IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1665 OF 2001 (OLD NO.1733 OF 1996) Nand Kishor S/o Khayali Ram R/o Purana Khera, Police Station Rudrapur, District Udham Singh Nagar ……… Appellant Versus State of Uttarakhand ……… Respondent Dated: April 5, 2010 Smt. Pushpa Joshi, Advocate for the appellant Sri Amit Bhatt, Additional Government Advocate for the State HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 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 16.9.1996 passed by Second Additional Sessions Judge, Nainital in Special Sessions Trial No.260/1993, State Vs. Nand Kishor, whereby the learned Second Additional Sessions Judge convicted the accused/appellant u/s 15/18 of Narcotics Drugs and Psychotropic Substances Act, 1985, (hereinafter to be referred as the Act) and sentenced him to ten years’ rigorous imprisonment and a fine of Rs.1.00 Lac. In default of payment of fine, two years’ imprisonment was further awarded. 2. Heard learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution case is that on 20.9.1992 S.S.I. B.P.S. Rawat along with S.I. Chandra Pal Pathak and Constable Rukam Pal Singh were on patrolling duty at Rudrapur. When the aforesaid police 2 party were going from Rudrapur By-pass road and reached near Indane Gas Godown then the informant informed them that two persons, having illegal Doda, are coming from the side of Gama Dharmakanta. Relying on this information, they stepped forward towards Gama Dharmakanta then they saw two persons coming near Gas Godown, who on seeing the police turned backward. Then at 11:30 PM the police party apprehended the accused persons. The accused persons were asked to give the search before gazetted officer or Magistrate on which they asked that they can take their search. On being asked, the appellant/accused disclosed his name as Nand Kishore from whose possession about 2 Kilograms of Doda was recovered which he was carrying in a white polythene bag. The appellant/accused was asked for the license which he could not produce. The same quantity of illegal Doda was also recovered from the possession of other co-accused. The said recovered Doda were sealed on the same bags, separately and sample of seal was taken. A FARD thereof was prepared, which is Ext.Ka- 1. On the basis of FARD (Ext.Ka-1), the F.I.R. was lodged at Police Station Rudrapur, District Nainital on 21.9.1992. Chik F.I.R. was prepared by Head Constable Om Prakash. That Chik F.I.R. is Ext.Ka-2. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-3. The investigation of this case was entrusted to S.I. Umesh Chandra Pant (P.W.2), who during the course of investigation prepared the site-plan of the place of occurrence, which is Ext.Ka-4. Report Ext.Ka-6 is the report of chemical examination of the recovered material. During the course of investigation, the I.O. also recorded the statement of the witnesses and after completing the 3 investigation, he submitted the charge sheet against the accused/appellant. That charge sheet is Ext.Ka-5. 4. On 5.8.1995, learned Second Additional Sessions Judge, Nainital framed the charge of offence punishable u/s 15/18 of the Act against the accused/appellant. The charge was read over and explained to the accused/appellant who pleaded not guilty and claimed to be tried. 5. In order to prove its case, the prosecution has examined P.W.1 S.S.I. B.P.S. Rawat and P.W.2 Umesh Chandra Pant, Investigating Officer of the case. 6. Thereafter the statement of the accused/appellant was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him. However, he has not produced any oral or documentary evidence in defence. 7. After appreciating the evidence available on record and hearing learned counsel for the parties, learned Second Addl. Sessions Judge, Nainital vide his judgment and order dated 16.9.1996 convicted and sentenced the accused/appellant as mentioned above. Feeling aggrieved by the said judgment and order dated 16.9.1996, the accused/appellant has preferred this appeal. 8. In order to prove its case, the prosecution has examined P.W.1 B.P.S Rawat, who has reiterated the contents of the FIR. 4 9. P.W.2 is Umesh Chandra Pant, who has stated that on 8.8.1993 the investigation of the case was entrusted to him. During the course of investigation, he recorded the statement of the witnesses and prepared the site-plan Ext.Ka-4 and after completing the investigation, he filed the charge sheet against the appellant/accused, which is Ext.Ka- 5. He further stated that sample of the recovered material was taken and the same was sent for chemical examination in sealed condition. Report of chemical examination is Ext.Ka-6. 10. Thereafter the statement of the accused/appellant was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him. However, he has not produced any oral or documentary evidence in defence. 11. Smt. Pushpa Joshi, learned counsel for the accused/appellant argued that the sample of the so- called recovery material (Doda) was not taken by the police on the spot on 20.9.1992 and there is no link evidence to show that the sample, which lateron was sent by the police for chemical examination at Forensic Lab Agra is the sample of the same article which was shown to be recovered from the possession of the accused/appellant on 20.9.1992. She has submitted that there is no link evidence to prove that the same Doda was kept intact in the Malkhana and that the same was not, at all, tampered with. I find substance in the arguments of the learned counsel for the accused/appellant, due to following reasons:- 5 (i) P.W.2 Umesh Chandra Pant, who is the Investigating Officer of the case, has stated in his deposition that sample of recovered material was taken and the same was sent for chemical examination in sealed condition. But in the recovery memo (Ext.Ka-1) it has nowhere come that the sample for chemical examination was drawn from the recovered Doda and that the same was sealed separately. Only it has come that the recovered material were sealed on the same two bags separately and specimen of seal was taken, which reveals that no separate sample was drawn from the so- called recovered material on the spot in order to send the same for chemical examination. (ii) Further, it transpires from the report Ext.Ka-6 that 25 grams of Doda opium was sent for chemical examination but there is no evidence which can show as to when such quantity of Doda was taken from the so-called recovered material. (iii) No documentary or oral evidence has been produced by the prosecution in order to show where the seized recovered material was kept after it was recovered from the possession of the accused/appellant. It is also not known that who had carried it from the place of recovery to the place of storage. If it is considered that the seized Doda was deposited in the Malkhana then in that event 6 also, it is not known when it was deposited in the Malkhana and when it was taken out from Malkhana to produce before the court below and also to send it for chemical examination. (iv) No evidence is also adduced as to who had carried the Doda in question to the Chemical Examiner. The said Doda is said to have been recovered on 20.9.1992 and from the report Ext.Ka-6 of Chemical Examiner it appears that it was received in the Office of Chemical Examiner by means of letter dated 16.10.1992. No evidence is given to show that the seized Doda remained intact in the sealed bag and nobody tampered with it during the period 20.9.1992 to 16.10.1992. In view of this, it cannot be said that the same Doda was sent to the chemical examiner for his report which was recovered from the possession of the appellant. 12. In support of her arguments, learned counsel for the accused/appellant has cited a judgment reported in 1999 (38) ACC page-181 “Shiv Charan Vs. State” and has relied on para-6, 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 7 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.” 13. She has further cited a judgment “State of Rajasthan Vs. Gurmail Singh” reported in 2005 SCC (Cri) 641 and has relied on Paras-3, 4 and 5, which 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 8 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.” 14. Learned counsel for the accused/appellant has further cited a judgment reported in 2005 (1) U.D.- 727 of Hon’ble the Division Bench of this High Court “Mr. Harman Chrust Vs. State” in which reliance is placed on para-25, which is reproduced hereunder:- “25. Another point, which creates suspicion about the authenticity of the prosecution story, it 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 witness 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 9 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.” 15. Reliance is also placed on 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.” 16. Thus from the above-said discussion and the judgments (supra), the prosecution has not proved its case against the accused/appellant beyond reasonable doubt that the sample sent for the chemical examination was taken from the Doda shown to be recovered on 20.9.1992 from the possession of the 10 accused/appellant. The case of the prosecution is not proved by the link evidence that the said Doda, shown to be recovered from the possession of the appellant/accused on the alleged date i.e. 20.9.1992, was the same Doda which was sent for chemical examination. 17. 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.” 18. In the documentary evidence or in the oral evidence it has not come that after the arrest and seizure within 48 hours next after the said arrest or seizure, the report of the said purpose was made to the immediate superior officers. Though the compliance of this provision is not mandatory but it is directory. In this regard, reliance is placed on the judgment of “Gurbax Singh Vs. State of Haryana” reported in (2001) 3 Supreme Court Cases 28. Para-9 of this judgment is reproduced hereunder:- “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 11 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...” 19. Thus from the evidence discussed above, the prosecution has also failed to prove compliance of Section 57 of the Act. 20. Having given careful submissions made by learned counsel for the appellant and in the light of the evidence and in the background of well-settled proposition of law, it is clear that the prosecution has failed to prove the case against the accused/appellant beyond reasonable doubt. The trial court was in error in brushing aside serious infirmity in the prosecution case. 21. Accordingly, the appeal is allowed. The judgment and order dated 16.9.1996 passed by Second Additional Sessions Judge, Nainital in Special Sessions 12 Trial No.260/1993, State Vs. Nand Kishor, is hereby side aside. Consequently, the conviction and sentence as directed by the court below, which has been discussed above, is also set aside. The appellant is on bail. He need not surrender unless wanted in any other case. 22. A copy of this order shall be sent forthwith to the trial court concerned for compliance of the order. (Dharam Veer, J.) 05.04.2010 RG