1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.570 of 2001 Decided on April 26, 2011 ________________________________________ State of H.P. …Appellant Versus Ajay Kumar …Respondent Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? For the Appellant: Mr. R.K. Sharma, Sr. Addl. AG with Mr. Rajinder Dogra, Addl. AG For the respondent : Mr. Ajay Kumar Dhiman, Advocate R.B. Misra, J (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under section 378 (3) of Code of Criminal procedure in reference to the judgment dated 5.6.2001 passed by learned Sessions Judge, Kangra at Dharamshala in Sessions Case No. 5-N/VII/1999, thereby acquitting the accused/respondent for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short the ‘NDPS’ Act) in reference to FIR No. 100 dated 15.4.1998 of Police Station, Nurpur. 2. The prosecution case, in brief, is that on 15.4.1998 at 4.50 PM, Inspector-SHO Jagan Nath Nirala along with ASI Roop Lal and police constables and witnesses Yudhister and Thuru were present in the investigation of the case, when a 2 secret information was received that Ajay Kumar was selling ‘charas’ at his shop. On receiving such information, the party raided the shop of the accused/respondent and on search recovered 590 grams of ‘charas’, out of which two samples of 20 grams each were taken out and were sealed separately and were sent to the chemical examination. After investigation, accused/respondent was charged for the aforesaid offence. 3. In order to prove its case, prosecution has examined as many as 9 prosecution witnesses, whereas the respondent/accused through his statement under section 313 of Cr.P.C denied the prosecution case. 4. PW-1 Thuru Ram has stated that the accused was running Halwai shop at Gangath and two years ago, police came but the shop of the accused was not raided in his presence. However, PW-1 was declared hostile.. PW-1 has also not supported the prosecution case through his statement made in cross examination. 5. PW-2 Chaman Lal has stated that he had given one shop on rent for Rs. 500/- per month to the accused, who was running Halwai shop since 1993 and one adjoining was also given on rent to PW Thuru Ram. 6. PW-3 SI Roop Lal has stated that he was present at Gangath Chowk on 15.4.1998 at about 4.50 PM along with Inspector SHO Jagan Nath, other police officials and PW-1 Thuru Ram and PW-8 Yudhister. At that time Inspector Jagan Nath received an information that accused Ajay Kumar who runs a Halwai shop at Gangath, also deals in ‘charas’. Thereafter, in the presence of the accused, the search of the shop of the 3 accused was conducted. On search, a polythene bag was recovered, contained ‘charas’ which was found 590 grams on weighment. From the recovered ‘charas’ two samples of 20 grams each were taken out separately and thereafter the samples and remaining ‘charas’ were sealed in three different parcels with seal impression ‘I’ and the seal, after its use, was handed over to Yudhister. The ‘charas’ and samples were taken into possession vide Memo Ex PC. The parcel Ex P1, ‘charas’ Ex P2 and the second part of the sample Ex P3 were identified by the witness as the same. As per the testimony of PW-3, SI Roop Lal, two samples of 20 grams each were taken out separately and thereafter the remaining ‘charas’ were sealed in three different parcels with seal impression ‘I’. The seal was taken back from PW-8 and after its and taking specimen of the seal, seal was again handed over to PW-8. 7. As per the statement of PW-3, made in cross examination, SHO prepared the notice for search, memo of recovery, rukka and grounds of arrest. Thereafter, SHO prepared the site plan and recorded the statement of the witnesses and one special report was prepared which was sent to the Superintendent of Police, which is marked as mark ‘B’. PW-3 has further stated that there is no mention in his statement that NCR form was prepared at that time at the spot. 8. PW-4 LHC Parkash Chand has stated that on 18.4.1998, HC Manmohan Singh handed over to him one sealed parcel of sample of ‘charas’ along with one envelope, which he deposited with the Chemical examination, Kandaghat vide RC No. 66/21 on 20.4.98. PW-4 has further stated that on return, he 4 gave the receipt of MHC. PW-4 has further stated in cross examination that he cannot say if the envelope contained NCR form or not as the same seal was not separately given to him. PW-4 has further stated that so long the case property remained in his possession, nobody including himself tampered with the same. 9. PW-5 HC Manmohan Singh has stated that he received rukka written by Inspector/SHO Jagan Nath through constable Tilak Raj No. 134, on the basis of which he registered FIR Ex PE and he sent the case file to SHO through the same constable. At 8.15 PM on 15.4.98, SHO Jagan Nath deposited with PW-5 three sealed parcels sealed with seal impression ‘I’ along with an envelope containing docket to chemical examiner, NCR form and specimen seal. Accordingly, PW-5 entered the case property in Malkhana register and kept the property in Malkhana in safe custody and on 18.4.1998, PW-5 sent one sealed parcel of sample ‘charas and one envelope addressed to Chemical Examiner, Kandaghat through constable Parkash Chand No. 814 vide RC No. 66/21, who after depositing the same, gave receipt to PW-5 on 20.4.1998. 10. PW-6 HC Vinod Kumar has stated that on 15.4.98, he received the special report at 10 PM in his residence, which he took to the residence of Superintendent of Police, photocopy of which is Ex PG. 11. PW-7 Inspector Suresh Chand has stated that he partly investigated the case and on 20.6.98 he took over the case file from Inspector Jagan Nath and recorded the statements of MHC Manmohan Singh, constable Parkash, HC Vinod Kumar 5 and of Chaman Singh and on receipt of the report of chemical examiner Ex PH, he prepared the challan and presented the same in the court. 12. PW-8 Yudhistar Singh has stated that police came at Gangath in the afternoon. In his presence, shop of the accused was not searched by the police and nothing was recovered in his presence. PW-8 has further deposed that police brought the accused to the police station in his presence and then he was called. However, PW-8 was declared hostile and even did not support the prosecution case in cross examination. 13. PW-9 Inspector Jagan Nath, in his endeavour to support the prosecution case, has stated that on receiving information that the accused Ajay Kumar was dealing with ‘charas’ in his Halwai shop, such aspect was informed to the SSP, Kangra through wireless message Ex PK. Thereafter, he along with PW-8 Yudhister, PW-1 Thuru Ram and other police officials visited the shop of the accused and ‘charas’ was recovered from the accused/respondent and two samples of 20 grams each were taken separately and remaining ‘charas’ was sealed in three separate parcels with seal impression ‘I’.The special report was sent to SSP, Kangra on the same day, copy of which is Ex PG. PW-9 has further deposed that NCR form was filled in on 18.4.1998 which is Ex PP. As per the testimony of PW-9, NCR form was filled by ASI Roop Lal on 18.4.98, whereas, contrary to it, nothing has been emanated from the testimony of PW-3 ASI Roop Lal that NCR form was prepared at that time at the spot. As per testimony of PW-9, he sent the information through wireless and did not fill the NCR form 6 simultaneously on the date of recovery and he did not deposit any NCR form on 15.4.98 with MHC. 14. On analysis of the prosecution witnesses and materials on record, we notice that PW-1 Thuru Ram and PW-8 Yudhister Singh said to be associated as an independent witnesses, were declared hostile and have not supported the prosecution case at all. Nothing is emanating from the record that the NCR form was filled on the spot on 15.4.98 and surprisingly NCR form was said to have been filed up on 18.4.1998 by ASI Roop Singh. It is also not known as to whether the NCR form was prepared at the spot and the date was subsequently put on it as 18.4.1998 or NCR form was prepared on 18.4.98 itself. From 15.4.98 to 18.4.98, samples of ‘charas’ recovered, were kept in Malkhana and thereafter the same was sent to chemical examination on 18.4.98. The NCR form Ex PP does not indicate any impression of facsimile over it. Nothing has been brought on records that why for such along time, the samples were kept in Malkhana and after recovery of contraband good, namely, ‘charas’ on 15.4.98, it was sent belatedly on 18.4.98 to the chemical examination, Kandaghat. PW-4 LHC Parkash Chand, who deposited the sample to Chemical examiner vide RC No. 66/21 on 20.4.98 did not indicate that envelope was containing NCR form or not. Nothing is emanating from the record that wireless message Ex PK was sent to SSP, as SP, Kangra was not examined and no documentary proof was brought by the prosecution to indicate that any such information was received by SSP, Kangra on 15.4.98. As such, the mandatory requirement of provision of section 42(2) of NDPS Act is not complied with. 7 15. The secret information of selling of ‘charas’ by the accused/respondent was necessarily to be brought to the notice of superior officer within 72 hours, which in our respectful consideration, appears to have not been done. In absence of any documentary evidence, the function of the prosecution is doubtful in view of the decisions of Supreme Court in State of Punjab Vs. Balbir Singh (1994) 3 SCC 299 and Union of India Vs. Bal Mukund and others (2009) 12 SCC 161. As per Bal Mukund supra, sub section (2) of Section 42 of NDPS Act provides that an information reduced in writing should be communicated to the immediate superior officer within 72 hours. On this aspect alone, the prosecution case becomes fatal. 16. However, the Constitution Bench of Hon’ble Supreme Court in Karnail Singh Vs. State of Haryana (2009) 8 SCC 539 has held that non compliance of provision of Section 42 of NDPS Act may not vitiate the trial if it does not cause any prejudice to the accused. In view of the analysis made above, nothing is emanated from the record that the NCR form was filled at the spot on 15.4.98 and surprisingly it was filled on 18.4.1998 by ASI Roop Lal. The contraband good, namely, ‘charas’ was recovered on 15.4.1998, however, samples were kept in Malkhana from 15.4.98 to 18.4.98 and thereafter the same was sent to Chemical examination on 20.4.1998. The NCR form also does not indicate any impression of facsimile over it and finally PW-4 LHC Parkash Chand deposited the sample to Chemical Examiner on 20.4.1998, which too also does not contain NCR form. No proof has been brought for sending information to SSP, Kangra. In these circumstances, the recovery on the spot, as 8 asserted by the prosecution, also becomes doubtful and the sanctity of the contraband good recovered also becomes doubtful and in the present facts and circumstances, the accused/respondent could safely be said to have been prejudice by the functioning of prosecution. As such, the accused/respondent is entitled to the protection of judgment of Karnail Singh (supra). 17. On analysis of the prosecution witnesses and material on record, the findings arrived at by learned Sessions Judge, needs no interference. In our considered view, the prosecution has failed to prove its case beyond reasonable doubt. The criminal appeal, being devoid of merit, is accordingly dismissed. 18. The bail bonds, furnished by the accused/respondent, are discharged. ( R.B. Misra), Judge. April 26,2011 (V.K. Sharma) (sl) Judge