IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.64 of 2004. Date of Decision: June 24, 2011. _______________________________________________________ Karamjit Singh ….Appellant. Versus State of Himachal Pradesh. ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Anuj Gupta and Ms. Kanta Thakur, Advocates. For the respondent : Mr. A.K.Bansal, Addl. Advocate General. ____________________________________________________ SURINDER SINGH, J (Oral). Appellant has challenged his conviction and sentence, passed by the learned trial Court in Sessions Case No.8-N/VII-2003, on 16.2.2004, for the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ‘the Act’, whereby he has been sentenced to undergo rigorous imprisonment for five years and to pay a fine of `50,000/-, with default clause, for allegedly keeping in possession 1 Kg. opium. 2. In brief, the prosecution story can be stated thus. PW6 Sub Inspector Karam Chand was posted as Additional SHO in Police Station, Nurpur. On 14.9.2002 at about 11.00 P.M., he alongwith PW2 ASI Krishan Gopal, ASI Yog Raj, PW1 Constable Kashmir Singh and Constable Balwant Singh, left Police Station Whether reporters of the Local papers are allowed to see the judgment? - 2 - in official vehicle being driven by Balam Singh for traffic checking. Their departure stands recorded in the Rapat Roznamcha, copy of which is Ext.PW6/A. They laid the Naka at 11.15 p.m. at ‘Jassur Chowk’ and started checking of the vehicular traffic. During the intervening night of 14/15.9.2002 around 1.30 a.m., the appellant, hereinafter to be referred as ‘the accused’ came from ‘Dhameta’ side on his motorcycle. The registration number was ‘applied for’. He was stopped. His identity was asked. Sub Inspector Karam Chand demanded documents of the vehicle, but on this query he felt perplexed and did not produce the documents. He got suspicious and checked both sides of the dickey of the motorcycle and from left dickey he took out a light yellow coloured polythene envelope and from another a brown coloured envelope containing opium. It was night time. No independent witness was available, thus in the presence of the police-party, the recovered stuff was weighed which came to be one kilogram. Out of the recovered stuff, 20 grams each were separated as samples and sealed separately with seal producing the mark of English letter “K”. The remaining bulk was also sealed with the same seal. The case property alongwith the motorcycle were taken into possession vide memo Ext.PW1/A in the presence of Constables Balwant Singh and Kashmir Singh (PW1). The seal after its use was handed over to Constable Balwant Singh (not examined). - 3 - (ii) Ruqa Ext.PW6/B was sent through Constable Balwant Singh for the registration of the case, which culminated into present FIR. (iii) Site plan Ext.PW6/C of the alleged recovery was also prepared. (iv) The accused was arrested. The grounds of arrest were informed to him in writing vide Ext.PW1/B. The accused informed his wife about his arrest. (v) Then case property was produced before PW4 SI/SHO Bharat Bhusan on the same day, who resealed with his own seal “P”, thereafter deposited in the Malkhana with PW5 MHC Baldev Singh. He also filled-in the NCB forms. (vi) Special report was prepared and sent within statutory time to the officer superior. (vii) On 16.9.2002, PW5 MHC Baldev Singh handed over both the sample parcels to PW1Constable Kashmir Singh for its deposit in CTL, Kandaghat for analysis. After depositing the same, he obtained the receipt, on the Road Certificate and handed over back to the MHC aforesaid on his return. (viii) As per report, which is in Section II of the NCB form Ext.PW4/C, the sample so sent was tested positive for opium. - 4 - (ix) After completion of the investigation, Challan was presented in the Court for the trial of the accused. 3. The accused was accordingly charge- sheeted. He abjured his guilt and claimed trial. 4. To prove its case, the prosecution examined its witnesses. The accused was also examined under Section 313 of the Code of Criminal Procedure whereby the circumstances which were found attendant upon were put to him to which he denied and pleaded innocence and took up the stand that on the day of the alleged incident at about 6.30 P.M. he was stopped by the police. The documents of his motorcycle were checked and the police apprised him that he had consumed liquor, which he conceded. Then he was taken to Police Station, where he was slapped, kept for the night in the Police Station and a false case was planted. He denied the recovery of the alleged substance from him. No evidence in defence was led. 5. The learned trial Court disbelieved the defence taken by him while, believing the witnesses of the prosecution convicted and sentenced the accused as aforesaid. 6. Ms. Kanta Thakur, assisted by Shri Anuj Gupta, learned Counsel for the accused, vehemently argued - 5 - that there is a fudging in the record prepared by the police. The statements of the official witnesses are contradictory on material particulars. NCB forms were not filled in, at the spot. It also did not contain any facsimile of the seal used at the spot as well as at the time of resealing. The abstract of the Malkhana register and the copy of the Road Certificate have not been produced and proved during the trial of the case. There is no evidence whether the sample of seals were also sent for its comparison to the laboratory alongwith sample parcels. Thus, link evidence is not complete and the report aforesaid could not be linked with the stuff alleged to have been recovered and also that the report of the Chemical Examiner is discrepant, which does not conclude that the sample so analyzed was that of opium as defined under the Act. 7. On the other hand, Shri A.K. Bansal, learned Additional Advocate General, supported the impugned judgment of conviction and sentence. He further ventilated that the statements of the official witnesses are worth inspiring confidence. There is no tampering in the record. The learned trial Court has also given a finding in favour of the prosecution to that effect and the link evidence is complete. The Malkhana register and Road Certificate were produced during the trial of the case and - 6 - the same were not disputed in the cross-examination of MHC. The report of analysis clearly established that the sample parcel was of opium. Therefore, there is no infirmity in the impugned judgment, as such no interference is required in appeal. 8. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and cautiously gone through the evidence on record and I find merit in the submissions made by the learned Counsel for the accused. 9. Prosecution witnesses stated that Naka was laid on 14.9.2002 at 11.00 P.M. and the accused was apprehended at about 1.30 am meaning thereby it was the intervening night of 14/15.9.2002. After the alleged recovery, Ruqa Ext.PW6/B was sent on 15.9.2002 at 2.20 am through Constable Balwant Singh (not examined) for the registration of the case, on its basis FIR Ext.PW4/A was formally registered. If this part of the story is admitted to be correct, then while recording the FIR PW4 Bharat Bhusan, the then officiating SHO should not have marked the date of offence on 13/14.9.2002 against column No.3 in the FIR. Even there appears to be an overwriting of the date in the FIR which appears to have been overwritten from 14 to 15.9.2002. There is also an endorsement Ext.PW4/D on the Ruqa under the hand and signatures of - 7 - PW4 Bharat Bhushan which refers to the FIR No.287/02 and the date is mentioned 14.9.2002. The matter does not end here. Further, against column No.3 (b) the information is stated to have been received in the Police Station on 14.9.2002 and this fact is stated to have been recorded in DD No.35 at 2.50 am. The copy of the said DD did not find the light of the day. This unexplained confusion of date and time make the entire prosecution quite unbelievable. Shri A.K. Bansal, learned Additional Advocate General, pointed out that this could be a clerical mistake. If that is so, even then the doubt with respect to the date and time of recovery does not get vanished rather the NCB form further aggravates it. In its column No.10 PW4 SI Bharat Bhusan has given the reference of the date, time and place of deposit of case property with the MHC on15.9.2002 at 11.30 am. If the case property was deposited at 11.30 am on that date and the Ruqa was already transmitted for registration of the case through Constable Balwant Singh earlier, the FIR wherein he has given the time 2.20 a.m. makes the case more fishy as Constable Balwant Singh did not bring the case property alongwith Ruqa but it is PW6 SI Karam Chand who is stated to have produced the case property before PW4 aforesaid lateron, on his arrival in the Police Station. - 8 - 10. Further, the time of the alleged recovery on 15.9.2002 is alleged to be at 1.30 am and not 11.30 am as mentioned in the NCB form referred above. This discrepancy in the record at every step is very material and cannot be termed a bonafide mistake, thus goes to the route of the case. 11. PW6 SI Karam Chand further stated that the case property was handed over to PW4 Bharat Bhushan alongwith the specimen of seal used by him, but did not make any reference anywhere that on the spot he had also filled-up the NCB forms in triplicate. Rather, PW4 Bharat Bhushan stated having received the case property alongwith the sample of seal and also stated that the NCB forms were filled-up by him. Whereas, these were required filled-in by the Investigating Officer on the spot. He also did not say whether the sample of seal used by him at the time of resealing was also taken separately. There is no facsimile of the seal used by him or the Investigating Officer on the NCB form Ext.PW4/C. He stated that all these articles were deposited with PW5 MHC Bladev Singh. 12. PW5 MHC Baldev Singh stated that he entered the case property received from the SHO in the Malkhana register. Though, he brought the Malkhana register during the trial of the case, but its abstract was not placed and proved on record. Further on 16.9.2002 he is - 9 - stated to have sent the sample parcels through PW1 Constable Kashmir Singh through Road Certificate for its analysis to the Laboratory alongwith samples of seals and NCB forms, but even the RC against which the case property was taken to the Laboratory was not proved. PW1 Constable Kashmir Singh although stated that the sample parcels were handed over to him by the MHC aforesaid, but he nowhere made a reference that the samples of seals, NCB forms and seizure memo etc. were also handed over to him for its deposit in the Laboratory. This omission assumes importance in view of the statement of MHC. When PW1 Constable Kashmir Singh has not stated having taken the sample of seals with him and no Road Certificate has been proved and produced to substantiate this fact of taking sample seals, then it is not understood with which seal the Chemical Examiner compared the seals found on the sample parcels. In the absence of such evidence, report of the Chemical Examiner certifying that the sample parcels tallied with the specimen of seals separately sent cannot be accepted. Thus, the prosecution has not been able to rule out the possibility of the contents of the sealed packets having been tampered with as long as it remained in custody of PW1 Constable Kashmir Singh during the course of its transit from the Police Station to Chemical Examiner. - 10 - 13. Further, there is a material contradiction in the statements of PW6 SI Karam Chand and PW1 Constable Kashmir Singh. PW6 stated having separated 20 grams each from the recovered stuff as samples, but PW1 Constable Kashmir Singh, who was allegedly with him, stated SI Karam Chand separated two samples of 50 grams each and the remaining opium and the samples so separated were sealed with seal “K”. The seal after its use was entrusted to Constable Balwant Singh. But Balwant Singh was not examined nor seal was produced. Thus, the discrepancy in the weight stated by both these witnesses raises a doubt on the probity of the prosecution case in view of the above other material contradictions, which are irreconcilable. 14. The above position apart, I also find that the prosecution has failed to prove that the recovered stuff is opium. The prosecution relies upon the report of the Chemical Examiner Ext.PW4/C whereby the Chemical Examiner found the contents of meconic and morphine positive in both the samples and he generally observed that he was of the opinion that both the exhibits marked here as 2289/1 and 2289/2 contain the contents of opium. 15. Infact, “opium” has been defined in Clause (xv) of Section 2 of the Act as follows: “2.(xv)(a) the coagulated juice of the opium poppy; and - 11 - (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, But does not include any preparation containing not more than 0.2 percent of morphine”. 16. The learned Counsel taking the clue from the above definition argued that the percentage of the morphine has not been given by the Analyst in the sample so analysed, but this argument of the learned Counsel is fallacious. The prosecution case is that the alleged recovered stuff is “opium”, which is a coagulated juice of opium poppy as defined in Section 2 (xv) clause (a). Coagulated means solidified, clotted, curdled- something which has commenced in curdled/ solid form. In case the offending material falls in clause (a) then the proviso to Section 2 (xv) would not apply. The proviso would apply only in case the contraband recovered is in the form of a mixture which falls in clause (b) thereof [Also see Harjit Singh v. State of Punjab (2011) 4 SCC 441]. This is not the case of recovery of any mixture, with or without any neutral material, of the coagulated juice of the opium, but the case of the prosecution is that the recovery from the accused was of opium, i.e., coagulated juice of opium poppy. 17. As already stated above, according to the report of the Analyst, samples were tested positive for - 12 - meconic acid and morphine. The report does not say that the substance which was tested was coagulated juice of “opium poppy” or it was a mixture of such coagulated juice with or without any neutral material and the percentage of the morphine in the mixture was more than 0.2 percent. 18. The Supreme Court in Amar Singh Ramjibhai Barot v. State of Gujarat, 2005 SCC (Cri) 1704, dealt with the question as to whether the analyzed substance was “opium” or not. The Apex Court referred to various provisions of the Act including the definition of “opium” and “opium derivative” and held as follows: “11. The appellant was found in possession of 920 grams of black liquid which prima facie smelt of opium. The FSL report indicates that the substance recovered from the appellant was “opium as described in the NDPS Act” containing 2.8% anhydride morphine, apart from pieces of poppy (posedoda) flowers found in the sample. 14. There does not appear to be any acceptable evidence that the black substance found with the appellant was “coagulated juice of the opium poppy” and “any mixture, with or without any neutral material, of the coagulated juice of the opium poppy”. FSL has given its opinion that it is “opium as described in the NDPS Act”. That is not binding on the Court.” 19. In the case aforesaid, the Apex Court clearly held that the report of the Forensic Science Laboratory should not only give its opinion as to what is the substance - 13 - but should indicate that the substance is a contraband by indicating what was contained in the substance. 20. The Division Bench of this Court in Daulat Ram v. State of Himachal Pradesh, 2007(2) Shim.L.C.282, while relying upon the above judgment of the Apex Court examined the matter thoroughly and the report similar to the case in hand was held to be insufficient to hold that the sample examined fell within the definition of “opium”. Further, in Vinesh Kumar v. State of HP, 2008 (3) Shim.L.C. 364, again the Division Bench of this Court while confronting with similar situation, relied upon the above judgments, held that the report of the analyst is insufficient to hold that the sample was of “opium”. 21. Infact, apart from the above particulars to which the Chemical Examiner has stated, it was incumbent upon him to find out whether the stuff which was examined by him was of coagulated juice of opium poppy as defined in Section 2 (xvii) a plant of the species Papaver somniferum L; and the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government by notification in the official Gazette, has declared it to be opium poppy for the purposes of this Act. Thus, for the aforesaid reasons, the report of the Analyst is quite discrepant and cannot be relied upon to hold that the - 14 - sample so analysed by him was of the opium poppy as defined under the Act. 22. For the reasons aforesaid the appeal filed by the accused is allowed and the impugned judgment of conviction and sentence passed by the learned trial Court is hereby set aside. Consequently, the accused is acquitted of the offence charged, by giving him the benefit of doubt. The amount of fine, if any, deposited be refunded to him. 23. The sentence of the accused stands suspended vide order dated 17.3.2004 of this Court. In view of his acquittal, his bail bonds stand discharged. 24. Send down the record. June 24, 2011. (Surinder Singh), J. (rc)