IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No.15 of 2011 Nain Ram S/o Gothi Ram R/o Vill: Supee Thana Kapkote, Distt. Bageshwar ….…..Appellant Versus State of Uttarakhand ……Respondent Ms Gaura Dev, Amicus Curiae, Advocate, present for the appellant. Mr. B.S. Parihar, Brief Holder, present for the State. Hon’ble Prafulla C. Pant, J. This appeal preferred under Section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgement and order dated 09.03.2011, passed by Special Judge/Sessions Judge, Bageshwar, in special Sessions Trial No. 19 of 2010, whereby accused/appellant Nain Ram S/o Gothi Ram has been convicted under Section 8 read with Section 20 of Narcotic Drugs and Psychotropic Substance Act, 1985 (for short N.D.P.S Act) and sentenced him to rigorous imprisonment for the period of 10 years and directed to pay a fine of `1 lakh. 2) Heard learned amicus curiae for the appellant and learned counsel for the State. 3) Prosecution story in brief is that on 17.07.2010, Sub- Inspector, Harish Prasad (PW-1) along with Constable, Devendra Singh (PW-2) and other two Constables namely Nandu Joshi and Lalit Mohan proceeded at 3:30P.M. from Police Station-Bageshwar for checking of the vehicles. They were checking the vehicles at Kapkot-Bharadi, road. At about 4:25 P.M. they noticed a person carrying a black bag, who on seeing the Police personnel turned back and started going speedily. On suspicion, the Police chased and apprehended him at 4.30 P.M. at a distance of 50 yards. On 2 being questioned, he disclosed his name Nain Ram S/o Gothi Ram, resident of Village-Supee, District- Bageshwar. On further questioning, accused Nain Ram told that he was carrying Contraband Cannabis (CHARAS). On this the Police party told him that if the accused wanted, he can be produced before the Magistrate or a Gazzeted Officer, for his personal search. But the accused told the Police personnel that since he has been caught, as such they can take his search. Police party on this took personal search of accused and from the bag, which was being carried by the accused, it was found that more than 1 kg. Contraband Cannabis (CHARAS) was being taken by him. Thereafter, Constable, Lalit Mohan, was sent to bring weighing balance. Thereafter, the Contraband Cannabis recovered was weighed and it was found that its weight was 1Kg and 350 gms. Thereafter, the Police prepared recovery memorandum (Ex. A1) at the spot. The First Information Report was got registered at the Police Station-Kotwali Bageshwar, against accused Nain Ram, who was arrested in connection with the aforesaid crime. Crime No. 986 of 2010, was registered relating to offences punishable under Section 8/20 of NDPS Act, 1985, and the investigation was conducted by PW-5 Inspector C.G.Goswami. Meanwhile, the Contraband Cannabis was sealed at the time of recovery and the sample was taken and separately sealed. The sealed sample item was sent through PW-4 Head Constable, Surendra Singh, to Forensic Science Laboratory, Dehradun for examination. A report (Ex.A10) was received from Forensic Science Laboratory, Dehradun, where it was examined by PW-6 Anil Kumar, Senior Scientific Assistant, confirming that the sample contained Contraband Cannabis. After interrogating the witnesses and on completion of investigation, the Investigating Officer, submitted charge sheet (Ex. A8) against the accused Nain Ram, for 3 his trial in respect of offence punishable under Section 8/20 of NDPS Act 1985. 4) The trial court after giving necessary copies to the accused as required under Section 207 of Cr.P.C., and after hearing the parties, on 25.01.2011, framed charge of offence punishable under Section8/20 of NDPS Act, 1885 in reply to which accused Nain Ram, pleaded not guilty and claimed to be tried. On this prosecution got examined PW-1 Sub-Inspector, Harish Prasad, PW- 2 Devendra Singh, PW-3 Head Constable, Dev Nath, Pw-4 Surendra Singh, PW-5 Inspector, C.G.Goswami and PW-6 Anil Kumar, Senior Scientific Assistant. Oral and documentary evidence was put to accused under Section 313 of Cr.P.C., in reply to which he pleaded that he has been falsely implicated. However, no evidence in defence was given. After hearing the parties the trial court, found accused Nain Ram, guilty of charge of offense punishable under section 8/20 of N.D.P.S. Act. Thereafter, the parties were heard on sentence and convict was sentenced to rigorous imprisonment for a period of 10 years and directed to pay a fine of Rs. `1 lakh. Aggrieved by said order and judgment dated 09.03.2011, passed by Special Judge/Sessions Judge, Bageshwar in Sessions Trial No. 19 of 2010, this appeal is preferred by convict from Jail. 5) Ms. Gaura Devi Dev, Learned Amicus Curiae, argued that the appellant has been falsely implicated in the case. In support of her argument, she drew attention of this Court to the signatures of Nain Ram, as mentioned in the recovery memo and his signatures as mentioned at the end of statement recorded under Section 313 of Cr.P.C., and also at the end of the impugned judgement after receipt of its copy. The signature of Nain Ram, mentioned in the judgement, and statement under Section 313 of Cr.P.C. are totally 4 different to the signature found on recovery memo. From the naked eye even a non-expert can see that signature “ Nain Ram” mentioned in the recovery memo are not of the person who was tried by the court below. It is pertinent to mention here that the recovery is not made in presence of any public witnesses nor any public witness has signed recovery memo. As such, after perusing the signature of ‘Nain Ram’ in the recovery memo this Court finds itself in agreement with the contention of learned Amicus Curiae that the alleged recovery mentioned in recovery memo appears to be doubtful. 6) On behalf of the appellant, it is also submitted that though it is stated by PW-1 Harish Prasad and PW-2 Devendra Singh, that at the place of incident to weigh the item alleged to be cannabis, Constable Lalit Mohan was sent to bring the weighing balance. But Constable, Lalit Mohan, for the best reasons known to the prosecution was not examined. As such the factum that the recovery item was weighed at the place of incident in the circumstances of the present case appears to be doubtful. 7) Having considered submissions of learned Amicus Curiae, present for the appellant and learned counsel, present for the State and after going through papers on record, and after appreciating the evidence on record, this Court finds that recovery of 1Kg 350gms of cannabis from the appellant Nain Ram, appears to be doubtful and can not be said to have been proved on the record beyond reasonable doubt. Therefore, the appellant is entitled to get benefit of reasonable doubt. 8) Accordingly, this appeal is allowed. The impugned judgement and order dated 09.03.2011, passed by Special Judge/Sessions Judge, Bageshwar, in special sessions trial no. 19 of 2010, is set aside. Appellant Nain Ram is acquitted from the charge 5 of offence punishable under Section 8/20 of N.D.P.S. Act, 1985. He is in Jail for last more than one year. He shall be set at liberty, if not wanted in connection with any other crime. Let a copy of this judgment be sent to the Superintendent of Jail concerned. (Prafulla C. Pant, J.) 17.08.2011 JM