IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 217 of 2002 Decided on July 19, 2011 ________________________________________________ State of H.P. …Appellant Versus Raju . …Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? Yes. For the Appellant: Mr. R.K Sharma, Sr. Additional Advocate General. For the respondent : Mr. Dinesh Sharma and Mr. Y.Paul, Advocates. Justice R.B. Misra,J.(oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure in reference to the judgment dated 29.8.2001 passed by the Learned Additional Sessions Judge, Solan in Sessions trial No. 6-S/7 of 2001, in reference to the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short called as ‘ND&PS Act’), acquitting the alleged accused/respondent. 2. Prosecution case in brief is that on 5.12.2000 Sh. Ramesh Chauhan, SI, CIA Staff Solan along with ASI Virender kumar, HC Harnam no. 32, HC Ravinder Kumar No. 147 and Constable om Praksh No. 170 were present near Oachghat regarding verification of ________________________ Whether reporters of local papers are allowed to see the judgment? 2 excise case where Shri. Chander Sheel Bhutani, Excise Traffic Inspector was also called. One Sh. Ajay Kumar was also associated in the raiding party, whereas, Chander Shhel Bhutani came at about 7.00 p.m. PW-1 Ramesh Chauhan had received a secret information that a person wearing dark blue color pant and a grey woolen jacket coming from Oachghat towards Solan was carrying charas in his possession. Such information as Ex. PW-1/A, was sent to Deputy Superintendent, Headquarter Solan, through Constable Om Prakash No. 170. Scales and weight were arranged through Constable Om Prakash. In the meantime, witness Chander Sheel Bhatuni also reached on the spot. At about 7.10 p.m., a person of above description came from Ochghat side and tried to run away after observing presence of the police officials, however, he was nabbed. After informing his legal right as to whether he wanted to be searched before a Gazetted Officer or before Magistrate and on his agreeing for being searched by Gazetted Officer (option given by the respondent is Ex. PW-1/C), the Dy. S.P, Solan was informed, who visited the spot, accordingly, in the presence of Sh. Madhu Sudan, Dy. S.P, Solan, the personal search of accused was made. During search, one polythene white colour packet was recovered from the jacket of the accused. Out of this packet 790 grams of charas was recovered. Two samples of 20 grams of each were taken out of the recovered charas and both the samples were sealed with seal ‘X’each. The remaining charas was kept in different packets, sealed with seal ‘X’. Both the samples were marked as S-1 to S-2. Sample of seal Ex. PW-1/E was taken separately and seal was handed over to Ajay Kumar and receipt Ex. 3 PW-1/F was prepared. Ruka Ex. PW-1/H was sent through Constable Om Prakash to the Police Station, Solan. Copy of seizure memo Ex. PW-1/G was given to accused/respondent Raju. Thereafter, ASI Narain Singh reached at the spot and prepared inventory list and handed over all valuable papers of the case to PW-1 Ramesh Chauhan. Inventory list Ex. PW-1/J was prepared in which signatures of PW-1 were also obtained. NCB form Ex. PW1/K was also prepared by PW-1 on which PW-1 has put signatures. The samples were sent for chemical examination and after investigation respondent/accused was charged for the aforesaid offences. 3. In order to prove its case, the prosecution examined as many as twelve prosecution witnesses, whereas, the accused / respondent, in his statement under Section 313 of Cr.P.C., denied the prosecution case. 4. PW-1 Sh. Ramesh Chauhan in his endeavour to support the prosecution case has stated in his cross-examination that he has handed over all the papers to IO on 5.12.2000 itself. PW-1 has specifically stated in his cross-examination that he has not prepared any paper or document thereafter. PW-1 further stated in his cross- examination that he had handed over NCB form Ex. PW-1/K duly filled to the I.O on the spot on 5.12.2000. 5. PW-2 Yashpal has also stated that on 7.12.2000 MHC Mast Ram , P.S Solan vide RC No. 128 of 2000 handed over a sample of charas bearing two seals of impression ‘A’ along with sample of seal to him and he deposited the same to CTL, Kandaghat and receipt in that regard was returned to MHC Mast Ram. It is pertinent to 4 mention that PW-2 Yashpal has not mentioned about the sending of NCB form along with samples of charas. 6. PW-3 Om Prakash in support of prosecution case has stated that he arranged weight and measures and had accompanied Dy. S.P Madhu Sudan to the spot and on personal search of accused, one polythene packet was recovered from the armpit of the accused/respondent, which was concealed by him under the jacket. The polythene packet was bearing writing something like shoes Charas was recovered from white colour packet which was kept in the aforesaid polythene packet. PW-3 further stated that the charas was black in colour and was in the shape of rolls and balls. The samples were kept in two separate match boxes and both the samples were sealed with seal impression ‘X’ and were marked as S-1 and S-II, respectively. Remaining charas was sealed with seal impression ‘X’ and marked as P-1. Rukka Ex. PW-1/H was taken to police Station Solan and was handed over to SI/SHO Chain Ram, whereupon, FIR Ex. PW-3/A was registered at Police Station, Solan. As per the testimony of PW-3 the charas was recovered from the arm pit of accused, which was concealed by him under the jacket, whereas, PW- 1 has stated that charas was recovered from the packet kept in the polythene. 7. PW-4 Harnam Singh at relevant time posted at Solan, has stated SI Ramesh Chauhan had received secret information, and accordingly, informed the police party and accused was apprehended. On personal search of the accused, charas concealed by him in his jacket was recovered. PW-4 has further stated that after 5 apprehending the accused, no one was summoned from the village Ochghat. However, SI Ramesh Chauhan telephonically informed Dy. S.P and accordingly Dy. S.P came to the spot at about 8 p.m. Personal search of the accused was conducted by SI Ramesh and Dy. S.P Madhu Sudan. One polythene packet bearing writing as country shoes was recovered from the possession of the accused. Samples were handed over to Constable Om Prakash and samples were sealed by C.Om Prakash with Seal impression put on separate piece of cloth and these two seal impressions were prepared by Constable Om Prakash. Though PW-4 was the eye witness to the spot and of search and recovery of contraband goods had not stated like PW-3 that contraband good (Charas) was recovered from the armpit of accused, which was concealed by him in his jacket. 8. PW-5 MHC Mast Ram has stated that on 6.12.2000 ASI Chain Ram deposited with him three parcels sealed with seal impression ‘A’ containing charas in a parcel sealed with seal impression ‘X’. The samples of seal impression A and X were also deposited with him along with parcels. However, on 7.12.2000 PW-5 sent the sample of seals ‘A’ and ‘X’ along with letter vide RC No. 128 of 2000 through Constable Yash No. 238 to CTL, Kandaghat who on return deposited the receipt to PW-5. PW-5 has stated in his cross- examination that in all, four seals were deposited out of which two seals as ‘A’ and two as ‘X’. Seal impressions were taken into a separate piece of cloth and no other parcel was deposited with PW-5 except as mentioned in Malkhana Register. Forwarding letter to chemical analyst was written by SHO. N.C.B form was neither 6 deposited in Malkhana nor there was any entry of NCB form in the Malkhana register. Subsequently, PW-5 also stated that he was not able to say that whether that forwarding letter was written by SHO. The key of room the where the charas was kept was in custody of SHO. PW-5 further stated that letter and NCB form were handed over to him by SHO on 7.12.2000 in the morning at about 9.00 a.m. 9. PW-6 Rakesh posted as S.P, Solan received a special report Ex. PW-6/A on 6.12.2000. 10. PW-7 Dy. S.P Madhu Sudan has stated that he had received a telephone call on 5.12.2000 at about 7.30 p.m. after obtaining option from the accused regarding his personal search. He reached on the spot and accused was searched in presence of independent witnesses. One polythene packet was recovered from the possession of the accused containing 790 grams of charas. Samples were prepared and sealed with seal impressions. PW-7 further stated that recovery, search and seizure memo were made in presence of independent witnesses. 11. PW-8 C.R Chauhan posted as Addl. S.H.O has registered FIR on the basis of Rukka. On 6.12.2000 two parcels were handed to him. He has specifically stated that three parcels were handed over to him bearing seal impression ‘X’. The words S-1, S-2 were written on the two samples and word P-1 was written on one sample. Samples were resealed by PW-8 including contraband good. PW-8 issued certificate of re-sealing which is Ex. PW-8/B. 12. PW-9 SHO Achar Pal after receiving the report of chemical examiner prepared challan and filed in the Court. 7 13. PW-10 Chander Sheel in his endeavour to support the prosecution case was examined by the prosecution, however he could not recognize the accused. 14. PW-11 ASI N.S Thakur, Traffic Barrier, Parwanoo in his endeavour to support the prosecution case, has stated that has put his signatures on Inventory list Ex. PW-1/J, as he reached at the spot at about 12.45 p.m. on 6.12.2000 and he was handed over inventory list and NCB form, written by SI Ramesh Chand. 15. PW-12 Ajay Kumar an another independent witness, was stated to have been associated with raiding party and stated to have witnessed seizure memo, however, he has not supported the prosecution case. Accordingly he was declared hostile. 16. On analysis of the statements of the prosecution witnesses and material on record, we notice that in view of testimony of PW-5, NCB form was neither deposited in the Malkhana nor any entry of NCB form was made in Malkhana register. As per the testimony of PW-7 Dy. S.P Madhu Sudan, as well as the members of raiding party made search at about 8.15 p.m. on 5.12.2000, however, PW-5 did not see the inventory list on the spot and as per the testimony of PW-7 the polythene packet, was kept under the jacket of the accused whereas contrary to this as per statement of PW-3. The charas was recovered from the arm-pit of accused kept concealed by him in his jacket. PW-7 was not able to show the exact location of packet from where the charas was recovered from the accused whereas he was a Gazetted Officer of the rank of Dy. S.P present at the spot at the time of recovery. So much so, PW-7 was not able to 8 show that from where the weights and measures were brought. As per the testimony of PW-7 Om Prakash came to PW-7 along with documents PW-1/A indicating that the contraband goods were already measured. PW-7 was also not in a position to show, how the members of raiding party had measured the recovered charas. According to PW-7, Ex. P-2 and P-3 were handed over by him on the spot. PW-7 also stated that he had put his signatures on packet Ex. PW-7/C. As per testimony of PW-7, packet Ex. PW-7/C had not been signed by the IO. Polythene packet P-2 and P-3 were also not signed by the IO. Such contradictory version makes the statement of PW-7 doubtful more so, about the presence of PW-7 at the spot. 17. On analysis of Ex. PW-1/J, it appears that Inventory list was prepared on 5.12.2000 on which at Sr. No. 11 ‘NCB Form’ shown to have been in triplicate was prepared, and independent witnesses had put their signatures on it, whereas on analysis of Ex. PW-1/K it appears that at Sr. No. 2 for ‘NCB Form’ FIR dated 5.12.2000 was mentioned whereas, NCB form was itself prepared on 6.12.2000. In column 7 of ‘NCB form’ (Ex. PW1/K) an overwriting was made showing that NCB was prepared on 5.12.2000 dispatched to CTL, Kandaghat on 7.12.2000, as such date ‘7’(seven) was interpolated . It creates more doubt that when ‘NCB form’ was already stated to have been prepared on the spot on 5.12.2000 (in view of Ex. PW-1/J) then how and under what circumstances it was stated to have been prepared on 6.12.2000 and how the author would know before hand that sample would be dispatched on 7.12.2000. On analysis of Ex. PW1/K, it appears that no ‘facemile’ seal has been put up on ‘NCB 9 Form’. More so, PW-2 has not stated that ‘NCB Form’ was handed over to Malkhana and NCB form was sent to CTL Kandaghat. On analysis of Ex. PW-6/A, it appears that information was given on 5.12.2000 to Superintendent of police is the author who has put his signatures on such information on 6.12.2000, when re-sealing was stated to have been made by seal impression ‘B’, whereas, none of the prosecution witnesses indicated that re-sealing was made with seal impression ‘B’. Ex. PW-8/B also does not indicate that re-sealing on two samples were made with seal ‘A’, Ex. PW-8/B also not indicated that re-sealing was made with seal impression ‘B’ as has been indicated in Ex. PW-6/A. All these contrary aspects indicate that link evidence is missing. As such ‘NCB Form’ was not prepared at the spot and was prepared subsequently in which several discrepancies and interpolations have been made creating doubt in the prosecution case. 18. As has been revealed by Mr. Dinesh Sharma, Advocate that no column No. 4 of ‘NCB Form’ the Contraband good was narrated as of black in colour ,whereas, report of chemical examiner shows that contraband goods recovered were of light brown in colour. But in our considered view, such aspect cannot carry weight in view of observations made by Hon’ble Division Bench of the High Court of Gujrat in Surajmal Kanaiyalal Soni vs. State of Gujrat, 1991, Cr. L.J, 1983 para 9 where it was observed as below: “Mr. Shethna, learned Advocate for the appellant stated that according to the police and the panch-witnesses, 50 gms. opium was taken from each bag for sample, but the chemical analyzer had received 48 grams minute 10 difference of about 2 gms. That will not make any difference and would not be sufficient to hold that the samples must not be the same which were seized from the appellant. It is clear from the report of the Chemical Analyser, Ex. 13, that the sample was received on April 8, 1988 and the seal was intact and was as per the specimen seal. Mr. Shethna submitted that according to the Panch-witnesses the substance attached was black while in the report of the Forensic Science Laboratory, it was stated that it was black-brown. We do not think that describing the sample as black-brown or black would made any difference for the identity of the mud-damal article sent to the Chemical Analyser. The chemical Analyser has stated that one pellet contained 1.06 -%, second pellet contained 2.7% and third pellet contained 2.3% anhydrous morphine.” 19. In view of aforesaid analysis, we are of the considered view that prosecution has failed to prove its case beyond reasonable doubt. There is no scope of interference in the finding given by learned Sessions Judge. 20. The present criminal appeal, being devoid of any merit, is dismissed. 21. The bail bond furnished by the respondent/accused is hereby discharged. (Justice R.B. Misra), Judge. July 19, 2011 (Justice V.K. Sharma) (priti) Judge