IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No.: 9 of 1999. Decided on: 04.06.2010. ___________________________________________________ State of Himachal Pradesh. … Appellant. Versus Lal Singh. … Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the appellant : Mr. Rajinder Dogra, Additional Advocate General and Mr. Vikas Rathore, Deputy Advocate General. For the Respondent : Mr. H.K.S Thakur, Advocate vice M/s B.M. Chauhan, Advocate. Rajiv Sharma, Judge (Oral): The State has appealed against the judgment dated 31.8.1998 delivered by the learned Special Judge, Kinnaur Sessions Division at Rampur Bushahr in N.D.P.S. Case No.4 of 1997 whereby he has acquitted the accused of having committed an offence punishable under Section 18 of the Narcotic Drugs 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”). 2. The case of the prosecution, in a nutshell, is that on 10.6.1997, Deputy Superintendent of Police, Satish Negi was proceeding towards village Munish Bahli in connection with an inquiry. When he reached village Shegi, he received information that accused Lal Singh and Mashu Ram of village Jongi had cultivated opium which could be traced if raid is conducted. He deputed Head Constable Balbir and Constable Kalam Singh to keep watch on the house of accused Lal Singh and additional S.H.O. Daulat Ram and Joginder Singh Constable were deputed to keep watch on the field of Mashu Ram. He summoned Pradhan of the Halqua and Revenue Patwari of the Halqua. He despatched W.T. message to the Court of Sessions and Superintendent of Police vide Ex.P-F. Then he proceeded to village Jongi and thereafter went to the house of accused Lal Singh. The house of accused Lal Singh was searched and 604 Dodas (poppy-heads) were found lying in the Chhang portion of the house, i.e. between the roof and ceiling over the upper floor. The photographs of the recovered property were taken by Tek Chand, L.H.C. 10 Dodas (poppy-heads) were separately sealed for the purpose of sample. The remaining Dodas were also put in a sack/bag and sealed with seal mark “H”. The seal was handed over to PW-1 Saindi Ram with a direction to produce the same during the course of trial against the accused. The - 3 - specimen impression of the seal was also obtained on a piece of cloth separately. The parcels were taken into possession vide memo Ex.P-B. He handed over the case property to M.H.C. at Police Station, Rampur. He recorded rukka Ex.P-K which was sent through Kalam Singh, Constable. Sample was also sent initially to C.F.L. Kandaghat, but the same was returned and thereafter it was sent to Government Opium and Alkaloid Works, Neemuch (M.P.). According to C.F.L. report, i.e. Ex.P-M, the sample was found to be that of poppy capsules. The challan was put up after completing all the codal formalities. After completion of prosecution evidence, accused was also examined under Section 313 of the Code of Criminal Procedure. After trial, he was acquitted. Hence, this appeal by the State. 3. PW-1 is Shri Saindi Ram. He was Pradhan of Gram Panchayat, Munish since 1996. He deposed that he kept standing outside the house of the accused and PW-6, Satish Negi and Ganga Ram entered the house of the accused and then brought out 604 poppy-heads (Dodas) which were counted in the open. Out of those Dodas, 10 were made into separate parcel and the rest of the Dodas were also packed in a sack/bag. Said sack-bag was Ex.P-1. It bears his signature. The seal was handed over to him. The sealed parcels were taken into possession vide memo Ex.P-B which bears his signatures. 4. PW-2 is Shri Tulsi Ram. He was Revenue Patwari, Patwar Circle, Munish Bahli. He deposed that on 10.6.1997, he - 4 - was summoned to the village of accused by the police officials. He reached the house of accused at about 10 O’clock in the morning. He kept standing outside the house of accused. After effecting the recovery, 604 poppy-heads (Dodas) were brought out. 10 Dodas were made into a parcel for the purpose of sample and rest of the contraband was also packed in a sack- bag. Both the parcels were sealed and taken into possession vide memo Ex.P-B. He demarcated the field as pointed out by the accused where there were some pits. He prepared tatima of the said field Ex.P-C. He also issued copy of Jamabandi, again said copy of Misal Hakiyat Bandobast Jadid, Ex.P-D which was recorded in the year 1984-85. According to him, land comprised in Khasra No.1898 was in possession of the accused. 5. PW-3 is Shri Tek Chand. L.H.C. On 10.6.1997 he accompanied Deputy Superintendent, namely, Satish Negi, PW-6, Additional S.H.O. Daulat Ram and other police officials to village Jongi. He was deputed to bring Pradhan of the Panchayat, the Revenue Patwari and Ganga Ram. He narrated the manner in which the samples were taken. PW-4 is Devi Singh, who was posted as M.H.C., Police Station, Rampur. He deposed that PW-6 deposited one sack containing poppy-heads (Dodas) of opium which was bearing seal “H” pertaining to the present case. He also deposited one sealed parcel bearing seal mark “H” alongwith specimen of seal impression with him. These parcels were kept in the Malkhana and entry at Sr. - 5 - No.1100 was also made in Register No.19 of Malkhana. He despatched the sealed sample to Chemical Examiner, Kandaghat. The same was handed over to Puran Chand, Constable No.538 on 15.6.1997. The parcel was received back and the same was sent again through Nand Lal, Constable No.675 on 6.7.1997. On Court question, he answered that the sample was received back on 17.6.1997, but no entry to this effect has been made in the register. He could not tell why the sample was returned. He also admitted that no order was obtained from the Magistrate for keeping the property in safe custody in the Police Station. 6. PW-6 is Shri Satish Negi. He deposed that they were going towards village Munish Bahli in connection with an inquiry and when he reached village Sheri, he received information that Lal Singh and Mashu Ram of village Jongi had cultivated opium. Accordingly, the house of the accused was searched. After completing all the codal formalities, contraband was recovered. 10 Dodas were separately sealed for the purpose of sample and the remaining contraband was also put into a sack/bag and sealed with seal mark “H”. Specimen impressions of the seal were also taken on a piece of cloth separately. 7. It has come in the statement of PW-6 that he was accompanied by Balbir Singh, Head Constable, Kalam Singh, Constable, Additional S.H.O. Daulat Ram and Joginder Singh. - 6 - These witnesses though official, have not been examined. The prosecution has examined PW-1 as an independent witness. He has deposed that he remained standing outside when the search was carried out. PW-2 is Shri Tulsi Ram, Patwari, Halqua. He has demarcated the land and issued tatima. According to him, the land comprised in Khasra No.1898 was in possession of the accused. It has come on record that the sample was initially sent to Chemical Examiner, Kandaghat. It was sent through Puran Chand, Constable No.538 on 15.6.1997 by Devi Singh, PW-4. The sample parcel was received back on 17.6.1997. However, no entry was made in the register. It was necessary for the M.H.C., Police Station, Rampur to make entry in the register and thereafter keep this contraband in the Malkhana. He did not know why the sample was returned by the Chemical Examiner, Kandaghat. He has also admitted that no order was obtained from the Magistrate for keeping the case property in the police station in safe custody. Shri Puran Chand, who had taken the sample to Kandaghat, has not been examined. In these circumstances, it cannot be presumed that the parcel remained intact and nobody has tempered with it when it was taken to Kandaghat and returned after two days. It casts doubt in the mind of the Court whether it was the same sample which was seized from the accused. There is also violation of Sections 55 and 57 of the Act. There is no material on record to suggest that - 7 - the report of seizure of contraband and arrest of the accused was immediately sent to his superior officer by PW-6. 9. Accordingly, in view of the above discussion, we are of the considered view that the learned trial Court has rightly concluded that the prosecution has failed to prove the case against the accused beyond reasonable doubt and was fully justified in acquitting the accused. We, therefore, find no reason to interfere with the judgment of acquittal rendered by the learned trial Court. Consequently, the appeal is dismissed. Bail bonds furnished by the accused/respondent are ordered to be discharged. (R.B. Misra), Judge. (Rajiv Sharma), Judge. June 04, 2010. (sck).