IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.330 of 1995. Decided on: July 1, 2009. _______________________________________________________ State of H.P. ……..Appellant. Versus Dullo Khan. ……..Respondent. Coram Hon’ble Mr. Justice Deepak Gupta, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. Rajesh Mandhotra, Dy. Advocate General For the respondent : Mr. B.B. Vaid, Advocate. ____________________________________________________ SURINDER SINGH,J (oral) : The acquittal of the respondent, in a case under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, in short ‘the Act’, for allegedly having in his possession 1.400 Kgs of Charas is under challenge in this appeal filed by the State. Succinctly, the prosecution case against the respondent is that PW6 SI/SHO Ram Saran of Police Station Theog, was heading a patrol party on 2.3.1994 at Bus stand Theog. They came across the Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - respondent, who appeared to be terrified on seeing the police party and had tried to escape. On getting suspicious, the respondent was apprehended by the police. The police included two witnesses namely PW4 Narayan Singh and Liak Ram (not examined). The respondent was having a packet/bundle in his hand. On having been questioned by the SI Ram Saran about the contents of the packet, he could not satisfy the police officer, thus he apprehended some contraband with him. Thereafter the S.I. Ram Saran gave him an option to be searched by the police party or before any Gazetted Officer or a Magistrate. The respondent gave his consent in writing vide memo Ex.PA rendering himself to be searched by the police in the presence of the witnesses. Thereafter, SI Ram Saran offered himself to be searched by the respondent in the presence of the witnesses, but no incriminating article was found from his possession, as such memo Ex.PD to this effect was prepared. Thereafter the said Sub-Inspector conducted the search of the packet/bundle which was in the hands of - 3 - the respondents and found a T-shirt wherein 1.4 Kgs. Of Charas was wrapped in a polythene envelope. The Investigating Officer separated two samples of 25 grams each which were sealed with seal impression ‘T’ and taken into possession vide memo Ex.PB. The seal impression was separately taken on a piece of cloth Ex.PG. The seal after its use was handed over to PW4 Narayan Singh and memo Ex.PC was prepared to this effect. A ruqa Ex.PW2/A was sent for registration of the case. The police also prepared site plan Ex.PH of the site of recovery. The case property was deposited in the Malkhana with the MHC which was locked in the safe. They keys were with the Investigating Officer. The sample was sent on the same day to FSL Bharari and the special report Ex.PJ of the search and seizure was sent to the Officer superiors. On the receipt of the chemical examination report Ex.PK, the challan was presented in the court for the trial of the respondent. The respondent was charge-sheeted for the offences aforesaid, to which he pleaded not guilty and claimed trial. - 4 - After the complete trial, the respondent was acquitted by the learned trial court, which is under challenge before us. Mr. Rajesh Mandhotra, learned Deputy Advocate General vehemently argued that the evidence produced by the prosecution was wrongly brushed aside. It is further submitted that the prosecution was able to prove the link evidence and it stands proved on record that the alleged offensive stuff was recovered from the possession of the respondent and he was wrongly acquitted by the learned trial court. Shri B.B.Vaid, learned counsel appearing for the respondent has supported the impugned judgment of acquittal passed by the learned trial court and urged that the link evidence in this case is missing and further that evidence of the prosecution is contradictory and not worth inspiring confidence. We have examined the evidence on record in the light of the arguments advanced before us. It is pertinent to note that in his statement PW6 Ram Saran SI/SHO has no - 5 - where stated as to what seal was used by him in sealing the case property on the spot. Further he is stated to have deposited the case property with the MHC, in the Malkhana. PW2 Mohinder Kumar at the relevant time was posted as MHC in Police Station Theog. He did not utter even a single word regarding the deposit of the case property with him in the Malkhana. The extract of the Malkhana register was also not produced and proved before the trial court. Further PW6 Ram Saran SI/SHO has testified on oath that on the day of the alleged recovery after the deposit of the case property in the Malkhana, the sample parcel was sent to the FSL Bharari on the same day, but he no where stated what was the mode used by him for sending the sample for analysis to the Laboratory. Prosecution examined PW3 Constable Ramesh Kumar who is alleged to have taken the sample to the Laboratory on 2.3.94, to which he deposited in the Laboratory and after obtaining the receipt, it was deposited with the MHC on the same day. He did not say what was the seal used on the - 6 - sample and whether he had carried the sample of seal along with NCB form for analysis. The NCB form Ex.PK did not bear the facsimile of the seal nor there is any reference that the sample of seal was attached with the said form. It is also pertinent to note that the sample was received in the Laboratory on 4.3.1994. It is not understood when the sample was handed over to Constable Ramesh Kumar on 2.3.1994 at Theog where did he kept it for two days before its depositing in the Laboratory on 4.3.1994. Copy of the road certificate has also not been placed and proved on the record. Further PW4 Narayan Singh has stated that the seal ‘T’ was used for sealing the case property, but he could not produce it as he stated to have lost the same. In the cross-examination he admitted that the police had the prior information of the arrival of the respondent with contraband, but this fact has been denied in the cross-examination of SI Ram Saran. If the statement of PW4 Narayan Singh is taken to be correct, then in that event, there is a non-compliance of the mandatory provision - 7 - of Section 42(2) of the Act and is fatal to the prosecution. In the aforesaid circumstances, we find that the link evidence in this case is not complete and the apprehension of tampering with the sample parcel cannot be ruled out, therefore, the findings of acquittal recorded by the learned trial court cannot be interfered with. The appeal is without any merit and is accordingly dismissed. 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. (Deepak Gupta) Judge (Surinder Singh), Judge. July 1, 2009. (Pds)