IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.409 of 1996. Date of decision: 23.3.2010 State of H.P ..Appellant Versus Rajan Kumar. ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting ? No For the appellant: Shri Ramesh Thakur, Assistant Advocate General. For the respondent: Mr.B.N.Gupta, legal aid counsel, for the respondent. _____________________________________________________ Deepak Gupta, J, (Oral). This appeal by the State is directed against the judgment dated 21.11.1995 passed by the learned Sessions Judge, Chamba in Sessions Trial No.12 of 1995 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic 2 Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’). The prosecution case, in brief, is that on 30.12.1994 a police party headed by PW/7, SI, Nasib Singh, SHO of Police Station, Khairi, District Chamba was present in the rain shelter situated near Police Post, Chauhra in connection with traffic checking. At about 2.00 p.m, a person was spotted by the police coming from Barangal side. This person was having a rucksack (Pithu) on his shoulder. The police asked him to stop and then he tried to run away. He was over-powered and then he disclosed his name to be Rajan Kumar, son of Prem Chand (accused). He himself declared that the bag contained charas. Thereafter PW/7 asked the accused whether he wanted to be searched by him or before a Gazetted Officer. At that stage, independent witnesses Dev Raj, PW/1 and Mohinder Singh (not examined) were also associated. The accused reportedly stated that he should be searched before a Gazetted Officer. Thereafter, PW/7 gave a telephonic message to Dy.S.P Uttam Chand, PW/2 about the incident and about the 3 accused wanting to be searched before a Gazetted Officer. Thereafter, PW/2 Uttam Chand went to the spot. The accused was searched in his presence and 2 kgs and 500 grams of charas was recovered from the bag being carried by the accused. A sample weighing 20 grams was separated from the bulk charas. The bulk charas as well as the sample was sealed with seal ‘T’. This seal was allegedly handed over to witness Mohinder Singh. The recovery memo Ext.PB was prepared on the spot and the grounds of arrest were communicated to the accused vide memo Ext.PC. Ruka Ext.PD was sent to the police station for registration of the case on the basis of which FIR Ext.PE was registered. Special report was forwarded to the higher authorities. The other codal formalities were completed. According to the prosecution, the sample was sent to the C.T.L., Kandaghat and it was opined vide report Ext,.PH that the sample is of charas. On this basis, a challan was filed against the accused. The learned Trial Court, after trial, acquitted the accused mainly on the ground that the provisions of Section 50 of the NDPS Act have not been complied with 4 and that Section 100 of the Cr.PC has also not been complied with in letter and spirit. The learned Sessions Judge has not gone into the merits of the case. As far as Section 50 is concerned, the same is not at all attracted to the facts of the present case since the search was conducted and the recovery of the contraband was made from a bag. Reference in this behalf may be made to a decision of the Apex Court in State of H.P Vs. Pawan Kumar, 2004 Latest HLJ 2004(2) Volume 11 SC (1247). Even Section 100, Cr.P.C is also not attracted in the manner explained by the learned Trial Court. It is not necessary that in every case only the residents of the locality should be called for. In any event, PW/1 is a resident of the area in question. He may have his roots in J&K but the fact is that he was running a shop near the place of the incident. Therefore, we are not in agreement with the judgment of the learned Trial Court and hence have gone into the merits of the case. The prosecution story does not inspire confidence. According to PW/7 who headed the raiding party when the accused was given the option of being 5 searched, the accused stated that he would like to be searched only by a Gazetted Officer and thereafter, the independent witnesses were called. He thereafter, directed ASI Krishan Lal to give telephonic intimation to the Dy.S.P who arrived at 4.00 p.m. PW/2 Dy.S.P, Uttam Chand stated that he received intimation telephonically from ASI Krishan Lal and thereafter, reached the spot at 4.00 p.m. In cross- examination, he stated that he had not maintained any record of receipt of the telephonic message from ASI Krishan Lal. This is not acceptable. When such an important information is given, the same should have been entered in the daily diary. The prosecution has only examined PW/1, one of the independent witnesses. Though this witness admits that the search was conducted and the charas was recovered, there are material contradictions between the statement of this witness and the official witnesses. This witness has been declared hostile and was cross- examined at length by the prosecution. He admitted his signatures on the seizure memos and other documents. 6 He stated that when they reached the spot, PW/7 had already sent the ASI to call the Dy.S.P. According to him, no option was given in the presence of Dy.S.P as to in front of whom the accused wanted to be searched. It is true that we have held that Section 50 is not attracted in this case but the manner in which the recovery was made can be ascertained only by scrutinizing the entire evidence. According to this witness, most of the work after the Dy.S.P came was done in the police post and not in the rain shelter. None of the witnesses have stated that the police gave the option to the accused to be searched before a Gazetted Officer, before searching him. This also renders the manner of search doubtful. Even assuming for the sake of argument that it is true that the recovery of charas was made from the accused, the next important question which arises is whether this recovery is linked with the report of the Public Analyst Ext.PH. Admittedly, the recovery was made by PW/2 because according to the prosecution, the accused opted to be searched only before a Gazetted Officer. Therefore, it is the duty of PW/2 to take into 7 possession both the bulk charas and the sample. In fact, Ext.PB bears the signature of PW/2. This witness however, in Court was totally silent as to what was done with the sample or the bulk charas. He did not say a word as to whether he handed over it to the SHO or to the MHC or any other person or produced it before a Magistrate, as required by law. PW/7 in examination-in-chief was also totally silent as to what was done with the charas after it was seized at the spot. In cross-examination, he stated that the case property remained in his possession. This would be highly improper. Under Section 55 of the Act, the police is required to obtain orders from a Magistrate for the custody of the seized articles. No doubt, this provision is not mandatory but the provision being salutary in nature, should normally be followed, in letter and spirit. In this case, both PW/2 and PW/7 who were the only official witnesses on the spot were totally silent as to where the charas was kept after it was seized on 30.12.1994. PW/5 Head Constable, Gian Chand comes up with another version. It appears from his evidence that at 8 that time, he was functioning as MHC, Police Station, Khairi in the absence of PW/4 Head Constable, Dalbir Kumar who was the regular MHC. PW/5 stated that the case property in this case consisting of two sealed parcels containing charas was deposited with him. This is contrary to what PW/7 has stated. This witness further went on to say that the case property after being deposited with him, was kept by the SHO in his own cash box. This again is highly irregular. If the property was deposited with the MHC then the SHO had no business to again take the custody of the said case property, that too without any documentation. It is stated by this witness that this cash box was kept inside the Malkhana. He further stated that he handed over the case property to PW/4 when he joined duties after returning from leave. PW/4 Balbir Kumar stated that when he returned from leave in the month of January, 1994, the case property was handed over to him by Head Constable Gian Chand. As already stated above, both PW/5 and PW/4 stated that in fact, it was PW/7 who was in effective control of the case property. Therefore, how 9 could Gian Chand hand over the case property to Dalbir Kumar? No documentation of the handing over or delivery of possession of the case property from one official to another has been produced in the Court. The Malkhana register has not been produced in the Court. There should have been entries in this register evidencing the handing over and taking over of the property from one official to another. Another startling fact in this case is that though the recovery was made on 30th December, 1994, according to PW/4, he sent the sample parcel alongwith sample seal through constable Rajinder Singh, PW/3 on 19.1.1995. When the parcel remained for 21 days in the police station and there is no documentation or proof as to who was in custody of the parcel, there can also be a possibility of the said parcel being tampered with. Therefore, the sample in question, cannot be linked with the recovery and the link evidence is totally missing. In view of the above discussion, we find no merit in the appeal which is accordingly rejected. Bail 10 bonds, if any, furnished by the accused are ordered to be discharged. Before parting with the case however, we would appreciate the valuable assistance rendered by Sh.B.N.Gupta, learned legal aid counsel to this Court. ( Deepak Gupta ) Judge 23rd March, 2010 (Sanjay Karol) (m) Judge