RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1957 OF 2001 (OLD NO. 1692/1992) Manohar Giri & Anr. ……… Appellants/accused Versus State ……… Respondent April 29, 2009 Smt. Pushpa Joshi, Advocate for the appellants. 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 18.8.1992 passed by Sessions Judge, Pithoragarh in consolidated Sessions Trial Nos. 5/1992 & 6/1992, State v. Manohar Giri and Sessions Trial No. 7/1992 & 8/1992, State v. Fakire Giri, whereby the learned Sessions Judge has convicted the appellants/accused under Section under Section 60(i) of the Excise Act and Section 20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the Act’) and sentenced each of them to undergo rigorous imprisonment for a period of ten years along with fine of Rs. 1,00,000/- and in case of default in the payment of fine, further three years’ R.I. was awarded to them u/s 20 of the Act. Each of the appellants/accused were also sentenced to undergo R.I. for two years u/s 60(i) of the Excise Act along with fine of Rs. 500/- and in case of default in the payment of fine, further six months’ R.I. was awarded to them. It was also directed that both the sentences shall run concurrently. 2. It was reported by the CJM, Pilibhit vide his report dated 5.12.2006 that appellant no. 1 Manohar Giri has died and, therefore, appeal of Manohar Giri was abated vide order dated 15.2.2007 passed by this Court. Hence, for brevity, I will only refer to the facts in respect of appellant no. 2 Fakire Singh. 3. Heard learned Counsel for the parties and perused the entire material available on record. 4. In brief, the prosecution case is that on 15.9.1991, SI Raj Kumar Parasari, Const. Ram Bir Singh and Const. Sandeep Kumar were conducting search of vehicles at Chalthi check post. At around 12.10 PM, a bus no. UP- 02/A-0240, which was going to Lohaghat from Tanakpur, reached near the check post. The bus was stopped by the checking squad. The appellants alighted from the bus and starting moving towards the river side. When they did not stop on asking by the police party, they were chased and after covering distance of nearly 200 steps, the appellants were caught hold of by the police party at 12.15 PM. On search, 120 pouches of illicit liquor and 400 gm of illicit charas were recovered from appellant no. 2 Fakire Singh. Recovered liquor and charas were sealed on the spot in white clothe. Namoona mohar was also prepared. Thereafter fard Ex. Ka-1 was prepared by SI Raj Kumar Parasari (PW-1), who lodged the report in PS Lohaghat at 5.10 PM on 15.9.1991. On the basis of fard Ex. Ka-1, Chick FIR Ex. Ka-2 was prepared by Const. Nandan Singh (PW-3). Necessary entries were made in the GD. Carbon copy of the GD is Ex. Ka-3. Investigation of this case was entrusted to SI Kishan Lal (PW-5). 5. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan u/s 20 of the Act, which is Ex. Ka-8 & site plan u/s 60(i) of the Excise Act is Ex. Ka-9. The said illicit liquor was sent to Excise Inspector for examination, who submitted the report Ex. Ka-5. 13 gm of suspicious charas were also sent for chemical examination to Forensic Laboratory, Agra and report regarding the same sent by the Joint Director, Forensic Laboratory Agra is Ex. Ka-15. The I.O. also recorded the statement of the witnesses during the course of investigation and after completing the investigation, chargesheet Ex. Ka-12 u/s 20 of the Act and chargesheet Ex. Ka-13 u/s 60 of the Excise Act were filed against the appellant/accused no. 2. 6. Learned CJM, Pithoragarh, after giving the necessary copies of the documents to the appellant- accused as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 28.2.1992. Learned Sessions Judge framed the charges against the appellant/accused u/s 20 of the Act and u/s 60 of the Excise Act. The charges were read over and explained to the accused who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined SI Raj Kumar Parasari, PW-1; Const. Ram Bir Singh, PW-2; Const. Nandan Singh, PW-3, Excise Inspector Bharat Ratan Ashok, PW-4 and SI Kishan Lal, PW-5, the I.O. of the case. 8. 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 denied the allegations made against him and stated that he was falsely implicated in this case. However, in defence, he did not produce any oral or documentary evidence. 9. After appreciating the evidence and after hearing learned Counsel for the respective parties, learned Sessions Judge, Pithoragarh vide his judgment and order dated 18.8.1992 convicted the appellant/accused u/s 20 of the Act as well as u/s 60(i) of the Excise Act and sentenced him to undergo the punishment as discussed above. Against the aforesaid judgment and order dated 18.8.1992, the appellant/accused has preferred the present appeal. 10. To prove its case, the prosecution has examined PW-1 SI Raj Kumar Parasari, who in his deposition has reiterated the averments made in the FIR and has further stated that when the holdall of appellant no. 2 Fakire Singh was checked, 120 pouches of illicit liquor, a mattress and 400 gm of charas were recovered from his possession. 120 pouches of illicit liquor were kept separately in two plastic bags, each having 60 pouches. Fakire Singh was taken into custody. Recovered articles were sealed and recovery memo Ex. Ka-1 was prepared on the spot. On the basis of fard Ex. Ka-1, the case was registered in the police station. This witness has identified the charas as Ex. 1, holdall as Ex. 3, mattress as Ex. 4, Loi as Ex.5 and two plastic bags as Ex. 6 & 7, which were recovered from appellant no. 2 Fakire Singh. This witness has also stated that 120 pouches of illicit liquor recovered from Fakire Singh are empty and the same are Ex. 81 to 200. 11. PW-2 Const. Ram Bir Singh, in his deposition, has corroborated the statement of PW-1, SI Raj Kumar Parasari. 12. PW-3 Const. Nandan Singh has stated that he prepared the chick FIR Ex. Ka-2. Thereafter necessary entries were made in the GD, carbon copy of which is Ex. Ka-3. 13. PW-4 Bharat Ratan Ashok has stated that on 7.10.1991, he was posted as Excise Inspector in Pithoragarh. Constable Rishipal had brought the mal recovered from Fakire Singh which was in sealed condition. When the seal was opened by him, 120 pouches of liquor were found and the same were tested by him. Thereafter he prepared the report Ex. Ka-5. 14. PW-5 SI Kishan Lal, in his deposition, has stated that investigation of this case was entrusted to him. During the course of investigation, he recorded the statement of the witnesses and also inspected the place of occurrence and prepared the site plan u/s 20 of the Act, which is Ex. Ka-8 & site plan u/s 60(i) of the Excise Act is Ex. Ka-9. The illicit liquor was sent for test and charas was also sent for chemical examination to Forensic Laboratory, Agra. After completing the investigation, chargesheet Ex. Ka-12 u/s 20 of the Act and chargesheet Ex. Ka-13 u/s 60 of the Excise Act were filed against the appellant Fakire Singh. 15. 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 denied the allegations made against him and further stated that he has been falsely implicated in this case. However, in defence, he did not produce any oral or documentary evidence. 16. Learned Counsel for the appellant/accused argued that there is no link evidence to prove that the report Ex. Ka-15 is of the same article which is alleged to have been recovered from Fakire Singh on 15.9.1991 near Chalthi check post and prosecution has failed to prove the allegations made against the appellant/accused on the basis of the evidence discussed above. I find substance in the argument put forth by learned Counsel for the appellant/accused due to the following reasons:- (i) That it has been stated in the chick FIR that before searching the accused, members of police party searched each other, but they did not prepared any fard in this regard. (ii) That it is nowhere mentioned in the fard Ex. Ka-1 that separate samples of recovered liquor and charas were taken for chemical examination at the spot. Therefore, the case of prosecution that 13 gm charas was taken for chemical examination is not corroborated by the averments made in the fard Ex. Ka-1. (iii) That if the sample of 13 grams out of recovered charas 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. Rather, PW-5 SI Kishan Lal, the I.O. of the case, has stated in his cross- examination that he has no knowledge as to when the mall was produced before the Magistrate. He has admitted that no entry in this regard has been made in the GD. (iv) That it was also not proved by the prosecution that the charas said to be recovered on 15.9.1991 from the possession of the appellant/accused Fakire Singh was kept intact in the mallkhana till the date it was sent for the chemical examination. (v) That no enquiry from the driver or conductor of the said roadways bus was done either by the police party present on the spot or by the I.O. who investigated the case. (vi) That police party did not secure any public witness. Rather, PW-1 SI Raj Kumar Parasari has stated that no member of police party went inside the said bus. 17. In support of her arguments, learned Counsel for the appellant cited a judgment reported in 1999 (38) ACC 181, Shiv Charan v. 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.” 18. She has further placed her reliance on the judgment delivered by Hon’ble Apex Court in the case of State of Rajasthan v. Gurmail Singh reported in 2005 SCC (Cri) 641. Para 3, 4 and 5 of this judgment are relevant and the same are reproduced below:- “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.” 19. Reliance has also been placed on the judgment of Hon’ble the Division Bench of this High Court in Mr. Harman Chrust v. 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.” 20. Learned Counsel for the appellant further 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.” 21. 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 charas shown to be recovered from the possession of the appellant/accused Fakire Singh on 15.9.1991. The case of the prosecution is also not proved by the link evidence that the charas, shown to be recovered from the possession of the appellant/accused on the alleged date i.e. on 15.9.1991, was the same charas which was kept intact in the Malkhana up to the date when the sample was sent for chemical examination. 22. Learned Counsel 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.” 23. 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 she has cited the judgment of Gurbax Singh v. 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...” 24. Thus from the evidence discussed above, the prosecution has also failed to prove the compliance of Section 57 of the Act. 25. In view of my above discussion and conclusion, it is held that the prosecution has failed to prove the case against the appellant no. 2 Fakire Singh beyond reasonable doubt for the offence punishable u/s 20 of the Act and on this count, the impugned judgment and order dated 18.8.1992 passed by the Sessions Judge, Pithoragarh is not justified and correct. 26. Learned Counsel for the appellant has further argued that alleged recovery of 120 pouches of illicit liquor has not been proved by the prosecution beyond reasonable doubt. I find force in the argument of learned Counsel for the appellant inasmuch as it has come in the deposition of PW-1 SI Raj Kumar Parasari that the pouches which were produced before the trial court were empty. It means, that the case property was not produced before the trial court and only empty pouches were produced, whereas it was alleged that 120 pouches full of illicit liquor were recovered from the possession of appellant Fakire Singh. Hence, it creates serious doubt about the recovery of illicit liquor and prosecution has failed to prove this allegation beyond reasonable doubt. As such, appellant Fakire Singh is entitled to get the benefit of doubt. 27. As such, prosecution has also failed to prove the case against the appellant no. 2 Fakire Singh beyond reasonable doubt for the offence punishable u/s 60(i) of the Excise Act. Hence, on this count also, the impugned judgment and order dated 18.8.1992 passed by the Sessions Judge, Pithoragarh is not justified and the same is liable to be set aside. 28. Accordingly, the appeal is allowed. Appellant no. 2 Fakire Singh is acquitted of the charges levelled against him. The judgment and order dated 18.8.1992 passed by the Sessions Judge, Pithoragarh in consolidated Sessions Trial Nos. 7/1992 & 8/1992, State v. Fakire Singh, is hereby set aside. Consequently, the conviction of the appellant for the offence punishable u/s 20 of the Act and u/s 60(i) of the Excise Act and the sentence of 10 years’ R.I. with fine of Rs. 1,00,000/- and two years’ R.I. with fine of Rs. 500/- under both these sections respectively is quashed. 29. Appellant Fakire Singh is in jail. He be released forthwith from the jail if not wanted in any other case. 30. Let the lower court record be sent back. (Dharam Veer, J.) 29.04.2009 PRABODH