RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 1187 OF 2001 (OLD NO. 1159/1997) Somveer ……… Appellant/accused Versus State of U.P. ……… Respondent July 30, 2009 Smt. Gaura Devi, 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 2.5.1997 passed by Second Additional Sessions Judge, Haridwar in Special Sessions Trial No. 28 of 1996, State v. Somveer, whereby the learned Second Additional Sessions Judge has convicted the appellant/accused under Section 8/15 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 one year’s R.I. 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 21.1.1996, S.I. Sumer Singh (now dead) and Constable Mangesh Kumar (PW2) were going to village Harchandpur in connection with the investigation of case crime no. 161/95 under Sections 323/354/506 IPC. When they reached at the tiraha (juncture of three roads) of the GT Road in village Mundawali, they saw a person having a plastic bag in his hand. On suspicion, they enquired from him. He ran towards south in order to flee from the spot but the police party chased him and caught hold of him at of distance of about 20 steps, who disclosed his name as Somveer i.e. the appellant/accused. He was asked to be searched before a Gazetted Officer but he told the police party that he had faith on them and they might search him. Then the policy party searched through his bag from which 5 kg opium doda was recovered. The appellant/accused was arrested by S.I. Sumer Singh at about 1.30 p.m. on that day i.e. 21.1.1996. Recovered item was sealed on the spot and the specimen of seal was prepared. Fard Ex. Ka-3 was also prepared on the spot by S.I. Sumer Singh. On the basis of this fard, chick FIR Ex. Ka-1 was prepared by PW1 Constable Ram Vinod Kumar Tyagi. Necessary entries were made by him in the GD. Carbon copy of GD is Ex. Ka-2. 4. Investigation of this case was entrusted to S.I. Pitamber Datt Pande (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 and the recovered item was sent to Forensic Laboratory, Agra for chemical analysis. 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 22.1.1997, learned Second Additional Sessions Judge, Haridwar framed the charge for the offence punishable under Section 8/15 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 Constable Ram Vinod Kumar Tyagi, who had prepared the chick FIR and registered the case in the police station; PW2 Constable Mangesh Kumar, who is the witness of the recovery and PW3 S.I. Pitamber Datt Pande, 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 Second Additional Sessions Judge, Haridwar vide his judgment and order dated 2.5.1997 convicted and sentenced the appellant/accused as discussed above. Against the aforesaid judgment and order dated 2.5.1997, the appellant/accused has preferred the present appeal. 9. To prove its case, the prosecution has examined PW1 Constable Ram Vinod Kumar Tyagi, who has stated that on 21.1.1996, he was posted as Constable Clerk in the P.S. Manglore. On that day, S.I. Sumer Singh had come in the police station along with the recovered article from the appellant/accused. On the basis of the fard Ex. Ka-3, he had prepared the chick FIR Ex. Ka-1. Necessary entries were made in the GD. Carbon copy of the GD is Ex. Ka-2. 10. PW2 is Constable Mangesh Kumar, who has stated that on 21.1.1996, he along with S.I. Sumer Singh was going to village Harchandpur for the investigation in case crime no.161/95 under Sections 323, 354 and 506 IPC. When they reached at the tiraha of GT Road in village Mundawali, they saw a person having a plastic bag in his hand. On suspicion, they enquired from the appellant/accused as to what was in the said bag. On this, he tried to escape from the spot and ran towards the south direction, but he was grabbed by the police party after covering about 20 steps. The appellant/accused was arrested by the police party on the spot at 1.30 p.m. He disclosed his name as Somveer. He was asked to be searched before a Gazetted Officer or a Magistrate, but he deposed his faith in the police party and asked them to search him. The police party searched through his plastic bag which he was carrying in his right hand. In search, about 5 kg opium doda was recovered. The recovered item was sealed on the spot and the specimen of seal was prepared. The recovery memo Ex. Ka-3 was prepared on the spot by S.I. Sumer Singh. This witness had also signed on that fard. The recovered article was opened in the court. The cloth in which the recovered article was sealed is Ex. 1, plastic bag is Ex. 2 and the recovered article is Ex. 3. 11. PW3 S.I. Pitamber Datt Pande has stated that on 21.1.1996, he was posted as S.I. in P.S. Manglore. 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. After completing the investigation, he filed the chargesheet Ex. Ka-5 against the appellant/accused. On 19.2.1996, Constable Krishna Gopal was sent to Forensic Laboratory, Agra along with the recovered article for its chemical analysis. 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 article which is said to have been recovered from the possession of the appellant/accused on 21.1.1996. 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 article was kept intact in the malkhana from the date of its recovery i.e. from 21.1.1996 till the date of its sending to the laboratory for chemical analysis i.e. 19.2.1996. (ii) That as per the statement of PW3 S.I. Pitamber Datt Pande the said article was sent to Agra on 19.2.1996 through Constable Krishna Gopal, but as per the report of the Forensic Laboratory, Agra Ex. Ka-6, the said article has been shown to be received in that laboratory on 30.3.1996. But the prosecution has not explained as to why and how the recovered article remained in the possession of Constable Krishna Gopal from 19.2.1996 to 30.3.1996 and as to whether during this period the said recovered article was not tampered with. (iii) That in the report of the Forensic Laboratory, Agra Ex. Ka-6, the quantity of the recovered article has been shown as about 5.5 kg opium doda, but as per the prosecution, only 5 kg opium doda was recovered from the possession of the appellant/accused. Hence, it also creates serious doubt on the prosecution story that the article which was sent to the laboratory was the same article which was said to be recovered from the possession of the appellant/accused. (iv) That the prosecution has not examined Constable Krishna Gopal to prove the link evidence that in the aforesaid period i.e. from 19.2.1996 to 30.3.1996, the recovered article remained intact in his possession and no tampering had taken place with that. (v) That the prosecution has not filed any documentary or oral evidence to prove that the article 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. (vi) That even no evidence was produced by the prosecution that who had deposited this article in the malkhana and who had taken it from there to send it to Forensic Laboratory at Agra. (vii) That incident took place in the broad day light at 1.30 p.m. on 21.1.1996, but the police party failed to procure any independent public witness. 14. In support of her 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. She has further placed her 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 her arguments, learned Counsel for the appellant has further placed her 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 article sent for the chemical examination was the same article shown to be recovered from the possession of the appellant/accused on 21.1.1996. 19. Learned Counsel for the appellant/accused has further argued that though the recovery was made at the public place and the place falls on the busy road, but no public witness was 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 shown to be on the busy public road where public witnesses are always available, but no effort was made to procure the public witnesses 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. Though the compliance of this provision is not mandatory but it is directory. In this regard he has cited the judgment 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 8/15 of the Act beyond reasonable doubt. As such, the impugned judgment and order dated 2.5.1997 passed by the Second Additional Sessions Judge, Haridwar is not justified and the same is liable to be set aside. 24. Accordingly, the appeal is allowed. The appellant/accused Somveer is acquitted of the charge levelled against him. The judgment and order dated 2.5.1997 passed by the Second Additional Sessions Judge, Haridwar in Sessions Trial No. 28 of 1996, State v. Somveer, convicting the appellant/accused under Section 8/15 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 one year’s R.I. awarded to the appellant/accused, 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.) 30.7.2009 PRABODH