IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.204 of 1999. Judgment reserved on: 2.6.2010. Date of decision:17.6.2010 State of H.P. ... Appellant Versus Man Singh … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant: Mr.Rajesh Mandhotra, Dy.A.G. For the respondents: Mr.Vinay Thakur, Advocate. ____________________________________________________________ Deepak Gupta, J. This appeal by the State is directed against the judgment dated 2.11.1998 delivered by the learned Sessions Judge, Shimla in Sessions Trial No.13-S/7 of 1998 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic substances Act, 1985 (hereinafter referred to as the NDPS Act). The prosecution story in brief is that on 21.2.1998 Head Constable Rajinder Singh PW-2 of C.I.A. staff Shimla 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 along with five constables, namely, Jagdish Chand, Narinder, Rajinder Singh, Budhi Singh and Jagdish had gone towards Lower Bazaar in connection with routine patrolling. They were ascending the stairs from the Lower Bazaar which lead towards Jain Dharamshala. The accused was descending the same stairs. He was carrying a bag Ext.P-2. On seeing the police officials the accused turned back and tried to run away. This aroused the suspicion of the police party and the accused was asked to stop and apprehended by the police officials. Two persons, namely, Rajeev Arora and Jagdish Chand who were also climbing the aforesaid stairs were associated with the search. The accused was given an option of being searched by the police officials, a gazetted officer or a Magistrate. The accused opted to be searched by the police officials vide memo Ext.PA. Thereafter, PW-2 Rajinder Singh and other members of the police party got themselves searched and memo in this behalf Ext.PB was prepared. Then the bag being carried by the accused was searched. On its search, charas was recovered. The charas was weighed and it was found to be 1 k.g. 250 gms. Two samples of 50 gms. each were drawn from the bulk charas. The two samples and bulk 3 charas were sealed in three separate parcels and sealed with seal ‘A’. The seal was handed over to Sh.Rajeev Arora. Search and seizure memo Ext.PC was prepared in this behalf. Thereafter, the accused was informed about the grounds of his arrest vide memo Ext.PD and thereafter he was arrested. Report Ext.PE was sent to the Police Station in this behalf. On the basis of this report FIR Ext.PF was lodged. The police officials thereafter prepared a site plan and completed other formalities on the spot. The case property was deposited with ASI Ambia Ram who was officiating as SHO on the said date. The said official also affixed his own seal ‘H’ on the parcel. Special report Ext.PG was also sent to the Superintendent of Police. One of the samples was sent to the Chemical Examiner who then gave his report Ext.PJ/1 and found that the sample was of charas. Thereafter, challan was filed in the Court. The accused was charged with having committed an offence as aforesaid. He pleaded not guilty and claimed trial. The learned trial Court has acquitted the accused mainly on the ground that the report of the Chemical Examiner Ext.PJ/1 has not been connected with the sample taken from the bulk charas. 4 The only question to be decided is whether the chemical report has been linked with the stuff seized from the accused or not. PW-2 Rajinder Singh appeared in the witness box and totally supported the prosecution case. PW-1 also supported the prosecution case and according to him search of the bag resulted in recovery of 1 k.g. and 250 gms. of charas. He also admitted that the seal had been handed over to him but he had misplaced the same. Rajeev Arora has been cross examined at length. He has stated that he runs a shop about 200 meters from the place where the accused was nabbed. According to him he was going to the Mall because the BJP President Sh.L.K. Advani was scheduled to visit Shimla. On the point of recovery, this witness has totally supported the prosecution and the learned trial Court rightly held that the statements of PW-1 and PW-2 do establish that the recovery was made from the accused. PW-2 stated that he handed over the case property to Ambia Ram who affixed his seal on the parcel containing the case property as well as on the samples. Ambia Ram was examined as PW-3. He states that on 21.2.1998 when he was officiating as SHO Sadar, Shimla, 5 PW-2 Rajinder Singh deposited FSL form Ext.PJ and case property vide certificate Ext.PH. He resealed the parcel with his own seal ‘H’. On 23.2.1998 he sent one of the two sample parcels to the Forensic Science Laboratory, Kandaghat. According to him, from 21.2.1998 to 23.2.1998 he kept the property in the Malkhana. He has also stated that so long as the case property remained with him nobody tampered with the seal impressions or the contents thereof. PW-4 Jia Lal states that on 23.2.1998, he carried two parcels sealed with seals ‘A’ and ‘H’ along with F.S.L. form Ext.PJ and delivered the same at FSL Kandaghat. He also stated that road certificate in respect of those samples had also been handed over to him and he got recorded the acknowledgement of samples from the official of the Laboratory on the road certificate and thereafter returned the road certificate to MHC Parmjit Singh. Paramjit Singh was examined as PW-5. He stated that on 23.2.1998, Ambia Ram gave him two parcels said to contain the samples of charas sealed with seals ‘A’ and ‘H’ with a direction to prepare the road certificate and to send those samples to the Forensic Science Laboratory. Thereafter, he handed over the two parcels to PW-4 Jia 6 Lal. He has clearly stated that along with the samples he handed over the sample of seal impression, docket and road certificate to Jia Lal. On the same evening Jia Lal deposited the road certificate with him. The road certificate was pasted in the book which he brought to the Court. This witness was not cross examined by the defence. The learned trial Court has acquitted the accused on the following grounds; firstly that the parcels should have borne two seals i.e. seal ‘A’ & ‘H’ whereas reverse of Ext.PJ showed that the parcel only bore the seal ‘A’; secondly the learned trial Court came to the conclusion that admittedly two samples had been sent but the report was only in respect of one sample; thirdly, according to the learned trial Court, whereas each of the samples was supposed to weigh 50 grams but the Chemical Examiner found the weight to be 46.975 grams. Another Ground which has been taken is that there is nothing to show that the specimen seal impressions of both the seals ‘A’ & ‘H’ were sent with the sample. As far as the first ground is concerned the first part of the form Ext.PJ was filled in by Rajinder Singh, Head Constable. In fact a perusal of this form shows that even 7 the date of dispatch of the sample has not been filled in. Therefore, only seal ‘A’ is mentioned against description of seal and the facsimile of seal was affixed on the form Ext.PJ itself. The Chemical Examiner has affixed his stamps in which it is stated that the seal/seals on the samples were intact and unbroken when the samples were received and that the said seal/seals on the samples tallied with the specimen impressions of the seals sent separately. Paramjit Singh was not cross examined when he stated that he had given a sample of the seal to Jia Lal. He had produced the original road certificate in the Court but he was not cross examined and no question was put to him as to which seal impression had been sent. Both PWs 4&5 have clearly stated that the samples bore the seal ‘A’ and seal ‘H’ and that these samples along with the seal impressions were taken to the Laboratory. Jia Lal has not been cross-examined at all with regard to the items taken by him to the Chemical Examiner. It is a settled law that when a witness appears in Court and deposes on oath his statement should be taken to be true unless he is subjected to cross-examination. Both these witnesses were not at all cross examined on 8 these relevant aspects. What were the seal impressions being carried by them, what they brought back from the Laboratory could have been best answered by these witnesses who not only orally testified in Court but also produced the record. If the defence, for reasons best known to it, chose not to cross examine these witnesses it did so at its own peril. The specimen seal ‘A’ was also affixed on the NCB form. The witnesses stated that they had carried the seal impressions of the seals but they were not cross examined on this aspect. Therefore, the prosecution has beyond reasonable doubt linked the report with the sample which was taken from the bulk charas. As such we are of the considered view that the learned trial Court gravely erred in acquitting the accused. Another ground which weighed with the learned trial Court was that the sample was supposed to way 50 gms. but the Chemical Examiner found the weight to be 46.975 grams. The scales used by the Investigating Officer are normal scales and the scales used in the Laboratory are scientific scales. As such a small difference in weight can occur and is not a ground to acquit the accused. 9 The Chemical Examiner has opined that the resin content of the charas was 17.80%. The total recovery was 1.250 gms and therefore the charas can be said to be in relation to 222.5 gms. Hence, the accused is guilty of having committed an offence punishable under Section 20(2)(B) of the NDPS Act. The appeal is allowed in the aforesaid terms. Having held the accused guilty, we now have to hear him on the quantum of sentence and for this purpose non-bailable warrants for his presence in the Court be issued and he be produced before us on 5th July, 2010. ( Deepak Gupta ), J. June 17, 2010 ( Sanjay Karol ), J. PV