Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.189 of 2010 with Cr.Appeal No.188 of 2010. Judgment reserved on: 29.11.2011. Date of Decision: December 6th, 2011. 1. Cr.Appeal No.189 of 2010. Jatinder Kumar ……… Appellant. Versus State of H.P. …. Respondent. For the Appellant : Mr. K.S. Banyal, Advocate. For the Respondent : Mr.P.M. Negi, Dy. Advocate General. 2. Cr. Appeal No.188 of 2010. Dharminder Kumar ……… Appellant. Versus State of H.P. …. Respondent. For the Appellant : Mr. Anoop Chitkara, Advocate. For the Respondent : Mr.P.M. Negi, Dy. Advocate General. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. Surinder Singh, J : The above titled appeals are arising from the same judgment of conviction and sentence passed by the learned trial Court in Sessions Trial No.18-S/7 of 2008 decided on 25.6.2010/ 3.7.2010, hence taken up together for its decision. 2 2. The appellants hereinafter to be referred as ‘the accused persons’ were convicted by the learned trial Court for the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’, for allegedly keeping in their possession 510 grams of Opium, hence sentenced to undergo rigorous imprisonment for a period of 2 ½ years each and also to pay a fine of `25,000/- each with the default clause. The benefit of Section 428 Cr.P.C. was also accorded, hence the challenge is made by means of the present appeals. 3. In short, the prosecution case is that during the intervening night of 25th/ 26th June, 2008, at the place known ‘Tikarghatti’ near village Dhami, District Shimla, PW1 ASI Harjit Singh, Incharge of Police Post Dhami alongwith police constables was on Naqa- bandi in detection of crime in his private Santro Car. (ii) Around 1.30 a.m., they laid a Naqa near Ghurkh Mor. Around 2.30 a.m., they noticed Motorcycle bearing registration No.HP-51A-0268 coming from the opposite side. Police stopped the vehicle by waving a torch. It was being driven by accused Jitender Kumar, whereas 3 accused Dharminder Kumar was a pillion rider. The said Motorcycle was having a blue coloured bag which was tucked on the handle. It was having a print of ‘Dainik Tribune’ in Hindi lying. Its one end was lying on the petrol tank. On checking the bag, police recovered a plastic envelope containing 510 grams Opium, out of which two samples of 25 grams each were separated and sealed with seal impression “D”. Remaining bulk was also sealed with the same seal. Seal impressions were also taken on a piece of cloth. NCB forms in triplicate were filled in. The facsimile of the seal was taken on the NCB forms against the relevant column. Seal after its use was handed over to PW5 C. Jitender Kumar. Case property was taken into possession vide seizure memo Ext.PW1/E. Its copy was given free of cost to the accused persons. (iii) Ruqa Ext.PW1/F was prepared and sent through PW3 C. Ashok Kumar to the Police Station for registration of the case, on the basis of which FIR Ext.PW2/A was registered. 4 (iv) Both the accused persons were arrested and grounds of arrest were informed to them in writing. Police also prepared site plan Ext.PW1/J of the place of alleged recovery. (v) PW1 Harjit Singh reached Police Station, handed over the case property alongwith NCB forms in triplicate and sample of seal and also the seizure memo to PW2 Inspector/ SHO K.D. Sharma. He resealed the case property with seal impression “A”, which is certified by him vide memo Ext.PW2/C. The facsimile of the re-seal was taken against the relevant column of the NCB forms one of which is Ext.PW1/C-1. He handed over the case property back to PW1 ASI Harjit Singh, who deposited it with PW7 MHC Nand Lal. He entered its particulars in the Malkhana register, the abstract of which is Ext.PW7/A. (vi) On 26.6.2008, special report was prepared by ASI Harjit Singh and sent to the officer superior in accordance with law within the statutory period. 5 (vii) PW8 C. Kamal Dev was entrusted with case property for its deposit in the Forensic Science Laboratory, Junga, vide R.C. Ext.PW7/B and after its deposit, he delivered its receipt Ext.PW7/C to the MHC aforesaid on his return. On analysis, the Chemical Examiner prepared a report Ext.PX whereby the sample so sent was found positive for Opium. 4. After recording the statements of the witnesses and completing the challan, it was presented in the Court for the trial of the accused persons. They were accordingly, charge-sheeted, tried and convicted for the said offence as aforesaid, hence the present appeal. 5. Learned counsel for the accused persons vehemently argued that the link evidence in the present case is not complete and the report is not connected with the stuff in question. Further the actual and conscious possession of the alleged contraband is not proved in accordance with law. 6. Contra, Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence. 6 7. I have given my thoughtful consideration to the rival contentions of the parties and have scanned and reappraised the evidence on record, carefully. 8. PW1 ASI Harjit Singh corroborated the case of the prosecution verbatim. He also stated having separated two sample parcels of 25 grams each from the recovered stuff and sealed it separately with seal impression “D”. The remaining bulk was also sealed with the same seal. Its facsimile was also taken on the NCB forms as well as on the separate piece of cloth. It was resealed by PW2 Inspector/ SHO K.D. Sharma. The case property was also identified by him during the trial of the case to be the same and there is also an evidence so to say the statements of PW1 coupled with the statements of PW2 Inspector K.D. Sharma and MHC PW7 Nand Lal that the case property alongwith relevant documents were sent and deposited in the Malkhana and one sample of 25 grams was sent through PW5 C. Jitender Kumar. 9. Importantly, PW1 also testified that sample parcels were marked as S-1 and S-2 and one of the sample parcel was sent for its analysis through PW8 C. 7 Kamal Dev. Now, their statements require consideration. 10. PW7 MHC Nand Lal did not say which mark of sample whether S-1 or S-2 was sent vide RC Ext.PW7/B through PW8 C. Kamal Dev for analysis, nor PW8 aforesaid stated anything about it. Even the Road Certificate Ext.PW7/B does not make any reference to this effect, but pertinently when the sample was received in the Laboratory as per report Ext.PX, it was containing its description mentioned as A-1, weighing 26.116 grams. In the statement of PW1 ASI Harjit Singh, S-1 sample parcel was exhibited as P-1 and S-2 as Ext. P-2 and the bulk as P-3. The contents of Ext.P-3 i.e. bulk parcel were exhibited in the Court, which was sealed with five seals impression of “D” and three of seal “A” and found intact. It did not contain any other seal. It was allowed to be opened in the Court and the alleged Opium was shown to him and it was exhibited and marked as Ext.P6. 11. Further, PWs 3, 4 and 5 also identified the case property Exts.P-1 to Ext.P-6 as the same. Neither PW7 MHC nor PW8 C. Kamal Dev stated that the parcel sent for the examination was received back 8 nor its entry finds mentioned in the Malkhana register on its re-deposit. Parcels Exts.P-1 and P-2 are the sample parcels in this case and there is nothing on record to show that any of these parcels were sent to the Laboratory for its examination and even the parcel, which was examined in the Laboratory was a cloth parcel A-1. Neither it is S-1 nor S-2. Its weight is also different i.e. 26.116 grams. When these sample parcels were exhibited in the Court, none of it contained Mark A-1 as shown to have been received in the laboratory. The Malkhana entry Ext.PW7/A has its own story to tell. The remaining bulk deposited contained 460 grams Opium and it was the parcel which was marked as A-1. There is also no reference with respect to sample parcel having been marked as S-1 and S-2. If A-1 was sent for its analysis as received in the Laboratory, there is a great variance in the weight, which was deposited for analysis, because the weight of A-1 at the time of its deposit in the Malkhana was 460 and not 26.116 grams which was analysed. Therefore, in my considered opinion, the prosecution could not rule out the possibility of tampering the case property and the report of 9 analysis is not at all connected with the recovered stuff. Therefore, the conviction of the accused persons is liable to be set-aside. 12. Further the Motorcycle belongs to accused Jitender Kumar and the pillion rider Dharminder Kumar was with him. When the Motorcycle was stopped, co- accused did not try to flee away, therefore, no animus could also be attributed to Dharminder Kumar. 13. For the aforesaid reasons, the judgment of conviction and sentence is set-aside. Both the appeals are allowed, consequently the accused persons are acquitted by giving them the benefit of reasonable doubt. 14. However, it is noticed that the learned trial Court has ordered to destroy the case property i.e. the Opium which is wrong and illegal, therefore, this order is modified to the extent that the case property i.e. Opium is confiscated to the State and it be disposed of as provided under Rule 60 of the ‘Himachal Pradesh Narcotic Drug & Psychotropic Substance Rules, 1989’ framed under Section 65 of the Act. 10 15. The accused persons are already on bail, thus, their bail bonds are discharged. The fine amount, if any, deposited be refunded to them forthwith. 16. Send down the records. December 6, 2011. (Surinder Singh) (Pds) Judge.