IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 322 of 1996 Decided on : 13th November, 2009 State of H.P. …Appellant. Versus Baldev@ Bairagi and another …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : Mr. Jagdish Vats, Advcoate. Surjit Singh, Judge (Oral) State has appealed against the judgment dated 17.5.1995 of learned trial Court (Sessions Judge, Solan), whereby respondents Baldev @ Bairagi and his wife Dhanwati, who were tried for offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, have been acquitted. 2. Case of the prosecution, which led to the trial of the respondents, may be noticed. On 10.5.1994 around 2.25 p.m., information was received by PW-7 Prabhu Dutt, Additional SHO, Police Station, Solan, that a man, whose description was given to him, alongwith a woman often come to Parwanoo from Patiala to buy Charas. The informer further informed PW-7 Pradhu Dutt that that day also that man with the lady was present near Bus Stand, Parwanoo and in case Whether reporters of the local papers may be allowed to see the judgment? …2… their search was conducted, Charas could be recovered. PW-7 Prabhu Dutt, Additional SHO, then informed PW-2 N.D. Sareen, the Deputy Superintendent of Police. Both of them proceeded towards the bus stand and they spotted the man with the description that was given to PW-7 Prabhu Dutt. The man was respondent Baldev and he was accompanied by his wife respondent Dhanwati. Initially Baldev was carrying a polythene bag. He handed over that bag to his wife Dhanwati, when they reached near a Rehdi of grapes. Respondent Baldev Singh started purchasing grapes from the Rehdiwala. PW-2 N.D. Sareen, Dy. S.P. and PW-7 Prabhu Dutt, SI/SHO had associated, with them, two independent witnesses, namely PW-1 Avinder Kumar and DW-1 Ram Dhian Singh. Search of the respondents was conducted in the presence of the above named two witnesses and from the polythene bag, which the respondents were carrying, Charas, weighing 925 grams, was recovered. One sample, weighing 10 grams, was separated from the recovered stuff and made into a separate parcel. Bulk stuff was also made into a parcel. Both the parcels were sealed with a seal that produced impression of letter ‘T’ of English alphabet. Case was registered against the respondents. Sample was sent to Chemical Examiner, who opined that it contained resin of Cannabis and, hence, it was Charas. …3… 3. Trial Court has acquitted the respondents, holding that provision of Section 42(2) had not been complied with and the link evidence was missing. 4. We have heard the learned Assistant Advocate General as also the learned counsel for the respondents and gone through the evidence. 5. It is conceded by the learned counsel for the respondents that Section 42 of the Narcotic Drugs and Psychotropic Substances Act was not attracted to the facts of the present case, as the search was not conducted in an enclosed place, but at a public place, in the open. However, he submits that there was no evidence, linking the report of the Chemical Examiner with the stuff, allegedly recovered from the respondents. We find merit in this submission. 6. PW-7 Prabhu Dutt did not state that specimen impressions of the seal used in sealing the case property had been deposited with the MHC. The only thing, he stated, was that he sent the case property and the sample of the Charas to the Police Station through HC Karnail Singh. In the cross- examination, he stated that he handed over the packets of Charas to PW-3 Padam Singh, SHO, and said Padam Chand put his signatures and seals on the packets, containing Charas. 7. PW-3 Padam Chand, Inspector, in his testimony, stated that he stamped the case property, with his seal, and deposited the same with the MHC. He did not say that any …4… specimen impressions of the seals had also been handed over to him alongwith the case property or that he had deposited any such specimen impressions with the MHC. 8. MHC Ved Parkash appeared as PW-4 and stated that two sealed packets, bearing seal impression ‘T’, were deposited with him and that out of them, one parcel said to contain sample, was sent by him to Chemical Examiner, through PW-5 Constable Ramesh Chand. 9. PW-5 Constable Ramesh Chand stated that he carried one sample parcel to the laboratory at Kandaghat. Neither PW-4 MHC Ved Parkash nor PW-5 Constable Ramesh Chand said anything about the specimen impressions of the seal. That means, what was sent to the Chemical Examiner was only a sealed parcel, containing a sample. However, report of the Chemical Examiner Ext. PW3/A reads that seal impressions on the sample parcel tallied with the specimen impressions of the seal. Now, when there were no specimen impressions of the seal and also no such impressions had been sent to the Chemical Examiner, it is not understood with which specimen seal impressions, the Chemical Examiner compared the seal impressions on the sample parcel. HC Karnail Singh, who according to testimony of PW-7 Prabhu Dutt, had handed over the case property to the MHC, was not examined 10. Also, we find from the testimony of PW-1 Avinder Singh that alongwith two respondents, one more person had …5… been apprehended by the police. PW-7 Prabhu Dutt and PW-2 N.D. Sareen were asked in the cross-examination by the defence as to who the third man was, but they denied that any other person had been arrested alongwith the respondents, instead of explaining who that third person was and why he had been apprehended alongwith the respondents, as testified by PW-1 Avinder Singh. There should be no reason to disbelieve the testimony of PW-1 Avinder Singh to the aforesaid effect, especially when the prosecution did not challenge his aforesaid testimony by cross-examining him, with the leave of the Court or by re- examining him. For the foregoing reasons, appeal is dismissed. (Surjit Singh), J 13th November, 2009(ss) (Surinder Singh), J.