IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) CRIMINAL APPEAL NO.940 OF 2001 (OLD NO.1156 of 1999) Amit Kumar ……… Appellant Versus The State ……… Respondent (2) CRIMINAL APPEAL NO.939 OF 2001 (OLD NO.1138 of 1999) Gazbi ……… Appellant Versus The State ……… Respondent Dated: September 23, 2010 Sri S.K. Aggarwal, Senior Advocate assisted by Sri Rajendra Singh, Advocate for the appellant Amit Kumar (CRLA No.940/01) Km. Vijay Laxmi, learned amicus curiae for the appellant Gazbi (CRLA No.1138/99) Sri TC Aggarwal, Additional G.A. for the State/respondent HON’BLE DHARAM VEER, J. Since the above said appeals have arisen out of a common judgment and order and the controversy to be decided is also common, as such both are being disposed of by this common judgment and order. 2. Both these appeals, preferred by the appellants under Section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as ‘Cr.P.C.’), are directed against the common judgment and order dated 11/12.5.1999 passed by the Additional Sessions Judge [Uttarakhand Cases], Dehradun in Special ST No.10/97, State Vs. Amit Kumar and Special ST No.11/97, State Vs. Gazbi, thereby convicting and sentencing each of the appellant/accused u/s 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the Act’) to undergo rigorous imprisonment for a period of 10 years each along with fine of Rs.1,00,000/- each and in case of default in the payment of fine, the defaulter was directed to undergo further two years’ R.I. 2 3. Heard learned Counsel for the parties and perused the entire material available on record. 4. In brief, the prosecution case is that on 9.12.1996 at about 8:00 P.M., P.W.1 S.I. Sudhir Kumar along with P.W.2 Constable Subhash Singh and other police officials checked the Roadways Bus No.UP15-7085 and on being suspicious, when the appellants/accused were checked, both of them were found carrying bags between their legs in which Charas was there. It was also stated that the appellants-accused were asked to be searched before a Gazetted Officer but they told the police personnel that they had faith on them and they might search them. Thereafter the scales were called and from the search of appellant/accused Amit, 825 grams Charas and on the search of the appellant/accused Gazbi 575 grams of Charas was said to be recovered. The recovered Charas was sealed on the spot and two separate Namoonas, 20 grams each, from the respective contraband were also prepared. Fard of recovery Ex.Ka-1 and Fard of scales and weighing scales Ex.Ka-2 were also prepared on the spot. Along with the recovered article, the appellants-accused were taken to the Police Station, Clement Town, Dehradun where Chik FIR was prepared on the basis of recovery memo on 09.12.1996 at 11:00 P.M. by H.M. Devendra Singh, that Chik FIR is Ex.Ka.11. In the same process entry was also made in the GD, carbon copy whereof is Ex.Ka-12. Investigation of this case was entrusted to PW7 S.I. L.P. Kashyap, who during the course of investigation inspected the place of occurrence and prepared the site plan of the place of occurrence, which is Ex.Ka-15. The recovered Charas was also sent for the chemical examination and the separate reports given by Joint Director, Scientific Laboratory, Agra are Ex.Ka-7 and Ka-8 respectively in respect of the appellants Amit Kumar and Gazbi. During investigation, the I.O. recorded the statements of witnesses and on completion of investigation, he filed the charge sheets against the appellant-accused Gazbi Ex.Ka-16 and against the appellant Amit Kumar Ex.Ka-17 in the court. 5. On 14.5.1997, learned Additional Sessions Judge [Uttarakhand Cases], Dehradun framed the charge for the offence punishable under Section 8/20 of the Act against both the appellants/accused. The charge was read over and explained to each of the appellant/ accused, to which they pleaded not guilty and claimed to be tried. 3 6. To prove its case, the prosecution has examined PW1 S.I. Sudhir Singh, witness of recovery, P.W.2 H.C. Subhash Singh, also witness of recovery, PW3 Dr. OP Taneja, Joint Director, Chemical Laboratory, Agra, who has given the expert report, PW3A Ram Kumar S/o Ram Rich Pal Singh, conductor of Bus, PW4 Constable Satish Kumar, who took the recovered contraband for chemical examination, PW5 H.C. Devendra Singh, who prepared CHIK FIR and made entry in the GD, PW6 Ram Kumar S/o Hari Ram, driver of the Bus and PW7 SI Lal Man Kashyap, IO of the case. 7. Thereafter, the statements of the appellants/ accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them. However, in defence, the appellants/accused did not produce any oral or documentary evidence. 8. After appreciating the evidence and after hearing learned Counsel for the parties, learned Additional Sessions Judge, Dehradun vide judgment and order dated 11/12.5.1999 convicted and sentenced the appellants/accused as discussed above. Against the aforesaid judgment and order, the appellants/accused have preferred the present appeals. 9. PW1 SI Sudhir Kumar and PW2 H.C. Subhash Singh have corroborated the contents of the recovery memo Ex.Ka-1 and their statements are not being reiterated to avoid repetition. 10. PW3 Dr. O.P. Taneja, Joint Director, Chemical Laboratory, Agra who has proved the reports Ex.Ka-7 of Amit Kumar and Ex.Ka-8 of Gazbi prepared by him and has stated that in both the contrabands sent for the chemical examination, CHARAS was found. 11. PW3-A Ram Kumar S/o Ram Rich Pal Singh, conductor and PW6 SI Ram Kumar S/o Hari Ram, driver of the said Bus, have not supported the prosecution case and they were declared hostile. 12. PW4 Constable Satish Kumar who stated that on 18.12.96 he was entrusted with the work of taking the two separate contrabands, relating to this case, at Scientific Laboratory, Agra from the court of CJM, Dehradun. He produced the said articles in the chemical laboratory on 19.12.96 and he also obtained the receipt from the Scientific Laboratory which are Ex.Ka-9 4 and Ka-10 respectively. He also stated that he produced the said articles in the laboratory in the same position in which it was handed over to him and no tampering whatsoever was made with the said articles. 13. PW5 H.C. Devendra Singh who has proved the CHIK FIR prepared by him i.e. Ex.Ka-11 as well as the entry made by him in the G.D. i.e. Ex.Ka-12. 14. PW7 SI Lalman Prasad Kashyap, IO of the case, who has proved the site plan of the place of occurrence prepared by him, i.e. Ex.Ka-15. During the course of investigation, he recorded the statements of the witnesses and after completing the investigation, he filed the charge sheet against the appellant/accused Gazbi Ex.Ka-16 and against the appellant/accused Amit Ex.Ka-17. 15. Thereafter, the statement of the appellants/accused were 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 and stated that they have been falsely been implicated in this case. 16. Sri SK Aggarwal, learned senior counsel for the appellant/accused Amit Kumar as well as Km. Vijay Laxmi, learned amicus curiae for the appellant/accused Gazbi, argued that the prosecution has not proved its case beyond reasonable doubt against the appellants-accused and it was not proved by the prosecution that the recovered item shown from the possession of appellants-accused was the same which was sent for chemical examination in the laboratory and for that even no link evidence was produced by the prosecution. I find substance in the argument put forth on behalf of the appellants/accused due to the following reasons: (i) That it was stated in the recovery memo Ex.Ka.1 that specimen of seal was prepared on the spot, however no specimen of seal was filed by the prosecution in the trial court. (ii) That there is no evidence in the file that when this recovered article, said to be Charas, was deposited in the Maalkhana and when it was taken from the Maalkhana and the same was put up before the competent court from the police station to send it to the laboratory for the chemical examination. 5 (iii) That there is also no evidence that till when the said recovered article remained in the Maalkhana nor any G.D. entry is there. As such it is not proved that it was the same goods which was sent for the expert opinion. (iv) That there is no documentary evidence or the copy of G.D. or any other evidence produced by the prosecution which could prove that who has deposited the said recovered Charas in the Maalkhana and who had taken the same from Maalkhana to the court. (v) That the prosecution has not filed any evidence in the file that the recovered Charas was kept intact in the Maalkhana. It has also not come into evidence that for what period the said article remained in the Maalkhana and during that period, the same remained intact and no tampering had taken place with that. (vi) That the incident took place in a Roadways bus but the police party failed to produce any independent eyewitness. (vii) That even the two witnesses i.e. PW3A Ram Kumar S/o Ram Rich Pal Singh and PW6 Ram Kumar S/o Hari Ram, who are the conductor and the driver of the said Bus respectively, have not supported the prosecution case and they were declared hostile. 17. In support of their arguments, learned senior counsel for the appellants/accused cited a judgment reported in 1999 (38) ACC 181, Shiv Charan Vs. State and relied heavily on para 6 of this judgment, 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 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 6 absence of link evidence, the conviction under the N.D.P.S. cannot be sustained.” 18. He has further placed reliance on the judgment delivered by Hon’ble Apex Court in the case of State of Rajasthan Vs. Gurmail Singh reported in 2005 SCC (Cri) 641. Para 3, 4 and 5 of this judgment are relevant and the same 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 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.” 19. Reliance was further placed on the judgment of Hon’ble Division Bench of this High Court in Mr. Harman Chrust v. State reported in 2005 (1) U.D.-727, wherein at para 25 it has been observed as under:- “25. Another point, which creates suspicion about the authenticity of the prosecution story, is 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 witnesses 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 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.” 7 20. Learned amicus curiae for the appellant/accused has also invited my attention towards 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.” 21. Thus, from the above said discussion of evidence and legal proposition, the prosecution has not proved its case against the appellants/accused beyond reasonable doubt that the article sent for the chemical examination was the same article shown to be recovered from the possession of the appellants/accused on 09.12.1996 at 8:00 P.M. 22. It was next argued for the appellants/accused that though the recovery was made in a roadways bus, but no public witness was shown in the recovery memo. Although it is not necessary that in each and every case public witnesses are required to prove the alleged recovery and it depends on the facts and circumstances of each and every case. But in the present case, as the recovery has shown from the roadways bus where public witnesses were also available, but no effort was made to procure the public witnesses at the time of recovery and even the driver and conductor also did not support the prosecution case and they were declared hostile, which creates doubt in the prosecution story. 23. 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.” 24. In the documentary or the oral evidence it has not come that within the next 48 hours after the said arrest or seizure, the report of the particulars of arrest or seizure was made to the immediate superior officers. Though the compliance of this provision is not mandatory but it is directory. 8 In this regard he has cited the judgment of Gurbax Singh v. State of Haryana reported in (2001) 3 Supreme Court Cases 28 and has relied on para-9 which is reproduced as under:- “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 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...” 25. Thus from the evidence discussed above, the prosecution has also failed to prove the compliance of Section 57 of the Act. 26. In view of my above discussion and conclusion, it is held that the prosecution has failed to prove the case against the appellant/accused for the offence punishable u/s 8/20 of the Act beyond reasonable doubt. As such, the impugned judgment and order dated 11/12.5.1999 passed by the Additional Sessions Judge, Dehradun is not justified and the same is liable to be set aside. 27. Accordingly, both the appeals are allowed. Both the appellants/accused are acquitted of the charge levelled against each of them. The judgment and order dated 11/12.5.1999 passed by the Additional Sessions Judge [Uttarakhand Cases], Dehradun in Special S.T. No.10/97, State v. Amit Kumar and Special ST No.11/97, State Vs. Gazbi, convicting the appellants/accused, as above discussed, is set aside. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. 28. Let the lower court record along with copy of this judgment be sent back. (Dharam Veer, J.) 23.9.2010 Rajeev Dang