IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 354 of 1999. Date of decision: 5.7.2010 ________________________________________________________ State of H.P. Appellant Versus Keshav Thakur Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting ? No For the appellant: Sh.Vivek Singh Thakur, Additional Advocate General. For the respondent: Sh.Dushyant Dadwal, Advocate _____________________________________________________ Deepak Gupta, J.(Oral). This appeal by the State is directed against the judgment dated 24.3.1999 delivered by the learned Sessions Judge, Kullu in Sessions Trial No.32/97 whereby he acquitted the accused of having committed offences punishable under Sections 18 and 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter, referred to as the ‘Act’). 2. The prosecution case, in brief, is that on 8.11.1996 PW/11 Inspector Kuldeep Chand was on patrolling duty with Head Constable Naresh Chand, Head Constable Lal Chand, Constable Ramesh Chand and 2 Constable Sanjeev Kumar. At about 5.00 p.m when they were crossing from Shanag Bagicha towards Shanag Village, they saw the accused coming from the opposite side. The accused was carrying a trunk in his hand. On seeing the police party, the accused turned back and tried to run away. This aroused the suspicion of the police officials who over-powered the accused. On questioning, he disclosed his name as Keshav Thakur. The trunk was checked. Inside the trunk, one polythene envelope was found. The polythene envelope was seized by the police and on checking, it was found to contain charas in the shape of tablets and sticks. On weighing, the charas was found to be three and half kgs. Inside the trunk, another polythene packet was found which contain opium and on weighing, the opium was found to be 150 grams. Two samples of 25 grams each were drawn from the charas and two samples of 10 grams each were taken out from the opium. The samples and the remaining charas as well as the bulk opium and the samples were sealed in separate parcel, i.e., six parcels in all, (three of opium and three of charas). These parcels were sealed with seal ‘T’. Seal impression was obtained separately also. The NCB form was also prepared at the spot. The recovered 3 charas and opium were taken into possession vide recovery memo Ext.PD. Thereafter, the accused was apprised of the commission of the offence and was arrested vide memo Ext.PE. Ruqua Ex.PA was prepared and sent to Police Station, Kullu for registration of FIR. Site Plan Ext.PF was also prepared at the spot. After completing other formalities, the police party returned to the police station and the case property was deposited with Head Constable, Sita Ram (PW/6) who kept the same with him. Thereafter, he handed over the case property to Head Constable, Surinder Kumar (PW/8). 3. On 1.4.1997 PW/8 Surinder Kumar sent two sealed parcel with NCB form and sample of seal through constable Jitender Kumar, PW/7 to the CSFL, Chandigarh. Thereafter, vide report, Ext.PG, one of the sample was found to contain charas and the second sample was found to be that of opium. On the basis of this evidence, challan was filed against the accused who pleaded not guilty. After trial, the accused has been acquitted by the learned Trial Court. Hence the present appeal by the State. 4. The learned Trial Court while acquitting the accused came to the conclusion that the prosecution has 4 failed to prove that the contraband substances were recovered from the conscious and exclusive possession of the accused. In fact, it has been found that the trunk was found lying in the fields and the defence version that the accused had been wrongly roped in the case was found to be more plausible. 4. The defence was that in fact, the trunk was never recovered from the accused. The trunk was found in the fields and the accused was questioned about the ownership of the trunk and initially he was only associated with the case as an eye witness. However, when the police could not trace out the owner of the trunk, the accused was falsely inducted in the case. In the original documents, FIR, Ruqua as well as the examination-in-chief of PW/11, an impression is given as if the police was only on patrolling duty at village Shanag. However, the statement of the witnesses and the cross examination of PW/11 show that they had gone from the police station first to the taxi stand on foot and there they had hired a taxi upto Nehru Kund. From Nehru Kund, they had gone on foot. The Investigating Officer has conveniently forgotten the number of the van in which he went to Nehru Kund or the name of the driver of the van who 5 drove this van till Nehru kund. According to the defence, the place of occurrence is only about 1 furlong from the Nehru Kund whereas according to the Investigating Officer, the distance of the site to Nehru Kund is about 1 km. The Investigating Officer however admitted that in the site plan, he did not give the distance. The defence version is that no independent witnesses were associated with the case. According to the prosecution, no independent witness was associated with the search since none was available. Lal Chand, H.C, PW/10 stated that he had directed PW/4 Ramesh Chand, constable to find out independent witnesses and that after about 25 minutes, Ramesh Chand returned without any witness. However, PW/4 is totally silent in this aspect and has not stated a word that he was asked to search for independent witnesses. The recovery is stated to have been made from the village at about 5.00 p.m. We fail to understand how no independent witnesses could have been available at that time in the village Shanag itself. Another very important aspect of the case is that after the accused was arrested, he applied for bail in this Court and alongwith the bail application, affidavits of 6 DW/3 Vidya Devi and DW/4 Prem Lal were filed to the effect that on 8.11.1996 they had seen the police officials in the company of the accused and on the asking of Vidya Devi, DW/3 who was the Pradhan of the village, the SHO told her that some person had fled away after leaving the trunk in the fields and the accused Keshav Ram was being taken to the police station being an eye witness. According to these two witnesses, Khem Chand, driver of the van was also present. Khem Chand, driver of the van appeared as DW/2. According to him, his van was hired by the police officials and the police officials first took him to Nehru Kund where they met Keshav Ram, accused who was known to this witness. From Nehru Kund, they went to village Shanag where Keshav Ram, accused went to his house. Thereafter the SHO and 2-3 police officials went down the hill and they hold him that some foreigners were residing there. This witness remained in the vehicle. After sometime, the police came back with the trunk. In the meantime, Keshav Ram also came there and according to this witness, somebody had run away after leaving the trunk. He also stated that they met Vidya Devi on the way. 7 The Investigating Officer admitted that he had come to Shimla to oppose the bail application. He however, stated that he does not know whether Khem Chand, Vidya Devi and Prem Lal had filed any affidavit in the High Court in the bail application filed by the accused. This cannot be believed. It does not stand to reason that an Investigating Officer who comes to the High Court with instructions to oppose the bail application and admittedly instructs the office of the Advocate General in this regard would not care to find out on what ground the bail application has been moved. We are thus clearly of the view that PW/11 knew that such affidavits had been filed. These affidavits could have been true or false. We are not concerned with that at this stage. However, once the Investigating Officer knew that such affidavits had been filed, it was his duty to have examined the persons who had filed the said affidavits because they were necessary witnesses. His failure to do so itself shows that the investigation has not been fair. Another factor which goes against the prosecution is that according to PW/11, he deposited the case property with the MHC Sita Ram (PW/6) who in his statement had stated that he on receipt of the said case 8 property made entry in the Malkhana register and kept the same in the Malkhana. On his transfer, he handed over the charge to MHC Surinder Kumar, PW/8. In the statement in Court, this witness stated that NCB form was also deposited with the case property. He was confronted with his statement under Section 161, Cr.PC where it was not so recorded. PW/8 Surinder Kumar stated that sometime in December, 1996, he took charge as the MHC of the Police Station in question. Thereafter, on 1.4.1997 he sent two sealed parcels with NCB form and sample of seals through constable Jitender Kumar to CFSL, Chandigarh. It is important to note that the prosecution has failed to produce the Malkhana register. The failure to produce the Malkhana register may not be fatal in every case but here we are dealing with a case where no resealing has been done as envisaged under Section 55 of the Act. No doubt, the provisions of Section 55 of the Act are not mandatory but these provisions are healthy provisions and there must be some explanation as to why such procedure has not been followed. Here we are dealing with a case where the provisions of Section 55 were not complied with, Malkhana register has not been produced 9 in Court and the sample was sent for analysis almost six months after the recovery. No doubt, PW/4 stated that on 10.11.1996, two sealed samples were given to him by Head Constable Lal Chand which were to be taken by him to the CTL, Kandaghat and that he deposited the said samples at Kandaght. How could Lal Chand hand over the samples to PW/4 when he had already deposited the case property in the Malkhana. Secondly, when did this case property come back from Kandaghat. There is no material on record in this regard. Therefore, the link evidence is also missing. In view of the above discussion, we find no merit in the appeal which is accordingly rejected. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge July 5, 2009 (Sanjay Karol) (m) Judge