IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.430 of 1998. Date of decision: 3.8.2010 State of H.P ..Appellant Versus Deepak Sharma & anr. ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting ? Yes For the appellant: Shri Vivek Singh Thakur, Additional Advocate General with Sh.Rajesh Mandhotra, Dy.A.G. For the respondents: Mr.Rajnish Maniktala, Advocate. _____________________________________________________ Deepak Gupta, J, (Oral). This appeal by the State is directed against the judgement dated 30.7.1998 delivered by the learned Sessions Judge, Kullu in Sessions Trial No.16/1997 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic 2 Drugs and Psychotropic Substances Act, 1985 (hereinafter, referred to as the ‘Act’). 2. The prosecution story, in brief, is that on 10.11.1996 PW/11 Jagdish Chand, SHO, Police Station, Banjar alongwith PW/2 Lal Singh, Constable and two other officials was on patrolling duty. He received secret information that two persons are coming on a scooter bearing no registration number. According to the informant, these two persons were carrying Charas with them. Jagdish Chand, PW/11 made a report in the Rapat Rojnamcha (Ext.PE) and thereafter, formed a raiding party consisting of himself, Sunder Singh, Head Constable, Lal Singh, Constable and Neel Chand, Constable. Two independent witnesses namely Dharam Chand, PW/6 and Ses Ram, PW/7 were associated with the raiding party. 3. About half a kilometer ahead of Khundan curve, one scooter came from Batahar side on which two persons were sitting. The same was stopped by PW/11. These two persons were asked to give their identity. They were also given an option of being searched either by the police officials or before a Gazetted Officer or a 3 Magistrate. The accused persons opted to be searched before the police. Thereafter, the police officials offered their search to the accused and thereafter, searched the accused. During this search, a bag was recovered which was kept on the scooter. Inside this bag, there were four polythene packets. On search of these polythene packets, charas was found. The said charas was weighed and was found to weigh 7 kgs. Two samples of 25 grams each were drawn out of the bulk charas and thereafter, the two samples and the bulk charas were sealed in three separate parcels and sealed with seal impression ‘T’. The Investigating Officer completed other codal formalities at the spot. The special report was sent to the police officials. Site plan, Ext.PN was prepared. Thereafter, Ruka (Ext.PD) was prepared and sent to Police Station, Kullu on the basis of which FIR was registered. The accused were apprised of the grounds of the arrest. 4. After returning to the Police Station, the Investigating Officer, PW/11 deposited the case property with PW/4 Baldev Singh who was working as M.H.C at 4 Police Station, Banjar at the relevant time. Thereafter, one sample of charas was sent to the Chemical Examiner, C.T.L, Kandaghat for examination. According to the prosecution, no report was received. Then another sample was sent to the CFSL, Chandigah and it was opined vide report Ext.PR that the sample was of charas. On this basis, challan was filed against the accused and the accused were charged with having committed an offence punishable under Section 20 of the Act. The accused pleaded not guilty and claimed trial. After trial, the accused were acquitted. Hence the present appeal by the State. 5. The learned Trial Court acquitted the accused on the three grounds namely non-compliance of Section 42 of the Act; non-compliance of Section 50 of the Act and non-preparation of the NCB form by the SHO and the link evidence being missing to connect the report Ext.PR with the substance which was confiscated on the spot. 6. As far as Section 42 and 50 of the Act are concerned, the provisions of these Sections are not applicable to the facts of the present case. Since this 5 recovery was made in a public place, the provisions of Section 42 of the Act are not applicable and it is Section 43 which would apply. 7. As far as the provisions of Section 50 of the Act are concerned, the same would also not be attracted since the recovery was made from a bag which was carried by both the accused on the scooter. The recovery was not made consequent to a personal search and, therefore, the provisions of Section 50 of the Act have also been wrongly invoked. 8. Even the non-preparation of NCB form by itself may not be fatal to the prosecution. The Act and the Rules framed thereunder do not lay down any statutory provision for preparation of a NCB form. This is a practice being followed consequent to the executive instructions issued by the Narcotic Control Bureau. Non-compliance of such instructions cannot be fatal to the prosecution case. However, there must be some written material on record to show as to how the sample was taken into possession by the Investigating Officer, kept in such a manner that the case property could not be tampered 6 with and then sent to the Laboratory concerned with a proper covering letter. It is the duty of the prosecution to link the report of the Chemical Analyst with the recovered substance. The onus is heavily on the prosecution to show that the report of the Chemical Analyst relates to the recovered substance. The prosecution must link the recovery to the report in such a manner that the only conclusion that can be drawn is that the report relates to the sample which was drawn at the spot out of the bulk confiscated substance. If such link evidence is missing then the benefit has to go to the accused. 9. In the present case, the Investigating Officer, PW/11 stated that on 10.11.1996 itself, he deposited the case property with PW/4 who was the Incharge of the Malkhana of Police Station, Banjar. PW/4 while appearing in the witness box stated that on 10.11.1996, the SHO (PW/11) deposited the case property and samples sealed with seal ‘T’. According to this witness, the same were entered in the register and kept in the Malkhana by him. The Malkhana register has not been produced. This witness further stated that one sample sealed with seal ‘T’ 7 was sent to CTL, Kandaghat but no report was received and thereafter, the second sample was sent on 26.3.1997 through Constable Lal Singh vide R.C No.9/97 to CFSL, Chandigarh. 10. It was for the prosecution to explain what happened to the first sample. No evidence has been led to show, who carried the first sample to CTL, Kandaghat? No evidence has been led to show what was the reason why the CTL, Kandaghat did not give its report? In case the police sends a sample to any testing laboratory and it does not receive any report, it is expected that the Investigating Officer would send a reminder to the testing laboratory to send its report. If the reminder also fails to evoke a response then the Investigating Officer should depute some official to go to the testing laboratory to find out why the report has not been made. Merely stating that no report was received from the CTL, Kangadhat is not sufficient to discharge the burden which lies on the prosecution. Why were no efforts made by the prosecution to find out why the CTL Kandaghat did not issue any report? It would not be unreasonable to 8 presume that the report, if any, issued by the CTL, Kandaghat may have been in favour of the accused and, therefore, the second sample was sent to CFSL, Chandigarh. Be that as it may the fact remains that in the present case, there is nothing on record to show as to what happened to the first sample which was sent to the CTL, Kandaghat. 11. As far as the second sample is concerned, the same was sent more than four months after the recovery on 26.3.1997. Even while deposing about the first sample, nothing has been stated about the Road Certificate (RC) vide which the sample was sent. In every case, production of the Malkhana register and the RC may not be called for and the prosecution case may not be found to be false only on account of non-production of such record but where, as in the present case, there is no explanation as to what happened to the first sample and why no report on the same was received, it was essential for the prosecution to have produced the record. Further in the present case since NCB form had not been prepared containing facsimile of the seal, it was for the 9 prosecution to have led evidence to show that the sample seal impression was sent alongwith the sample and also the covering letter/docket which was sent with the sample. In the present case, neither PW/4 nor PW/2 who carried the second sample to CFSL, Chandigarh even whispered a word that they carried any sample seal impression or facsimile of the seal alongwith the sample. Therefore, we fail to understand how the expert could have compared the seal on the sample with any sample seal impression(s). 12. In view of the above discussion, we find that the link evidence is totally missing and, therefore, the learned Trial Court was fully justified in acquitting the accused. We find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge 3rd August, 2010 (Sanjay Karol) (m) Judge 10