IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 241 of 1998 Date of Decision : July 12, 2010 State of H.P. …Appellant. Versus: Krishan Gopal …Respondent-accused. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Rajesh Mandhotra, Dy. A.G. For the respondent : Mr. Ajay Sharma, Advocate Deepak Gupta, J. (Oral). This appeal by the State is directed against the judgment dated 3.3.1998 delivered by the learned Sessions Judge, Una, in Sessions Trial No. 3 of 1998, whereby he acquitted the accused of having committed offences punishable under Sections 18 & 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act’). 2. The prosecution story in brief is that on 28.8.1997 PW-8 Bimal Gupta, who was then Dy.S.P. at Una had gone for patrolling duty along with other police officials including PW-2 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 Hoshiar Singh and PW-3 Constable Vijay Kumar to village Basdehra. At about 2.45 p.m. he received secret information that the accused is engaged in the sale of contraband at his shop/vend at Mehatpur. This information was reduced into writing vide memo Ext.PE and sent to the Police Station, Una for registration of the case. This information was also sent to the Superintendent of Police, Una vide memo Ext.PD. Two independent persons Kewal Krishan (PW-1) and Karam Chand (not examined) were associated with the investigation. The raiding party reached the shop of the accused and after giving introduction the search of the shop/vend of the accused was conducted. Two packets Ext.P-1 & Ext.P-2 were recovered in the lower portion of the counter. The contents of those packets were weighed and one packet Ext.P-1 was found to contain charas weighing 1 kg. whereas 360 gms. of opium was recovered from the second packet. Two samples of 25 gms. each were drawn from each of the bulk packet of opium and charas. Thereafter, six packets i.e. two samples of opium, two samples of charas, one bulk packet of charas and one bulk packet of opium were sealed with seal bearing ‘HS’ and taken into possession vide memo Ext.PA. Thereafter, the Investigating Officer (PW-8) completed other codal formalities on the spot. Case property was deposited with the MHC Police Station, Una and thereafter one sample each of the two contraband items was sent to Chemical Laboratory, Neemuch. Report Ext.PK was 3 received from the Laboratory. The Chemical Analyst found that one sample was of charas and one of opium. On the basis of this material the accused was challaned and charged with having committed the aforesaid offences. The accused was acquitted after trial. Hence, the present appeal. 3. The learned trial Court acquitted the accused mainly on the ground that there has been non-compliance of Sections 42 & 55 of the Act. In our view, there is no violation of Section 42 because all that the investigation was required to do was to record the information in writing and send it to immediate superior which admittedly was done. The other ground on which the accused has been acquitted is non-compliance of Section 55. The law is well settled that non-compliance of Section 55 by itself is not fatal to the case of the prosecution. The provisions of Section 55 have been held to be directory and not mandatory. However, the prosecution must show why the provisions of Section 55 were not complied with. 4. In the present case there is one glaring lacuna in the prosecution and the link evidence is totally missing. The prosecution has failed to link the report Ext.PK with the samples recovered at the spot. According to PW-8 he deposited the case property with the MHC Police Station, Una. When it was so deposited has not been clearly stated. There is nothing on record to show as to on which date the case property was actually deposited with the MHC Police Station, Una. The MHC has not 4 been produced. The Malkhana register has also not been produced. 5. The next evidence to connect the case property with the report is the statement of PW-9 Gopal Dass who states that on 11.9.1997 he carried one sample of charas and one of opium pertaining to the case to Chemical Examiner, Laboratory, Neemuch vide Road Certificate No. 402/96. He did not produce the Road Certificate in Court. He did not say a word as to whether he carried with him any seal impression etc. The prosecution has miserably failed to prove where the case property was lying from 28.8.1997 to 11.9.1997. There is no material on record to show that this property was not tampered with during this period. 6. Section 55 of the Act provides that when the case property is deposited by the Investigating Officer in the Police Station, the person in-charge of the Police Station should again affix his seal on the case property. This is to prevent the case property from being tampered with by the Investigating Officer himself. Admittedly PW-8 being Dy.SP was not the person in- charge of the Police Station. It was incumbent upon the prosecution to have proved that from the date of seizure till the time the samples were handed over to the Laboratory they remained in the same condition and there was no possibility of the same being tampered with. The prosecution has miserably failed to prove the same. According to the Chemical Analyst, the 5 seals on the samples tallied with the facsimile of the seals forwarded. PW-9 has not spoken a word that he carried any seal impression. Similarly PW-7 does not say that he sent any seal impression. In fact PW-8, the Investigating Officer has not stated anything about taking any seal impression either on a cloth or on any piece of paper. Therefore, where did this seal impression materialise from? 7. In view of the above discussion, the prosecution has miserably failed to link the samples/report. The appeal is accordingly dismissed. The bail bonds are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. July 12, 2010. (rana)