IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 183/2000 Date of decision: 24. 2. 2011 State of H.P. …..Appellant Versus Anil Jain ……Respondent Coram: The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General, with Mr. Rajinider Dogra, Addl. Advocate General. For the respondents: Mr. Vinay Thakur & Dilip Sharma, Advocates. Surinder Singh, J. (Oral) Having dissatisfied by the judgment of acquittal passed by the learned trial Court in Sessions case No. 4-S/7 of 1998 on 28.10.1999 for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ‘the Act’ allegedly for transporting and keeping in possession 6 k.g of charas in a vehicle. The State filed the present appeal. 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - 2. Respondent Man Singh died during the pendency of appeal as such appeal stood abated against him, but survives against respondent Anil Jain. 3. Heard and gone through the record of the case. 4. The factual matrix of the case can be stated thus. During the intervening night of 255th/26th December, 1996, PW4 H.C. Ram Dass was Incharge of Police barrier at Boileauganj. He was on routine checking of the vehicles passing through the barrier. Around 11.40 p.m. a Fiat Car bearing registration No. CH-9969 reached there which was stopped for checking. Respondent Anil Jain was on the steering wheel Man Singh was occupying the front seat besides the driver. They offered strong resistance and went to the extent of scuffling with the Police party. Confronted with this situation, HC Ram Dass informed Police Station Boileauganj on V.H.F. set making a request to send some more police officials with some Senior Police officer. On receiving this message, PW6 Additional SHO/ Sub Inspector Parkash Chand accompanied by Constables Mela Ram and Vijay Kumar rushed to the spot in an official vehicle. Even at that time, - 3 - respondents were found sitting in their vehicle. The Police party on duty did not allow them to go. PW 6 aforesaid asked about their identity and directed PW4 HC Ram Dass and constables Ganga Ram and Sanjay Kumar to conduct the search of the car in the presence of PW2 Suresh Kumar and PW3 Susheel Kumar witnesses who were on duty in the adjacent market committee barrier. On checking the car, a bag of fabric was found kept on the seat besides driver. Sub Inspector Parkash Chand took out the bag and recovered a polythene bag which contained charas in small flattened and pellets form. Respondents failed to produce any permit for its possession. Thereafter scale and weight were arranged from the shop of PW5 Baba Deen to weigh the contraband. On weighing, it came out to be 6 k.g. Out of the recovered stuff, two samples of 25 grms each were drawn and packed in two empty Four Square Cigarette cases which were further put into small fabric bag and sealed with impression ‘H’. Remaining bulk was also sealed with same seal. Sample of seal was also stated to have been taken separately on the piece of cloth. (ii) Case property was taken into possession vide memo Ext. PW2/A. A ruka Ext. PW6/B was sent to - 4 - the Police station for registration of the case which culminated into FIR Ext. PW10/A. (iii) A special report was sent to the Additional S.P. PW7 Rakesh Aggarwal from the spot. (iv) The Additional S.P. aforesaid also arrived at the spot and verified the investigation and took further investigation in his hand. The accused and case property was produced before him and a memo Ext. PW3/B was prepared. Both the sample parcels were resealed by him in a small fabric bag with seal impression ‘A’. Seal after its use was handed over to PW Susheel Kumar aforesaid. He also prepared the special report Ext. PW7/B and sent it to the Superintendent of Police concerned and recorded statements of the witnesses. (v). Respondents were arrested and grounds of arrest were informed to them vide memo Ext. PW3/C. The Additional S.P. also prepared the site plan Ext. PW7/A. (vi). As per case of the prosecution, case property was deposited through PW6 Parkash Chand in the Malkhana and one of the sample parcel was sent for C.T.L. Kandaghat. But record reveals that the report Ext. PW7/F was received from the Laboratory Government Opium and Alkaloid Works - 5 - Neemuch (MP) and as per report sample was found by qualitative analysis to be that of charas. 5. After completing the investigation, challan was presented in the Court for the trial of the respondents. Respondents were accordingly charge sheeted for the offence aforesaid to which they pleaded not guilty and claimed trial. 6. To prove its case, prosecution examined its witnesses and respondents were also examined under Section 313 of the Code of Criminal Procedure. Their case was denial simplicitor. However, they pleaded innocence and alleged false implication. 7. When called upon to enter into their defence, no evidence in defence was led. 8. At the end of the trial, respondents were acquitted on the following grounds:- (i) Non-compliance of Sections 42, 50, 52 and 55. (ii) Link evidence was not complete. 9. On the facts stated above, we find that neither it was a case of prior information nor personal search. Therefore, the provisions of Section 42 and 50 of the Act shall not apply in the case in hand. In so far as non-compliance of Section 52 is - 6 - concerned, it is only directory and the respondents have not alleged any prejudice which makes the case of the prosecution doubtful. However, in the instant case, after seizure, the arrest was effected and the grounds of arrest were informed to the respondents, as per memo Ext. PW3/C which was prepared on the spot by the Additional S.P. and it is signed by both the respondents knowing fully well that they were being arrested for the alleged offence. Thus there is no infraction of Section 52 of the Act. 10. In so far as Section 55 of the Act is concerned, PW6 at the relevant time was the Additional S.H.O. of the Police Station who initially investigated the case later Additional S.P. had taken over the investigation. Case property was re-sealed by him as aforesaid but he was not the Officer Incharge of Police Station. There is also no evidence that it was deposited in the Malkhana of the Police Station with the MHC. Though the compliance of Section is directory which ipso facto would not throw away the case of the prosecution but in the instant case it assumes importance, because neither PW7 Additional S.P. Shri Aggarwal nor PW6 S.I. Parkash Chand stated any where as to whom the case - 7 - property after re-sealing was entrusted. There is also no evidence on record to show that the case property was deposited with the MHC in the concerned Police Station. NCB forms which were required to be filled in at the spot were also not prepared. There is also no evidence that the sample of seals used on the samples were also deposited in the Malkhana. Neither MHC was examined nor Malkhana Register was produced. These facts make the case of the prosecution a fishy affair. 10.-A Further, PW7 Additional S.P. stated that charas samples were forwarded to C.T.L. Kandaghat for analysis and this fact has also been reiterated by him in his cross-examination. But we do not find on the examination of the record that any of the samples taken from the recovered stuff were sent to C.T.L. Kandaghat. The mode of sending sample has also not been mentioned. Though the prosecution has made its endeavour to connect the analysis report Ext. PW7/F with the recovered stuff but it failed miserably in its attempt. It is pertinent to note that the recovery of the alleged contraband was effected on 25.12.1996 and the sample is stated to have sent on 15.3.1997 by the Superintendent of Police, Shimla vide his letter No. 8154 as per reference given in the - 8 - analysis report Ext. PW7/F. It is not decipherable from the analysis report aforesaid that whether the sample was received through some police official vide Road Certificate or by post. Sample was stated to have been received in the Laboratory on 18.3.1997. There was delay of about slightly less than three months in sending the sample for analysis to the Laboratory. Reasons therefor have not been spelt out. None of the prosecution witnesses stated that sample parcel was sent to the said Laboratory rather it is stated that the sample parcel was sent to CTL Kandaghat. How and from whom and through which process it was sent to Laboratory in Neemuch (M.P.), remains a mystery. Further the analysis report does not reveal what were the tests conducted in the Laboratory to come to the conclusion that the sample was found by qualitative analysis to be that of charas. There is absolutely no reference that it contained the resin of cannabis plant and the cystolithic hair in order to confirm to the definition of “cannabis” as per Act as held in Sunil and other connected matters versus State Latest HLJ 2010 (HP) 2007 decided by the Division Bench of this Court. 11. For the foregoing reasons, we find that the report of analysis could not be linked with the - 9 - alleged recovered stuff thus, the acquittal of the accused is upheld. The appeal sans merit hence dismissed. Respondent is discharged of his bail bonds entered upon by him at any stage during the proceedings of this case. (R.B Misra), Judge February 24, 2011 (Surinder Singh), (cm) Judge.