1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 424 of 2001 Decided on April 21, 2011 State of H.P. …Appellant. Versus Moti Lal ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. ¹Whether approved for reporting? For the appellant: Mr. R.K. Sharma, Senior Addl. Advocate General, with Mr.Rajinder Dogra, Addl. Advocate General. For the respondent: Mr. Anoop Rattan, Advocate. Justice Surinder Singh,J. (oral) The present appeal by the State has been directed against the acquittal of the respondent passed by the learned Trial Court on 1.5.2001 in Sessions Trial No.48 of 2000, for the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short the Act) allegedly for keeping in possession 2 kg. 500 grams of charas. 2. Heard and gone through the evidence on record. 3. The case of the prosecution, in brief, can be stated thus. On 23.8.2000 PW5 Kushal Sharma, the then 2 Station House Officer, Police Station, Banjar, was heading a patrolling party in village Wah. They reached there around 4.15 PM and started going towards village Neoli. Hardly they could cover 1 km from village Neoli, they spotted the respondent, coming from the opposite side with a bag on his back, who on seeing the police tried to escape. The police got suspicious and overpowered him at some distance. Since the police entertained suspicion that he might be carrying some narcotic, thus sent for the independent witness from the vicinity, as it was a lonely place but they could not find any witness. PW5 Inspector intended to carry search of the bag of the respondent thus he rendered himself be searched by the accused but no incriminating article was found from his possession, to this effect memo Ex.PW1/B was executed. 4. PW5 Inspector Kushal Sharma, thereafter, conducted the search of the bag of the respondent, which led to the recovery of 2 kg. 500 grams of charas, out of which three samples of 25 grams were separated, packed and sealed separately with seal 'T' by fixing four seals on each of the sample and the remaining bulk was also packed and sealed separately with the same seal and taken into possession vide memo Ex.PW1/A. The respondent was arrested and grounds of arrest were informed to him in writing Ex.PW.1/C. 3 5. Rukka Ex.PW.5/B was sent through constable Sunil Kumar (PW2) to Police Station Banjar, which culminated into FIR Ex.PW6/A. Site plan Ex.PW5/C of the alleged recovery was also prepared. The specimen of the seal having impression 'T' was also taken on a piece of cloth Ex.PW5/A. NCB forms were also filled. 6. Sh.Kushal Sharma (PW5), the Investigating Officer, deposited the case property alongwith NCB forms in the Malkhana with MHC Narain Singh (PW6), on the same day. Its entry was made in the relevant register at Sl.No.66 . 7. On 24.8.2000, one of the sample parcel was sent to the CTL Kandaghat through constable Sunil Kumar vide R.C. No.43 of 2000 (Ex.PW6/B) which was deposited by him on the next day in the Laboratory and obtained the receipt on the reverse side of the Road Certificate and handed over to the MHC on returning to the Police Station. 8. Special report Ex.PW3/A was sent to the official superior within the statutory time. 9. On analyzing the sample in the Laboratory it tested positive for charas as it contained cystolithic hair and resin to the extent of 36.16 % and in the opinion of the Chemical Examiner the exhibit contained the contents of charas. 4 10. After completing the investigation, challan against the respondent was filed for the aforesaid offence and he was accordingly charge-sheeted in which he pleaded not guilty and claimed trial. 11. To prove its case, the prosecution examined its witnesses and respondent was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances which were found attended upon him and took up the defence that while travelling in Panjain bus, he was taken out by the police with a bag which did not belong to him and he was falsely implicated in this case. 12. When called upon to enter in to his evidence, the respondent examined DW1 Dila Ram, Numberdar, a co- villager of the respondent to substantiate his defence. 13. The learned trial Court acquitted the respondent on the ground that there was non-compliance of the provisions of Section 50 of the Act and also that the defence raised by the accused is probable. 14. Sh.R.K. Sharma, Senior Additional Advocate General forcefully argued that in the instant case provision of Section 50 of the Act is not attracted at all and the defence raised is false. Further that there are no material contradictions appearing in the statements of the prosecution witnesses which rendered the prosecution 5 case doubtful and the link evidence is complete. Therefore, there are grounds to convert the acquittal of the respondent into conviction. 15. Contra, Sh.Anoop Rattan learned counsel appearing on behalf of the respondent, has supported the impugned judgment of acquittal and further ventilated that the provisions of Section 50 of the Act are definitely attracted to the present facts and circumstances of the case as the alleged recovery, as per prosecution case, was effected from the bag in a sequence to the personal search of the respondent. To substantiate this argument, learned counsel for the respondent cited Union of India Versus Shah Alam & Another, AIR 2010 SC 1785. 16. We have given our thoughtful consideration to the rival contentions of the parties and have carefully and meticulously examined the evidence on record. 17. The prosecution case as set out by its witnesses reveals that alleged narcotic was recovered from the bag to which the respondent was carrying. In State of H.P. Versus Pawan Kumar,(2005) SCC 350, a decision rendered by the Larger Bench of the Apex Court held that a bag, Briefcase or any such article or container, etc. can under no circumstances be treated as body of the human being. This judgment is followed in Ajmer Singh versus State of Haryana, (2010) 3 SCC 746 by the opinion of 6 two Judges of the Division Bench which is a latest judgment to that of Union of India Versus Shah Alam, AIR 2010 SC 1785. Thus, in our considered view the learned trial Court wrongly held that this case was bad for non compliance of Section 50 of the Act. 18. As far as the contradictions are concerned, we have noticed that in the instant case the link evidence is not complete and the report of the analysis cannot be connected with the stuff recovered. According to the case of the prosecution, at the time of sampling each of the sample parcels four seals of 'T' letter was affixed and it was so deposited in the Malkhana against the entry No.66 as stated by the MHC alongwith NCB forms. On 24.8.2000, it was stated to have been sent for analysis vide Road Certificate Ex.PW6/C which was accompanying NCB forms etc. and was deposited on the next day in the Laboratory. Surprisingly, the receipt on the back of the Road Certificate does not reveal that the sample parcels alongwith NCB forms and sample of seals were received in the Laboratory. Part-I of the NCB form over which the report of the analysis is given reveals that the Investigating Officer has mentioned that the sample was having four seals but significantly PW.2 aforesaid constable in his cross- examination stated that the sample which he had taken to Kandaghat was having only three seals and sample was 7 deposited in the Laboratory. Thus, very identity of the sample is in dispute. 19. Further we also find from the evidence that seal after its use was handed over to same Constable (PW2) who carried the sample parcel to the Laboratory and in cross-examination stated that he had misplaced it somewhere. Thus, the non-production of the bag in the above factual background is a serious lapse and the possibility of tampering of the sample parcel cannot be ruled out. Not only this, the perusal of report Ex.PW7/A also reveals that the lithographic impression of the certificate to the extent that the seals on the sample, tallied with the specimen sent separately, is also unsigned by the Chemical Analyst. 20. Against the above factual scenario we are not convinced that the link evidence in the present case is complete and we are of the opinion that the report Ex.PW7/A cannot be linked with the stuff recovered from the respondent. Thus, a reasonable doubt has arisen and benefit has to be extended to the respondent. 21. For the above stated reasons, the acquittal of the respondent cannot be interfered with. The State appeal sans merit, hence dismissed. 8 22. 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 April 21, 2011 (Surinder Singh) (Purohit) Judge