ali, learned Amicus Curiae for the appellant Sri M.A. Khan, learned Brief Holder for the State HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant under Section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as ‘Cr.P.C.’), is directed against the judgment and order dated 6.4.1994 passed by Special Judge (Sessions Judge), Pauri Garhwal in Sessions Trial No. 25 of 1993, State v. Lallu Singh, whereby the learned Special Judge has convicted the appellant/accused under Section 20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the Act’) and sentenced him to undergo rigorous imprisonment for a period of three and half years along with fine of Rs. 10,000/- and in case of default in the payment of fine, further six months’ R.I. was awarded to the appellant/accused. 2. Heard Sri Asif Ali, learned Amicus Curiae for the appellant as well as Sri M.A. Khan, learned Brief Holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that on 8.9.1992 at about 9 PM, police recovered around 10 kilograms bhang from the room of the appellant/accused which was kept in two plastic bags inside a kit but the license for keeping the same was not produced by the appellant/accused to the police. Thereafter fard recovery memo Ex. Ka-1 was prepared on the spot, on the basis of which an FIR was lodged by S.I. Rukan Singh (PW-2) at P.S. Kotwali, Pauri at 10 PM on 8.9.1992. Chick FIR Ex. Ka-4 was prepared by Head Moharrir Indra Singh Bisht. Necessary entries were made in the GD. Copy of the GD is Ex. Ka-5. Investigation of this case was initially entrusted to S.I. Dhan Singh (PW-4). Later on, the investigation of this case was transferred to S.I. Sarop Singh Tyagi (PW-3). 4. Superintendent of Police, Pauri Garhwal, being the appointing authority of the appellant/accused, granted the permission to prosecute the appellant/accused vide his order dated 31.5.1993, Ex. Ka-2. During the course of investigation, the I.O. inspected the site and prepared the site plan Ex. Ka-6. 90 gram bhang were sent for chemical examination to Forensic Lab, Agra. Report of the Forensic Lab, Agra is Ex. Ka-7. The I.O. also recorded the statement of the witnesses during the course of investigation and after completing the investigation, a chargesheet Ex. Ka-3 under Section 20/22 of the Act was filed against the appellant/accused. 5. On 1.10.1993, learned Special Judge (Sessions Judge), Pauri Garhwal framed the charge for the offence punishable under Section 20/22 of the Act against the appellant/accused. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW-1 Constable Abdul Kamil Zaidi, PW-2 S.I. Rukan Singh, PW-3 S.I. Sarop Singh Tyagi, the I.O. of the case and PW-4 S.I. Dhan Singh, who had initially investigated the crime. 7. Thereafter statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who has denied the allegations made against him and stated that he has falsely been implicated in this case because of enmity with S.I. Rukan Singh (PW-2). However, in defence, he has not produced any oral or documentary evidence. 8. After appreciating the evidence and after hearing learned Counsel for the respective parties, learned Special Judge (Sessions Judge), Pauri Garhwal vide his judgment and order dated 6.4.1994 convicted the appellant/accused under Section 20 of the Act and sentenced him to undergo the punishment as discussed above. Against the aforesaid judgment and order dated 6.4.1994, the appellant/accused has preferred the present appeal. 9. To prove its case, the prosecution has examined PW-1 Constable Abdul Kamil Zaidi, who has stated in his deposition that on 8.9.1992 the police recovered about 10 kg bhang which kept in two plastic bags inside a kit in the room of appellant/accused. The appellant/accused failed to produce any license in this regard. That bhang was taken in the possession by the police. Kit bag full of the recovered bhang was sealed. Daroga has prepared the fard of bhang on the spot. That sealed kit bag was opened in the court on the date of the evidence. The recovered material was identified by this witness as Ex. 1. 10. PW-2, S.I. Rukan Singh has corroborated the version of PW-1 and stated that fard of recovered bhang was written by him on the spot, which is Ex. Ka-1. Thereafter the recovered bhang was sealed and the appellant/accused was taken to the police station along with the recovered material and the case was registered against the appellant/accused. 11. PW-3 S.I. Sarop Singh Tyagi, in his deposition, has stated that investigation of this case was transferred to him on 22.3.1993, which was earlier being conducted by S.I. Dhan Singh (PW-4). He had received the report of the chemical examiners on 6.4.1993. During the course of investigation, he recorded the statement of the witnesses and after completing the investigation, he filed the chargesheet Ex. Ka-3 against the appellant/accused. 12. PW-4 Dhan Singh has stated that he was posted as Sub-Inspector at Kotwali Police Station, Pauri in the month of September, 1992. On the basis of memo seizure of appellant’s house, the chick FIR was prepared by Head Constable Indra Singh Bisht. That chick FIR is Ex. Ka-4. Necessary entries were made in the GD. Copy of GD is Ex. Ka-5. During the course of investigation, he had inspected the place of occurrence and prepared the site plan Ex. Ka-6. He has further stated that on 22.9.1992, he moved an application in the court of CJM concerned to send the mall for its chemical examination to Forensic Lab, Agra. On 24.10.1992, the sample of the said mall was sent to Agra for chemical examination through Constable Brijesh Kumar. Thereafter investigation of this case was transferred to S.I. Sarop Singh Tyagi (PW-3). 13. After that the statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who has denied the allegations made against him. In reply to question no.9, he has stated that a strife took place between him and S.I. Rukan Singh (PW-2) on the issue of leave and therefore, he was arrested from the police line and was falsely implicated in this case by S.I. Rukan Singh. However, in defence, he has not produced any oral or documentary evidence. 14. Sri Asif Ali, learned Amicus curiae for the appellant/accused argued that prosecution has failed to prove the allegation made against the appellant/accused that the bhang shown to be recovered from his possession is the same bhang which was sent to Forensic Lab, Agra for its chemical examination. I find substance in the argument put forth by learned Amicus Curiae for the appellant/accused due to the following reasons:- (i) That the report of the Forensic Lab, Agra, which is Ex. Ka-7 reveals that the suspicious bhang, approximately 90 grams in quantity, was sent vide letter dated 22.10.1992 which was received in the laboratory on 28.10.1992. But PW-4 S.I. Dhan Singh, who had initially investigated the case, has stated that he had moved an application on 22.9.1992 in the CJM court for sending the bhang for chemical examination at Agra and the sealed bundle of the recovered bhang was sent on 24.10.1992 through Constable Brijesh Kumar. Therefore, there is an apparent contradiction about the fact that how the said bhang was sent and on which date it was received in the laboratory at Agra, which goes to establish that the bhang tested by the chemical laboratory is not the same bhang which was sent by the PW-4 S.I. Dhan Singh on 24.10.1992 through Constable Brijesh Kumar in the chemical laboratory. (ii) That nowhere it has come on the record that at the time of recovery any sample out of the quantity of recovered bhang was drawn on a separate packet which was to be sent for the chemical examination and this lacuna further corroborates the above inference. (iii) That if the sample of 90 grams out of recovered bhang was taken, then who, when and in whose presence the said sample was taken from the mallkhana. Nothing has come in this regard on record. (iv) That it was also not proved by the prosecution that the bhang said to be recovered on 8.9.1992 from the possession of the appellant/accused was kept intact in the mallkhana till the date it was sent for the chemical examination 15. In support of his arguments, learned Amicus Curiae cited a judgment reported in 1999 (38) ACC 181, Shiv Charan Vs. State and relied heavily on para 6 of this judgment, which is reproduced hereunder:- “6. A perusal of the record of the case shows that the prosecution had not given link evidence. It is not known where the seized Charas was kept after it was recovered from the possession of the appellant. It is also not known that who had carried it from the place of recovery to the place of storage. No evidence was also adduced as to who had carried the Charas in question to the Chemical Examiner. The said Charas is said to have been recovered on 11.10.1990 and the report of chemical examiner is dated 26.08.1991 from which it appears that it was received in the office of chemical examiner by means of letter dated 5.11.1991. No evidence is given to show that the Charas in question remained intact in the sealed bag for a period of more than one year i.e. from 11.10.1990 to 5.11.1991. In view of this, it cannot be said that the same Charas was sent to the chemical examiner for his report which was recovered from the possession of the appellant. Hon’ble the Supreme Court in the case of Valsala Vs. state of Kerala, has held that in the absence of link evidence, the conviction under the N.D.P.S. cannot be sustained.” 16. He has further placed his reliance on the judgment delivered by Hon’ble Apex Court in the case of State of Rajasthan Vs. Gurmail Singh reported in 2005 SCC (Cri) 641. Para 3, 4 and 5 of this judgment are relevant and the same are reproduced hereunder:- “3. ...we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20.5.1995, the malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW 6 on 5.6.1995. We further find that no sample of the seal was sent alongwith the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent. 4. We find no error in the judgment of the High Court. 5. This appeal is, therefore, dismissed.” 17. He has further cited the judgment of Hon’ble the Division Bench of this High Court in Mr. Harman Chrust Vs. State reported in 2005 (1) U.D.-727, wherein at para 25 it has been observed as under:- “25. Another point, which creates suspicion about the authenticity of the prosecution story, is that the recovery and seizure has not been made in accordance with the standing instruction no.1/88 dated 15.03.1988 issued by the Narcotics Control Bureau, New Delhi. Clause 1.9 of the Instructions reads as under:- “1.9 It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, Panchnama witnesses and seizing officer and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the; duplicate of each of the samples. The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop may be sealed properly. Such sealed envelop may be marked as original and duplicate. Both the envelops should also bear the S.No. of the package(s) container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seal should be legible. This envelope alongwith test memos should be kept in another envelope which should also be sealed and marked “Secret-Drug sample/Test Memo” to be sent to the concerned chemical laboratory.” 18. Learned Amicus Curiae for the appellant/accused has also invited my attention towards Clause 2.9 Standing Order no.1/89, which is reproduced as under:- “2.9. The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop which may be sealed properly. Such sealed envelop may be marked as original and duplicate. Both the envelops should also bear the No. of the package(s) container(s) from which the sample will also have a reference of the test memo. The seal should be legible. This envelope alongwith test memos should be kept in another envelope which should also be sealed and marked “Secret-Drug sample/Test Memo” to be sent to the chemical laboratory.” 19. Thus, from the above said discussion of evidence and legal proposition (supra), the prosecution has not proved its case against the appellant/accused beyond reasonable doubt that the sample sent for the chemical examination was taken from the bhang shown to be recovered from the possession of the appellant/accused on 8.9.1992. The case of the prosecution is also not proved by the link evidence that the bhang, shown to be recovered from the possession of the appellant/accused on the alleged date i.e. on 8.9.1992, was the same bhang which was kept intact in the Malkhana up to the date when the sample was sent for chemical examination. 20. Learned Amicus Curiae for the appellant/accused has further submitted that compliance of Section 57 of the Act was not made at the time of making the arrest. Section 57 of the Act is reproduced as under:- “57. Report of arrest and seizure:- Whenever any person makes any arrest or seizure, under this Act, he shall within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.” 21. In the documentary or the oral evidence it has not come that within the next 48 hours after the said arrest or seizure, the report of the particulars of arrest or seizure was made to the immediate superior officers. Though the compliance of this provision is not mandatory but it is directory. In this regard he has cited the judgment of Gurbax Singh Vs. State of Haryana reported in (2001) 3 Supreme Court Cases 28 and has relied on para-9 which is reproduced as under:- “9. ...It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, IO has admitted that seal which was affixed on the muddamal article was handed over to the witness PW1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the NDPS Act. The prosecution has not led any evidence whether the chemical analyzer received the sample with proper intact seals. It creates a doubt whether the same sample were sent to the chemcial analyzer. Further it is apparent that the IO has not followed the procedure prescribed under Section 57 of the NDPS Act of making full report of all particulars of arrest and seizure to his immediate superior officer...” 22. Thus from the evidence discussed above, the prosecution has also failed to prove the compliance of Section 57 of the Act. 23. In view of my above discussion and conclusion, it is held that the prosecution has failed to prove the case against the appellant/accused for the offence punishable u/s 20 of the Act beyond reasonable doubt. The impugned judgment and order dated 6.4.1994 passed by the Special Judge (Sessions Judge), Pauri Garhwal is not justified and the same is liable to be set aside. 24. Accordingly, the appeal is allowed. The appellant/accused Lallu Singh is acquitted from the charge levelled against him. The judgment and order dated 6.4.1994 passed by the Special Judge (Sessions Judge), Pauri Garhwal in Sessions Trial No. 25 of 1993, State v. Lallu Singh, is hereby set aside. Consequently, the conviction of the appellant/accused for the offence punishable u/s 20 of the Act and the sentence of three and half years’ R.I. with a fine of Rs. 10,000/- is quashed. The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. 25. Let the lower court record be sent back. (Dharam Veer, J.) 02.04.2009 PRABODH