IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 12 of 1997 Decided on June 25, 2010 ________________________________________ State of H.P. …Appellant Versus Balkar Singh & Anr. …Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? Yes/No For the Petitioner: Mr. Rajinder Dogra, Additional Advocate General, with Mr. Anil Jaswal, Deputy Advocate General. For respondent No.1 : Mr. Lovneesh Kanwar, Advocate. For respondent No.2: Mr. Sandeep Chauhan, vice counsel. Justice R.B. Misra,J. 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 8.3.1996 passed by the Learned Sessions Judge, Sirmour, District at Nahan, H.P. in Sessions trial No. 48-N/7 of 1995, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short called as ND&PS ‘Act’), acquitting the alleged accused/respondents. 2. In order to adjudicate the present appeal, it is necessary to give the factual background of the case, that on 28.3.1994, SI Chatter Singh, alongwith other Constables was on patrol duty at Katcha Tank, Nahan at about 8.00. p.m. when he received a secret information that accused Balkar Singh was carrying poppy husk in bus No.HP.24-4523 of Bilaspur Depot. Therefore, a raiding party, comprising of Amar Singh and Surinder Kumar, had formed and went to the Bus-Stand, at Nahan, and noticed the above bus was at bus- 2 stand, where Sub Inspector also spotted accused Balkar Singh sitting on seat No. 36 of the bus with a bag in his hand. After giving his identity, Sub Inspector took the bag from Balkar Singh, and on search, found poppy straw husk weighing 350 grams in it. After taking a sample of 50 grams, the sample and the remaining poppy straw husk were sealed in separate packets with seal ‘K’ and taken into possession in presence of the witnesses. A copy of recovery Memo had also supplied to the accused and the accused had arrested. Accordingly, special report was sent to the Deputy Superintendent of Police and the case property was deposited with Police Station Nahan, and a case for offence under Section 15 of the ND&PS Act was registered against the accused. 3. It is also the case of the prosecution, that after forming a raiding party, house search of accused Jagdish Chand was conducted on 30.3.1993, in accordance with law, and recovered 7.850 Kgs of poppy straw husk from his possession. The sample was also taken out of it and then the sample and the remaining poppy straw husk was sealed in separate packets and were sent to the Chemical Examiner and on receipt of the opinion, the samples were found of poppy straw, both the accused were charged for the offence under Section 15 of the ND &PS Act. 4. In order to prove its case, the prosecution examined as many as seven prosecution witnesses. Whereas, the accused / respondents in their statements under Section 313 of Cr.P.C. have denied the prosecution case. 5. On scrutiny of the prosecution witnesses, we notice that PW.1 Head Constable Phul Singh, who had allegedly proved the special report Ex.PA, received in the office of S.P. Nahan, on 3 29.3.1993. PW.2 ASI Abdul Rasheed was Muharar Head Constable at Police Station, Nahan. He had stated that on 28.3.1993, Constable Jaswant Singh had deposited the case property and the sample duly sealed with seal ‘K’, which he further sent to the Chemical Examiner through Constable Tikka Ram on 29.3.1993. PW.3 Surinder Kumar, the alleged eye witness, in whose presence poppy straw husk was recovered from accused Balkar Singh on 28.3.1993 at 8.00 p.m., but he has denied that anything incriminating was recovered from the accused in is presence. 6. PW.4 Constable Jaswant Singh, has stated that on 28.3.1993, when he alongwith SI Chatter Singh was on patrol duty, near Katcha Tank, Nahan, at about 8.40 p.m., SI Chattar Singh received a secret information about accused Balkar Singh possessing contraband items. Therefore, a raiding party was formed and came to the bus-stand, where the accused Balkar Singh was found sitting in seat No. 36 in bus No.HP.24-4523 of Bilaspur Depot. The accused was carrying a bag in his hand. Therefore, SI Chattar Singh had asked accused Balkar Singh about his no objection in giving him his personal search, and on his raising no objection, Sub Inspector search the bag and found 350 grams poppy husk straw, out of which a sample of 50 gram was separated and then both the samples and the remaining contraband items were sealed in separate packets and taken into possession vide recovery Memo. Ex.PD. He has further stated that the copy of recovery Memo was duly supplied to the accused. In the cross-examination, he has admitted that when ASI had received the secret information about the accused possessing the contraband items, the night had fallen and the lights were on. He has also stated that the raiding party was formed at a distance of 50-60 4 feet from the bus stand. He has denied that the raiding party was not formed or the contraband was not recovered from the accused. PW.5 Constable Tikka Ram tendered his affidavit Ex.PE in evidence. 7. PW.6 Dr. B.R. Rawat, Scientific Officer, Forensic Science Laboratory, Shimla, had examined the samples sealed with seal ‘T’ and opined that it contained poppy straw. He had given a report Ex.PF. In cross-examination, he has admitted that the sample did not contain any part of opium. He has also admitted that though the particles of morphine up to 1000 parts of one milligram can be detected in the laboratory, but the same was not found in the sample nor there was any maconic acid found in it. He has further admitted that he had opined the contents of the sample as poppy straw only from physical appearance. Though, he has stated that he came to the conclusion because the material contained poppy seeds, but has admitted that he had not mentioned this fact in his report Ex.PF. He has also admitted that in the absence of the poppy seeds, he could not say that the sample was of poppy straw. 8. On analysis of the prosecution witnesses, it appears that the contraband item was, recovered from the personal search of the accused Balkar Singh, on 28.3.1993, at 8.40 p.m., at Bus-Stand, Nahan. Whereas, recovery of the contraband item was effected from accused Jagdish on 30.3.1993 from search of his house in village Taruwala. Whereas, SI Chatter Singh he has conducted the raid at the house of accused Jagdish after receiving the information from accused Balkar Singh, but there is no evidence on record, to that aspect. It also appears that recovery of contraband from both the accused had been made independently on different places and 5 different dates and the recovery cannot be said to be made in same transaction. 9. As per prosecution story, SI Chattar Singh had received the secret information about accused Balkar Singh in possession of contraband item and SI Chattar Singh also got information about accused Jagdish Chand dealing in contraband items also. As such, SI Chatter Singh PW.7 had the prior information about both the accused dealing in contraband items business. However, PW.7 neither reduced nor has sent such information to such dereliction in duty and lapse not informing to his superior officer is in contravention of Section 42 of the ND &PS Act, as found to be mandatory by the learned Trial Court. From the testimony of PW.7 it reveals that before conducting the personal search of accused Balkar Singh, he had offered him that he could be searched before the Magistrate or a Gazetted Officer, if he so desired, but Constable Jaswant Singh (PW.4) has stated that SI Chatter Singh had only asked accused Balkar Singh, that he had no objection of his personal search. Though, PW.1 has proved that the special report Ex.PA was received on 29.3.1993, in the office of S.P. Nahan. It becomes clear that the said special report was regarding recovery of contraband item, from accused Balkar Singh, on 28.3.1993. However, there is no mention in the special report, that it was sent to the superior officer regarding recovery of contraband item and arrest of accused Jagdish on 30.3.1993. Therefore, there is non compliance of Section 57 of the ND&PS Act, though, the provision of Section 57 of the ND&PS is directory. 10. From the testimony of PW.2 ASI Abdul Rasheed, it appears that Constable Jaswant Singh had deposited the case 6 property with him on 28.3.1993, which was sealed with seal ‘K’. But PW.4 has no where stated if he had deposited the case property with ASI Abdul Rasheed. Therefore, it remained mystery as to how the case property had sealed with seal ‘K” and deposited with Abdul Rasheed on 28.31993. It is also worth noticed that there is no evidence on record, that if any case property was ever deposited with the Police Station after 30.3.1993 and were sent to Forensic Science Laboratory. 11. PW.6 Dr. B.R. Rawat, Forensic Officer, though had stated that he had sent a report Ex.PF but again he has stated that the samples were sealed with seal ‘T’. Whereas, samples allegedly deposited with Abdul Rasheed were sealed with seal ‘K’. Such aspect, clearly indicated that non of the samples of the contraband allegedly recovered from any of the accused, were sent to the Forensic Science Laboratory, neither the opinion was obtained nor any test report was obtained, which could indicate that the contraband item alleged to have been recovered was opium or poppy husk straw. 12. As per testimony of PW.6 Dr. B.R. Rawat, the contraband goods recovered, did not contain any particle of opium, morphine or meconic acid. Therefore, opinion of PW.6 Dr. B.R. Rawat that samples as poppy straw only from physical appearance cannot be substantial and convincing evidence to say that the accused were in possession of contraband articles. More so, when PW.6 has stated in cross-examination that he cannot say that the contraband item recovered from the accused was poppy straw. Therefore, the report of the Chemical Examiner also does not prove that the samples were of poppy straw. 7 13. From the analysis of the prosecution witnesses, we find that most material witnesses PW.6 Dr. B.R Rawat, PW.2 ASI Abdul Rasheed and PW.4 constable Jaswant Singh have given the contradictory statements and apparent discrepancies go to the root of the case and makes prosecution case fatal. Thus, the prosecution has failed to prove that the goods said to have been recovered as contraband articles, were properly sealed and were properly sent for the chemical examination as well as a report derived from there that it was same material which was recovered and taken into possession and the material which contained particulars of opium, morphine or meconic acid and was poppy straw husk. 14. On scrutiny of the prosecution witnesses and material on record, learned Sessions Judge has rightly arrived at the findings that the prosecution had failed to prove its case beyond all reasonable doubts and to bring home the guilt to the accused as to prove the offence under Section 15 of the ND&PS ACt. In our considered view, there is no scope of interference in the findings given by learned Additional Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal being devoid of any merit is dismissed. (Justice R.B. Misra), Judge. June 25, 2010 (Justice V.K. Sharma) (Purohit) Judge