1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 726 /2001 Decided on May 24, 2011 State of H.P. …Appellant. VERSUS Baldev Singh ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Addl. AG For the respondent: Mr. Malay Kaushal, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 28.8.2001 passed by learned Sessions Judge, Solan, HP in Cr. Case No. 5-S/7 of 2001, thereby acquitting the respondent / accused for the offence under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 in reference to FIR No. 188/2000 dated 3.12.2000, P.S. Barotiwala, HP. 2. The prosecution case, in brief, is that on 3.12.2000, Vijay Kumar SHO, Police Station Barotiwala received some information about the involvement of accused/respondent in opium trafficking. Whether the reporters of the local papers maybe allowed to see the judgment? 2 Accordingly, he recorded this information in daily diary register as Rapat No.7 Ex PB. One copy of Ex PB was sent to the Dy. S.P. Nalagarh, the superior officer. Police party consisted of ASI Deva Nand (PW-8), Head Constable Harmesh Kumar, Constable Kirpa Ram Constable Sita Ram and Vijay Kumar, SHO proceeded to the spot, where the accused was running his shop. Two independent witnesses, namely, Jaswant Rai (PW-5) and Baldev Ram (PW-6) were associated. Search was conducted and recovery of 90 gms of contraband was made from the pocket of accused after apprising him of his legal right of being searched. Out of the aforesaid opium, two samples of 5 gms each were taken and sealed with impression ‘T’ and were sent for chemical examination. After obtaining chemical examination report, accused was charged for the aforesaid offence. 3. In order to prove its case, prosecution has examined as many as eight prosecution witnesses, whereas, through his statement under Section 313 Cr.P.C accused/ respondent denied the prosecution case. 4. (PW-1) Rakesh Aggarwal received special report Ex PA through courier dak on 4.12.2000 at 10.30 AM. (PW-2) Phool Singh Constable has stated that he was given a sample packet bearing seal impression ‘T’ by MHC Taranjit, PS Barotiwala, which he further handed over to Chemical Test Laboratory, Kandaghat and the receipt of sample given by CTL Kandahat was further handed over to the aforesaid MHC. 5. (PW-3) Constable Jaswant Singh, stated that he on receipt of the Rapat No.7 on 3.12.2000 of daily diary register Ex PB 3 by SHO Vijay Kumar, subsequently handed over to Dy.S.P. at Nalagarh on the same day. 6. (PW-4) HC Taranjit Singh has stated that while working as MHC, received ruka Ex PC, on the basis of which, FIR Ex PD was recorded. On 3.12.2000, SHO Vijay Kumar deposited three packets of case property having seal impression ‘T’. On 4.12.2000 he handed over one parcel to Constable Phool Singh which he further delivered to CTL, Kandaghat with RC No. 69/2000 and the receipt of chemical examination report was also obtained. 7. (PW-5) Jaswant Rai and (PW-6) Baldev Ram were associated as independent witnesses as a member of raiding party and in whose presence the search of accused/respondent was made and recovery of contraband goods was alleged to have been made. However, PW-5 and PW-6 have not supported the prosecution case at all and were declared hostile. 8. (PW-7) SI/SHO Vijay Kumar has stated that on 3.12.2000, after receiving information aginst the accused with regard to his involvement in opium trafficking, constituted a raiding party consisting of ASI Deva Nand (PW-8), Head Constable Harmesh Kumar, Constable Kirpa Ram Constable Sita Ram and proceeded to the spot and made a personal search. The accused was asked about his right to be searched either by PW-7 or in the presence of a Magistrate of Gazetted Officer and on obtaining his consent, on personal search, 90 gms of opium was recovered, out of which two samples of 5 gms each were extracted separately and sealed with 4 seal impression ‘T’ and the samples were handed over to Jaswant Rai vide Ex PM and were sent for chemical examination. 9. (PW-8) ASI Deva Nand, accompanying SHO Vijay Kumar has recorded the statements of the prosecution witnesses. 10. On analysis of the prosecution witnesses and materials on record, we notice that nothing is emanating from the testimony of prosecution witnesses that when and where the ‘NCB’ form was filled up. Ex PQ reveal that no facsimile seal was put up on it. FIR No. 188/2000 dated 3.12.2000 was mentioned in one stretch on NCB form, which also creates doubt that if ‘NCB’ form was prepared at the spot, then how at that time the FIR was available with the Investigating agency and that could not have been mentioned in one go with the same ink. In absence of facsimile seal, also the doubt is created. Nothing is emanating from the testimony of prosecution witnesses that what happened to the remaining part of contraband goods, whether the remaining part was sealed with seal impression ‘T’ which was put on two samples with seal impression ‘T’. Nothing is also emanating from the testimony of prosecution witnesses that when and to whom the samples with remaining part of contraband goods were handed over and when it was kept in Malkhana and when it was sent to CTL, Kandaghat. 11. In view of the testimony of PW-7 Vijay Kumar, nothing is emanating that whether the ‘NCB’ form as filled up at the spot and subsequently elsewhere. In the absence of facsimile seal on the chemical report, it is difficult to tally with the earlier seal impression ‘T’ which was put on two samples. In these 5 circumstances, the link evidence is apparently missing whereby the doubt is created regarding the test report indicated in respect of the sample sealed by the raiding party on 3.12.2000. 12. On analysis of the prosecution witnesses, materials on record and in view of the fact that two independent witnesses have not supported the prosecution case and in view of the fact that the link evidence is missing, the prosecution case becomes doubtful. We find no scope for interference in the impugned judgment of the trial court. The criminal appeal, being devoid of merit, is accordingly dismissed. 13. Bail bonds, furnished by the accused/respondent, are hereby discharged. ( R.B.Misra ), J. 24th May, 2011 (V.K. Sharma ), J. (sl)