IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.A. No. 432 of 2005 along with Cr.A. No.433 of 2005. Judgment reserved on: 16.9.2008 Date of Decision: 22nd Sept.2008. 1.Vineh Kumar ( in Cr.A. No.432 of 2005) 2.Kamlesh Kumari ( in Cr.A. No.433 of 2005) …Appellants. Versus. State of H.P. .. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for Reporting? Yes For the Appellant(s): Mr. Anup Chitkara, Advocate. For the Respondent(s): Mr. Rajesh Mandhotra, Deputy Advocate General. __________________________________________________________________ Deepak Gupta, J. Both these appeals are directed against the judgment of the learned trial Court whereby the appellants have been convicted for having committed offences punishable under Sections 18(b) and 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS Act) and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lacs each and in default of payment of fine to undergo rigorous imprisonment for a period of 2 years. - 2 - The relevant facts, necessary for decision of the case are that PW-1 HHC Sher Bahadur was on patrol duty on 21.7.2003. He received secret information that the two accused Vineh Kumar and Kamlesh Kumari are dealing in contraband drugs and had both gone on scooter No.HP-19-3931 towards Nadaun to bring opium and charas. He accordingly informed PW-12 ASI Harbans Lal about the information. Statement of this witness Ext.PW-1/A was recorded under Section 154 Cr.P.C. According to the Investigating Officer after recording the statement of PW-1, Ruqua Ext.PW-10/A was sent for registration of FIR and information under Section 42 of the Act was sent to the Dy.S.P. Amb. Thereafter, he associated two local witnesses and made a raiding party and a naka was laid at Patehar Chowk. After some time scooter No.HP-19-3931 came from Nadaun side and the same was stopped. The scooter was being driven by Viney Kumar. Kamlesh Kumari was the pillion rider and was carrying a bag in her hand. Both the persons were informed about their right to get searched by a Magistrate or Gazetted Officer. They opted to be searched by the raiding party. On search of the bag being carried by Kamlesh Kumari a substance which appeared to be opium was found. This was weighed and found to be 7 k.g. and 200 gms. The dickey of the scooter was also searched. In the dickey there was one bag containing 300 gms of charas. Samples from both bags were taken. The opium samples were of 50 grams each and the samples of charas were 10 grams each. According to the prosecution the samples were - 3 - sealed with seal-A and thereafter handed over to PW-9 HC Ram Kishan who resealed them with seal-N. The samples were deposited in the Malkhana register and thereafter sent for analysis. The samples were opined to be samples of opium and charas respectively. Thereafter, after completing further formalities a challan was filed. After trial the accused were convicted and sentenced as detailed hereinabove. Hence these appeals. We have heard Sh.Anup Chitkara, learned counsel for the appellants and Sh.Rajesh Mandhotra, learned Deputy Advocate General for the State. Sh.Anup Chitkara has raised the following points before us: 1)That according to the evidence led during the trial, a lady constable Raj Rani was called from Police Station, Amb to search Kamlesh Kumari. However, there is no evidence to show that Raj Rani was actually present on the spot. He submits that the search and seizure memos do not support the version of the prosecution that Raj Rani was present on the spot. 2)That the link evidence to link the samples seized with the report of the CTL is totally missing in this case. According to learned counsel for the appellants there is no evidence to show that the impressions of the seals were sent separately to the Laboratory or that they were even deposited in the Malkhana. He submits that the Malkhana register has not been produced and the road certificate has also been withheld since admittedly there were cuttings on the same. - 4 - 3)It is also contended that no reliance can be placed on the report of the CTL since this report does not in any manner show that the stuff which was recovered or seized from the appellants i.e. 7 kg 200 gms was opium within the meaning of Section 2 Clause XV of the Act. On a perusal of the evidence, we find that the two independent witnesses associated with the search and seizure operations have not supported the prosecution case at all. Therefore, the evidence of the official witnesses must be scrutinized with greater care and caution. Admittedly Constable Raj Rani was not a part of the raiding party which was initially constituted. PW-6 Head Constable Sarabjit Singh states that constables Raj Rani and Rita were summoned from Police Station, Amb. In examination-in-chief, he makes no reference as to how and when they were called for. In cross examination he however states that the lady constable was called through wireless message. He admits that there is necessity to incorporate the wireless message in the record. He also admits that the departure of the lady constable must have been entered in the record of the police station. A suggestion was put to him that the lady constable was not present and therefore the memo Ext.PW-2/D was not signed by her. He denied such a suggestion. Despite the fact that the defence had specifically raised the plea that Constable Raj Rani was not present and memo Ext.PW-2/D was not signed by her, the prosecution for reasons best known to it did not - 5 - deem it fit to examine Raj Rani and she was given up. This creates some doubt with regard to the presence of constable Raj Rani. It is true that in the facts of the present case the provisions of Section 50 of the Act were not attracted. Substance stated to be opium was recovered from the bag being carried by Kamlesh Kumari and allegedly the charas was recovered from the dickey of the scooter. Therefore, no personal search was involved and the provisions of Section 50 of the Act were not attracted. However, once the prosecution had set up the case that it had carried out a search and had associated Raj Rani, the prosecution should have examined her. It would be pertinent to mention that the memo Ext.PW-2/A whereby consent of the accused was sought and option was given to them to be searched by a Magistrate or Gazetted Officer or Police is not signed by Raj Rani. Similarly Ext.PW-2/C which is the memo regarding the personal search and the search of the scooter and the memo relating to the recovery of the alleged contraband is not signed by Raj Rani. When her presence was being disputed and was not supported by other material on record it was incumbent for the prosecution to have examined her to prove her presence at the site of occurrence and also she was the most appropriate witness to prove the recovery of the opium from the bag of Kamlesh Kumari. The prosecution has also not produced any wireless message or entries from the records of the Police Station that constable Raj Rani was summoned or that she left the Police Station. This creates a serious doubt with regard to her presence on the spot at the time of recovery. - 6 - In the present case we also find that vital link evidence is also missing. As mentioned hereinabove the samples and the bulk parcels of the alleged contraband were initially sealed with seal-A and thereafter resealed with seal-N by the SHO. PW-7 Constable Nardev Singh states that the MHC Police Station, Amb had handed over two packets of samples of opium and charas sealed with seal ‘A’ and ‘N’ along with NCB form which were taken to CTL Kandaghat. In cross examination this witness states that except for the above material nothing else was handed over to him. PW-8 who is the MHC at Police Station, Amb also only talks of the fact that the packets containing the samples of charas and opium were handed over to constable Nardev Singh along with NCB form. In cross examination he also admits that nothing else was given. The report of the CTL Ext.PW-11/A bears a stamp above the signatures of the Chemical Examiner which reads as follows: “Certified that the Seal/Seals on the samples tallied with the specimen impression of seal/seals sent separately.” There is not an iota of evidence on record to show that the seal impressions were separately sent to the Chemical Examiner. Therefore, this part of the report of the CTL is rendered extremely doubtful. In Roshan Lal vs. State of H.P., Latest HLJ 2004(HP)(DB) 968, a learned Division Bench of this Court while considering a similar point has held as follows: “No evidence has come on record to show that any specimen of the seal used in sealing the samples either by the Investigating Officer or resealing - 7 - by PW-5 S.O. Nutan Prasad was sent to the office of the Chemical Examiner in a sealed cover while sending the samples for the purpose of analysis. Though the Chemical Examiner in his report (Ext.PM) has certified to the effect that the seals found on the sealed packets were found intact and unbroken, yet in the absence of evidence that the specimen of the seals were with the Chemical Examiner, which is a part of this certificate cannot be accepted. Therefore, the prosecution has not been able to rule out the possibility of the contents of the sealed packets having been tampered with during the period it remained in the custody of PW-3 or PW-5 Station House Officer or during the course of its transit to the office of the Chemical Examiner.” The facts of the present case are exactly similar and the link evidence is missing. One of the most crucial point which arises in this case is whether this Court can rely upon the report of the Chemical Examiner that 7 kg 200 gms of stuff which was seized was opium. Opium has been defined under Clause (xv) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 as follows: “opium” means---- (a) the coagulated juice of the opium poppy; and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 per cent of morphine.” From a bare reading of the definition of opium, it is clear that “opium” means coagulated juice of opium poppy or any mixture with or without neutral material of the coagulated juice of opium poppy having more than 0.2 per cent of morphine. In the present case, according to the report of the Chemical Examiner Ex. PX, the samples were tested for meconic acid and - 8 - morphine. The report does not say that the substance which was tested was coagulated juice of opium poppy or it was a mixture of coagulated juice with or without any neutral material and the percentage of the morphine in the mixture was more than 0.2 per cent. The apex Court in Amar Singh Ramjibhai Barot v. State of Gujarat, 2008 (7) SCC 550, dealt with the question as to whether the analyzed substance was opium or not. The apex Court referred to various provisions of the Act including the definition of opium and opium derivative and held as follows:- “11. The appellant was found in possession of 920 grams of black liquid which prima facie smelt of opium. The FSL report indicates that the substance recovered from the appellant was "opium as described in the NDPS Act" containing 2.8% anhydride morphine, apart from pieces of poppy (posedoda) flowers found in the sample. 14. There does not appear to be any acceptable evidence that the black substance found with the appellant was "coagulated juice of the opium poppy" and "any mixture, with or without any neutral material, of the coagulated juice of the opium poppy". FSL has given its opinion that it is "opium as described in the NDPS Act". That is not binding on the court.” In the said case the Apex Court has clearly held that the Forensic Science Laboratory (FSL) should not only give its opinion as to what is the substance but should indicate that the substance is a contraband by indicating what was contained in the substance. Following the aforesaid judgment of the Apex Court, a Division Bench of this Court in Daulat Ram v. State of H.P, 2007 (2) Shim. - 9 - L.C. 82, wherein these reports were virtually identical, held as follows:- “11. In the case before us, as already noticed, the report does not say that the substance is coagulated juice or is a mixture of coagulated juice with some other material having morphine content more than 0.2 per cent. Therefore, the report is held to be unacceptable and not binding. Now, if the report is excluded, there remains no evidence in support of the prosecution allegation that the stuff recovered from the appellant is opium.” This Bench has also taken a same view in Cr.A. No.171 of 2007 titled Ramesh Kumar vs. State of H.P. decided on September 3, 2008. We are bound by the judgment of the Supreme Court as well as the earlier judgments delivered by this Court. The report Ex.PW-11/A in the present case also, does not disclose whether the substance which was analyzed was coagulated juice of opium or it was a mixture with or without some other material. There is no mention as to what was the percentage of morphine in the sample. All that is stated in the report is that the sample tested positive for morphine. This however does not show what was the percentage of morphine. The morphine content should have been at least 0.2%. The report is totally silent on this aspect. This report, therefore does not help the prosecution. There is no other evidence to prove that the stuff which was recovered was opium. In view of the above discussion, we have no manner of doubt that the appellants could not be convicted. Hence both the appeals are accepted and the judgment of the learned trial Court convicting - 10 - and sentencing the appellants for the offences under Sections 18(b) and 20(b)(ii)(B) of the NDPS Act is set aside and the appellants/accused are acquitted. The appellants who are in jail are ordered to be set at liberty forthwith in case their detention is not required in any other case. ( Deepak Gupta ), J. September 22, 2008. ( V.K. Ahuja ),J. PV