1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 308 of 2001 Decided on January 06, 2011 State of H.P. …Appellant. Versus Surinder Kumar ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. ¹Whether approved for reporting? Yes For the appellant: Mr. R.K.Sharma, Senior Addl. Advocate General, with Mr.Rajinder Dogra, Addl. Advocate General. For the respondent: Mr. Deepak Kaushal, Advocate. Justice Surinder Singh,J. (oral) Respondent is tried and acquitted for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short the Act) allegedly for keeping in possession 100 grams poppy husk in his house and 2 kgs poppy husk kept hidden in the heap of sand in the lintel, in Sessions Trial No.54-ST/7 of 2000, decided on 01.3.2001. The State, by means of the present appeal, has assailed his acquittal. 2. We have heard the learned counsel for the parties and have carefully and meticulously examined the evidence on record. 2 3. In short, the prosecution case can be stated thus. On 9.7.2000 around 6.00 or 6.30 A.M., PW.8 Ms.Ranjana Chauhan, Dy.S.P was heading a police party consisting of PW.6 Sub-Inspector Dhani Ram and other constabulary. They were in detection of the excise case. On the way, PW.8 Ms.Ranjana Chauhan, Dy.S.P received a secret information that accused-respondent was indulging in the sale of illicit liquor and in case his house is raided, a good haul of liquor could be unearth from his house. An intimation was sent to the Police Station. In the mean while, police party proceeded towards the house of accused-respondent where they reached around 8.30 A.M. The police formed a raiding party and included PW.2 Satpal and PW.3 Prem Singh as independent witnesses in the raiding party, who were found available near the house of the accused-respondent. The house of the accused- respondent was raided and searched in presence of the independent witnesses and no excise material was recovered from his house, instead, a polythene-bag containing poppy husk alongwith small envelopes, alongwith weights and the scale were found on the shelf of the house of the respondent. The polythene-bag was containing 100 grams “poppy husk”. Out of which 50 grams were taken out as sample, then sample parcel was sealed with seal producing impression 'K'. The remaining 3 bulk was sealed in a separate packet and sealed with the same seal. The seal after its use was handed over to PW.3 Prem Singh. A memo (Ex.PB) to this effect was prepared. Copy of this memo was supplied to the respondent free of cost. 4. Thereafter, a Rukka (Ex.PK) was sent to the Police Station for registration of the case, which culminated lated into the FIR (Ex.PK/1). Site Plan of the place of recovery (Ex.PL) was also prepared. 5. At the time of inspection of the house of the respondent, PW.8 Ms.Ranjana Chauhan, Dy.S.P noticed fresh earth dug near the house of the respondent and got it removed, an empty drum was taken out which was also taken into possession vide memo (Ex.PM). 6. On further interrogation of the respondent, the respondent made a disclosure statement (Ex.PC) under Section 27 of the Indian Evidence Act. Pursuant to this, he got recovered 2 kgs poppy husk from the heap of sand kept on his lintel. On weighing, it turned out 2 kgs, out of the recovered bulk 200 gram was separated as sample and sealed in a parcel. Seal which was handed over to PW.3 Prem Singh, was taken back and this parcel was sealed with the same seal 'K' and the remaining bulk of 1 4 kg 800 grams was also sealed with the same seal in presence of witnesses aforesaid and the case property was taken into possession vide memo (Ex.PD). Site plan (Ex.PM) of the said recovery was also prepared. 7. Accused-respondent was arrested. The case property was handed over to PW.6 Sub-Inspector Dhani Ram, who is stated to have deposited the same with MHC of the Police Station. On the next day, it was withdrawn and got resealed from O.P. Yadav the then Inspector, who received it with his own seal. Again the case property was said to have been deposited with MHC PW.4 Bhim Singh. 8. Sample parcel was sent through constable Sunder for depositing the same in CTL Kandaghat for its analysis and it tested positive for poppy husk as per report (Ex.P-4). 9. After completing the investigation challan against the respondent was filed for the aforesaid offence and he was put on trial was accordingly charge-sheeted for the offence aforesaid to which he did not plead guilty and claimed trial. 10. To prove its case, prosecution examined its witnesses and respondent was also examined under Section 313 of Cr.P.C. the circumstances which were found 5 attendant upon the respondent were put to him to which he denied. He took up the defence that he was called from the fields by the police through constable. When he came nearer to his house, police party standing there told him that some poppy husk was recovered from the roof of his house and made him to sit in the vehicle, thereafter he was taken to Police Station, Paonta Sahib, where his signatures were obtained on various documents under threat. 11. When respondent was called upon to enter upon his defence, no evidence was led in his defence. 12. At the end of the trial, respondent was acquitted on the ground that independent witnesses have turned hostile to the prosecution and the statements of the official witnesses contradicted. 13. On scrutiny of the evidence on record, we find that link evidence in the present case is not complete. Although, PW.8 Ms.Ranjana Chauhan, Dy.S.P stated that after recovery and arrest of the accused, respondent was handed over to SI Dhani Ram alongwith case property which was duly sealed with seal impression 'K', whereas, PW.6 Dhani Ram did not make any mention about it. Even he did not say anything about depositing of the case property with PW.4 MHC Bhim Singh. Perusal of statement 6 of PW.4 Bhim Singh aforesaid does not lead us to the conclusion whether the case property was deposited by PW.6 Inspector Dhani Ram, whereas he stated that case property was deposited by Dy.S.P (PW.8) with him on 9.7.2000 is against the fact as she stated that case property was handed over to PW.6 Dhani Ram. Further the regrettable feature of the case is that the sample of seal which was used on the spot was not said to have taken separately by any of the aforesaid official witnesses nor it was deposited alongwith the case property in the Malkhana either by PW.6 Dhani Ram or PW.8 Ms.Ranjana Chauhan, Dy.S.P. 14. Not only this, on 10.7.2000, as per statement of PW.4 Bhim Singh, SI Dhani Ram (PW.6) alleged to have withdrawn the case property from the Malkhana for getting it resealed from Inspector O.P. Yadav, Incharge of P.S. Paonta Sahib, who had resealed it with seal 'A” on the same date and issued certificate (Ex.PH). Inspector O.P. Yadav pertinently was also not examined during the trial of the case in order to find out what was the condition of the case property when produced before him nor the samples of seal were accompanying the case property at the time of resealing nor were checked whether it corresponded to the seals used on the spot. 7 15. Further on 12.7.2000, two samples duly sealed with seal 'A' are stated to have sent for Chemical Examination, to CTL Kandaghat, through constable Sunder, but it does not make any reference about the road certificate against which these samples were carried to CTL Kandaghat nor has made any mention regarding deposit of NCB forms or the sample of seals through constable Sunder Singh. 16. Further there is no explanation as to why constable Sunder was not examined in this case. Abstract of the Malkhana was not produced on record in order to find out the date and time of withdrawal and redeposit of the case property. Report of analyst (Ex.PO) although makes mention regarding receipt of two samples on 12.7.2000 through constable Sunder Singh by hand but does not say whether the case property was accompanying these samples of seal, though the lithographic impression does appear stating that the samples so sent tallied with the specimen of seal but unfortunately there is no evidence of sending samples of seal alongwith sample parcel. Even the NCB form only contains the facsimiles of seal 'A' and there is no facsimile of seal 'K'. 17. Further the alleged recovery made on 9.7.2000 and the NCB form (Ex.PO) on which the report of the 8 analyst is there pertains to 10.7.2000, which means it was not filled up on the spot nor deposited alongwith case property in the Malkhana. 18. The independent witnesses aforesaid did not support the case of the prosecution. They denied the recovery and handing over the sample of seal. In the aforesaid facts and circumstances, in our considered opinion, the report of the analyst is not connected with stuff recovered, therefore, it cannot be said that it is of no use to the prosecution. 19. We find that the report of the analyst is not inconformity with the judgment passed by Division Bench of this Court in Rajiv Kumar Alias Guglu Versus State of H.P., 2008 (1) Shim.L.C. 168, which was also followed in Rajesh Kumar 2009 (1) Shim.L.C. 75. 20. In view of the aforesaid facts and the law discussed above, we hold that the substance allegedly recovered from the accused cannot be proved to be poppy husk / opium poppy, within the meaning of the Act and also the respondent cannot be connected with the stuff recovered for want of link evidence. Therefore, acquittal of the respondent for the reasons stated above cannot be interfered. The State appeal sans merit, hence dismissed. 9 21. 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 January 06, 2011 (Surinder Singh) (Purohit) Judge