IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 1527 OF 2001 (OLD NO. 1974/1999) Man Mohan Singh alias Mannu ……… Appellant/accused Versus State of U.P. ……… Respondent August 10, 2009 Lokendra Dobhal, Advocate for the appellant. Mr. M.A. Khan, 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 9.7.1999 passed by the Sessions Judge, Pauri Garhwal in Special Sessions Trial No. 36 of 1997, State v. Man Mohan Singh alias Mannu, whereby the learned Sessions Judge has convicted the appellant/accused under Section 20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the Act’) and sentenced him to undergo rigorous imprisonment for a period of 10 years along with fine of Rs. 1,00,000/- and in case of default in the payment of fine, further two years’ simple imprisonment was awarded to the appellant/accused. 2. Heard learned Counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that on 15.4.1997 at 12.10 pm, S.I. Bhagwan Swaroop, Constable Anirudh Singh and Constable Sarjan Singh were on patrol duty. When they were proceeding towards Degree College Road to Mohalla Aam Parao, one person was seen near the culvert of Mohalla Johnpur, Aam Parao Bend who appeared to be suspicious. After seeing the police party he tried to flee away, but he was caught hold by the police party at about 1 pm near the culvert at a distance of 50 steps. Before searching him, police party tried to procure the public witnesses but nobody came forward. He disclosed his name as Man Mohan Singh alias Mannu i.e. the appellant/accused. On his search, 100 gm Charas contained in a polythene bag was recovered from the right pocket of his pant. Prior to his search, he was asked to give his search before a Gazetted Officer or a Magistrate. Thereupon, the appellant/accused replied to the police party that he had faith upon them and further said that Charas was kept by him for sale to customers in order to earn some money and there was no need to call any officer for his search. The recovered Charas was sealed in a clothe and specimen of seal (namoona mohar) was prepared. Recovery memo Ex. Ka-1 was also prepared on the spot. On the basis of that recovery memo, chick FIR Ex. Ka-2 was prepared on the same day i.e. on 15.4.1997 at 2.30 pm by Constable Clerk Subhash Solanki. Necessary entries were also made by him in the GD. Copy of the GD is Ex. Ka-3. 4. Investigation of this case was entrusted to S.I. Jai Prakash Tomar (PW3). During the course of investigation, the I.O. prepared the site plan of the place of occurrence, that site plan is Ex. Ka-4. Report of the Forensic Laboratory, Agra is Ex. Ka-6. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, chargesheet Ex. Ka-5 was filed against the appellant/accused. 5. On 20.11.1997, learned Sessions Judge, Pauri Garhwal framed the charge for the offence punishable under Section 18/20 of the Act against the appellant/accused. The charge was read over and explained to the appellant/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW1 S.I. Bhagwan Swaroop, the informant of this case; PW2 Constable Sarjan Singh and PW3 S.I. Jai Prakash Tomar, the I.O. of the case. 7. 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 has denied the allegations made against him and stated that he has falsely been implicated in this case. However, in defence, the appellant/accused did not produce any oral or documentary evidence. 8. After appreciating the evidence and after hearing learned Counsel for the parties, learned Sessions Judge, Pauri Garhwal vide his judgment and order dated 9.7.1999 convicted and sentenced the appellant/accused as discussed above. Against the aforesaid judgment and order dated 9.7.1999, the appellant/accused has preferred the present appeal. 9. To prove its case, the prosecution has examined PW1 S.I. Bhagwan Swaroop, who has stated that on 15.4.1997, he was posted as Sub Inspector at Kotdwar police station. On that day, he was busy in the law and order duty along with Constable Anirudh and Constable Sarjan Singh (PW2). They started from the police station at 12.10 pm vide GD No. 22. When they were proceeding towards Degree College Road to Mohalla Aam Parao, the appellant/accused was seen near the culvert of Mohalla Johnpur, Aam Parao Bend who appeared to be suspicious. After seeing the police party he tried to flee away from the spot, but he was caught hold by the police party at about 1 pm near the culvert at a distance of 50 steps. Before searching him, the police party tried to procure the public witnesses but no public witness could be procured. The captured person disclosed his name as Man Mohan Singh alias Mannu, the appellant/accused. On his search, 100 gm Charas contained in a polythene bag was recovered from the right pocket of his pant. Prior to his search, he was asked to give his search before a Gazetted Officer or a Magistrate, but he refused and said that Charas was kept by him for sale in order to earn some money. The recovered Charas was sealed in a clothe on the spot and the specimen of seal (namoona mohar) was also prepared. This witness has further stated that he had written the recovery memo Ex. Ka-1 on the spot, which was signed by him and other police personnel. Thereafter the appellant/accused was arrested. One sealed packet of Charas was opened in the court and this witness has identified the clothe in which the Charas was sealed as Ex. 1, polythene as Ex. 2 and the Charas as Ex. 3. On the basis of the recovery memo Ex. Ka-1, chick FIR Ex. Ka-2 was prepared on the same day i.e. on 15.4.1997 at 2.30 pm by Constable Clerk Subhash Solanki. Necessary entries were also made by him in the GD. Copy of the GD is Ex. Ka-3. In his cross-examination, in reply to a question put by the court, this witness has stated 14.4.1997 is very clear date and no entry regarding keeping the case property safe and secure was made in the GD Ex. Ka-3. This witness has further admitted that no entry was made in the GD that the information of this incident was conveyed to the higher authorities. 10. PW2 is Constable Sarjan Singh who has corroborated the statement of PW1 S.I. Bhagwan Swaroop and has further stated that he had brought the recovered article to the Forensic Laboratory at Agra on 28.4.1997 vide GD No. 42 and the said article was deposited in the Forensic Laboratory, Agra on 29.4.1997. 11. PW3 S.I. Jai Prakash Tomar has stated that on 15.4.1997 he was posted as Sub Inspector in Kotdwar police station. The investigation of this case was entrusted to him. During the course of investigation, he recorded the statements of the witnesses and prepared the site plan Ex. Ka-4 after inspecting the place of occurrence. Recovered article was sent to Forensic Laboratory, Agra for chemical examination. After completing the investigation, he filed the chargesheet Ex. Ka-5 against the appellant/accused. 12. 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 has denied the allegations made against him and stated that he has been falsely implicated in this case. However, in defence, the appellant/accused did not produce any oral or documentary evidence. 13. Learned Counsel for the appellant/accused argued that there is no link evidence to prove that the report Ex. Ka-6 is of the same contraband which is said to have been recovered from the possession of the appellant/accused on 15.4.1997. I find substance in the argument put forth by learned Counsel for the appellant/accused due to the following reasons: (i) That the prosecution has not produced any link evidence on the record to prove that the recovered contraband was kept intact in the malkhana from the alleged date of its recovery i.e. from 15.4.1997 till the date of its sending to the laboratory for chemical analysis i.e. 28.4.1997. (ii) That as per the statement of PW2 Constable Sarjan Singh, the said contraband was taken by him to Agra on 28.4.1997 and was deposited there on 29.4.1997, but as per the report of the Forensic Laboratory, Agra Ex. Ka- 6, the said contraband has been shown to be received in that laboratory on 30.4.1997, which creates serious doubt in the prosecution story that as to whether the test report Ex. Ka- 6 is of the same contraband which is alleged to have been recovered from the possession of the appellant/accused. (iii) That the recovery of the said contraband from the possession of the appellant/accused is alleged to have been made on 15.4.1997, but the clothe in which it was sealed has been marked as dated 14.4.1997, which leads to infer that the said contraband was sealed on 14.4.1997 and recovery has been shown to be made on 15.4.1997. This contradiction in the prosecution story creates serious doubt over it. (iv) That even PW1 S.I. Bhagwan Swaroop has admitted in his cross-examination that the clothe in which the recovered contraband was sealed is dated 14.4.1997. (v) That the incident took place in the broad day light at about 1 pm on 15.4.1997, but the police party failed to procure any independent public witness. (vi) That the prosecution has not filed any documentary or oral evidence to prove that the contraband said to be recovered from the possession of the appellant/accused was kept intact in the malkhana till it was sent to the laboratory for chemical examination and it was not tampered with. Even no GD entry has been filed by the prosecution regarding the fact that as to when the recovered contraband was deposited in the malkhana and when it was taken from there to the Forensic Laboratory, Agra which creates reasonable doubt in the prosecution story. (vii) That the specimen of seal (namoona mohar) taken by the police was not produced before the trial court and even it was not sent to the Forensic Laboratory, which also casts doubt on the case of the prosecution. 14. In support of his arguments, learned Counsel for the appellant cited a judgment reported in 1999 (38) ACC 181, Shiv Charan Vs. 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.” 15. Learned Counsel for the appellant further placed his reliance on the judgment delivered by Hon’ble Apex Court in the case of State of Rajasthan Vs. Gurmail Singh reported in 2005 SCC (Cri) 641. Para 3, 4 and 5 of this judgment are relevant and the same are reproduced hereunder:- “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.” 16. In support of his arguments, learned Counsel for the appellant has further placed his reliance on the judgment of Hon’ble 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.” 17. Learned Counsel for the appellant/accused has also 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.” 18. Thus, from the above said discussion of evidence and legal proposition, the prosecution has not proved its case against the appellant/accused beyond reasonable doubt that the contraband sent for the chemical examination was the same contraband shown to be recovered from the possession of the appellant/accused on 15.4.1997. 19. Learned Counsel for the appellant/accused has further argued that though the recovery was made at the public place, but no public witness has been shown in the recovery memo. Although it is not necessary that in each and every case public witnesses are required to prove the alleged recovery and it depends on the facts and circumstances of each and every case. But in the present case, as the recovery has been shown to be made on the public road where public witnesses are always available, but no public witness could be procured by the police party at the time of recovery, which creates doubt in the prosecution story. 20. 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.” 21. 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. Rather, PW1 S.I. Bhagwan Swaroop has admitted in his cross-examination that no entry in the GD was made regarding the fact that information of this incident was conveyed to the higher authorities. Though the compliance of this provision is not mandatory but it is directory. In this regard, learned Counsel for the appellant has cited the judgment delivered in the case 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...” 22. Thus from the evidence discussed above, the prosecution has also failed to prove the compliance of Section 57 of the Act. 23. In view of my above discussion and conclusion, it is held that the prosecution has failed to prove the case against the appellant/accused for the offence punishable u/s 20 of the Act beyond reasonable doubt. As such, the impugned judgment and order dated 9.7.1999 passed by the Sessions Judge, Pauri Garhwal is not justified and the same is liable to be set aside. 24. Accordingly, the appeal is allowed. The appellant Man Mohan Singh alias Mannu is acquitted of the charge levelled against him. The judgment and order dated 9.7.1999 passed by the Sessions Judge, Pauri Garhwal in Special Sessions Trial No. 36 of 1997, State v. Man Mohan alias Mannu, convicting the appellant under Section 20 of the Act and sentencing him to undergo R.I. for a period of 10 years along with fine of Rs. 1,00,000/- and in case of default in the payment of fine, sentence of further two years’ simple imprisonment awarded to the appellant, is hereby set aside. The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. 25. Let the lower court record be sent back. (Dharam Veer, J.) 10.8.2009 PRABODH