IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 83 of 1995. Judgment reserved on: 19.3.2009 Date of decision: 1.4.2009 State of H.P ..Appellant Versus Sanjeev Gupta & another. ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice V.K.Ahuja, J. Whether approved for reporting ?No For the appellant: S/Shri R.M.Bisht and Rajesh Mandhotra, Dy.Advocate Generals. For the respondent: Mr.Ajay Mohan Goel, Advocate No.1. Mr.K.S.Pathania, Advocate for the respondent No.2. _____________________________________________________ Deepak Gupta, J. This appeal by the State is directed against the judgement of the learned Additional Sessions Judge, Kullu in Sessions Trial No. 16 of 1993, decided on 29.12.1993 whereby he has acquitted the accused of having committed an offence punishable under Section 20 of the 2 Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter, referred to as the ‘Act’). Briefly stated the prosecution case is that PW/7 SI/SHO Nihal Chand accompanied by ASI Karam Chand and other police officials was on patrolling duty and were going towards village Horangar. On the way, PW/6 Roshan Lal met them and joined the police party. When they were near village Khunan, they saw both the accused persons who had wrapped blankets around themselves. According to the prosecution, on seeing the police party, the accused persons tried to run away. This aroused the suspicion of the police officials. The two accused were apprehended by the police officials. Thereafter, PW/7 lifted the corner of the blanket around the accused Sanjeev Gupta and found a Khaddar bag Ex.P6 tucked under his shoulder. The said official smelt charas from the bag. He, therefore, gave an option to the accused to be searched before him or a Gazetted Officer. The accused exercised his option to be searched before a Gazetted Officer. Both the accused persons were produced before the Tehsildar PW/1 Shri Thakur Dass and search was conducted. On checking of the bag Ex.P6, the police recovered charas Ex.P4 weighing 1 kilo 3 250 grams. Two samples of 25 grams were taken and thereafter the samples as well as the bulk charas were sealed with seal impression ‘T’. The seal impression was also taken on a piece of cloth, Ex.P1. Seal Ex.P2 was handed over to the Tehsildar. Thereafter, the accused persons were arrested and other formalities were completed. The sample was sent to the office of the Chemical Examiner, C.T.L., Kandaghat who found that the sample was that of charas and the resin content was found to be 32.16 per cent. The learned Trial Court acquitted the accused mainly on one ground that there was no compliance of the provisions of Section 50 of the Act. No doubt, he referred to other certain provisions also but the main ground on which he acquitted the accused was that the police had not complied with the provisions of Section 50 of the NDPS Act. We have heard Shri Ram Murti Bisht, learned Deputy Advocate General for the State, Shri Ajay Mohal Goel, Advocate for the respondent No.1 and Shri K.S.Pathania, Advocate for the respondent No.2. It has been argued by Shri Ram Murti Bisht that the leaned Trial Court wrongly understood Section 50 of 4 the NDPS Act because it was not applicable in the present case as the search was of the bag and not of the person. He has cited a number of judgments in this behalf. Reference need only be made to the latest judgment of the Apex Court in State of Haryana Vs. Mai Ram (2008) 8 SCC 292 wherein it has been clearly held that when the contraband substance is recovered from the bag which is carried by the accused, it is not a case of personal search and non-compliance of Section 50 will have no effect. Shri Ajay Mohan Goel, learned counsel for respondent No.1 has frankly conceded that as far as Section 50 of the Act is concerned, the same is not applicable. He has however urged that the link evidence in this case is totally missing and there is grave doubt that PW/6 had two seals of the same type and the sample could have been tampered with. According to PW/1 Shri Thakur Dass who was the Tehsildar, Banjar at the relevant time, the case property was recovered and bulk charas as well as two samples were sealed with seal impression ‘T’. Impression of the seal was taken on the cloth Ex.P1 and the seal Ex.P2 was handed over to him by the police. 5 The NCB form in the present case is Ex.PJ. PW/7 SI, Nihal Chand while appearing in the witness box has not stated a word as to whether he filled the NCB form or not. It is not clear whether NCB form was filled up at the time of seizure or later. The only statement made by him in respect of the NCB form Ex.PJ is that he received the chemical report Ex.PJ and thereafter, prepared a Challan. He has not stated a word as to whether he had filled the said form or not. He has not stated as to when he affixed the seal impression ‘T’ on the NCB form. Annexure PJ bears the facsimile of the seal ‘T’. The sample was taken on 14.1.1993 and the same was dispatched on 16.1.1993. If the seal was handed over to Shri Thakur Dass on 14.1.1993 then the seal impression on the NCB form could not have been affixed later on. Shri Ram Murti Bisht, learned Deputy Advocate General has strenuously contended that it can be presumed that the impression of the seal was put on the NCB form before handing over the seal to PW/1. This contention cannot be accepted. In a criminal case, the prosecution must prove its case and an accused cannot be convicted only on the basis of presumption. On closer examination of the document PJ, we find that in fact, the impression of seal 6 ‘T’ has not been affixed on the document itself but was affixed on a separate piece of paper which has been cut out and then pasted on the document PJ. This casts grave doubt on the manner of the investigation. In the present case, the procedure under Section 55 was not followed and the case property was not resealed. This probably happen because PW/7 is both the Investigating Officer as well as the SHO of the Police Station. It would have been better if the MHC had resealed the parcels when the same were deposited with him by the Investing Officer. PW/3 does not state that when the sample was sent for analysis, the seal impression on the NCB form was also sent with the same. In the present case, the prosecution has not even properly proved the NCB form Ex.PJ. At best, the report of the Chemical Examiner has been proved. No prosecution witness has made any mention about the filling in of the NCB form and affixing the impression of the seal thereon. There is no explanation as to why the seal was not affixed on the NCB form directly but was actually cut out from a piece of paper and then placed on the NCB form. This castes a grave doubt on the prosecution story and presumption can be drawn that probably this pasting was done at a later stage. 7 As far as respondent No.2 is concerned, there is no evidence whatsoever against him. The charas was not recovered from his possession and there is nothing to show that he was aware that the accused No.1 was carrying any contraband. We also find that there are some other infirmities in this case. The provisions of Section 55 and 57 of the Act have not been complied with. True it is that these provisions are not mandatory in nature but non- compliance of these provisions in a case like the present where there appears to be some tampering in the NCB form makes it all the more difficult to convict the accused on such evidence. In view of the above discussion, it is held that the prosecution has failed to prove the fact that the charas was recovered in accordance with law from the possession of the accused. Therefore, we find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished are ordered to be discharged. ( Deepak Gupta ) Judge 1st April, 2009 (V.K.Ahuja) (m) Judge 8