HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 53 of 2004 Nazar Singh ……Appellant Versus State of Uttarakhand …… Respondent With Criminal Appeal No. 37 of 2004 Kernail Singh ……Appellant Versus State of Uttarakhand …… Respondent Mrs. Pushpa Joshi, Advocate for the appellant. Mr. Amit Bhatt, Addl. G.A. for respondent/State. JUDGMENT Hon’ble J.C.S. Rawat, J. Since both the appeals have arisen out of the common judgment and order dated 19.12.2003 passed by the learned Additional Sessions Judge/II F.T.C., Udham Singh Nagar in S.T. No. 86 of 2003 & 87 of 2003, therefore, both the appeals are being disposed of together by this common judgment. These appeals have been preferred by the accused/appellants against the aforementioned judgment and order whereby the accused/appellants have been convicted and sentenced to undergo rigorous imprisonment for ten years u/s 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as Act, 1985) and a fine of Rs.1,00,000/-. In default of payment of fine, the accused/appellants would further undergo one year R.I. 2. Brief facts as emerged from the record are that on 21/06/2003, S.S.I. D.L. Verma alongwith S.I. R.A. Singh and other police officials were in search of the accused involved in Case Crime No. 128/02 u/s 395/397 I.P.C. and Case Crime No.263/02 u/s 396/120-B I.P.C. When the police patrolling party reached at Chikhaghat Bridge, they saw that two persons 2 were coming from the side of Sisaikhera having bags in their hands. When they saw the police party, they started to run back. The police party had reason to believe on seeing them in suspicious condition. The police apprehended them at about 9:15 a.m. on 21/06/2003 near the Chikhaghat Bridge. When they were interrogated as to why they were running after seeing the police party, both of them stated that they are having the charas in their possession. They were informed about their right of being searched before the Magistrate or the Gazetted Officer. The accused/appellants stated S.S.I. D.L. Verma that their search need not be made in presence of any Magistrate or Gazetted officer and the police patrolling party could very well make their search. When the search of the bag of the accused/appellant Kernail Singh was made, 3 kgs. Charas was found in his bag whereas from the bag of the accused/appellant Nazar Singh 3 kgs. charas was found. The accused/appellants could not show any licence to the police party for keeping the said contraband. A sample of 200 grams of charas from each recovered articles was taken by the police for being sent it to Chemical Examiner, Agra. The rest of the charas so recovered from the possession of the accused/ appellants was sealed at the spot and recovery memo thereof was prepared at the spot. The accused/appellants were apprehended and thereafter they were taken to the police station and case was registered against them. The recovered article for the accused/appellants was given to the Moharrir of the police station. The information of the arrest of the accused/appellants was sent to the higher officials. The matter was investigated by the Investigating Officer and separate chargesheets were submitted to that effect against the accused/appellants. 3 3. After submission of chargesheets, the accused/appellants were charged u/s 18/20/22 of Act, 1985. The accused/ appellants denied the charges levelled against them and claimed their trial. 4. The prosecution in support of its case examined as many as four witnesses. D.L. Verma PW1 is the S.S.I. posted at police station Sitarganj, Udham Singh Nagar. On the date of the arrest of the accused/appellants, he alongwith other police officials was in search of the accused persons in case Crime No.128 of 2002 u/s 395/397 I.P.C. R.A. Singh PW2 is the witness of the arrest and seizer. S.I. M.P. Singh PW3 is the Investigating Officer of this case. Constable Santram Singh PW4 is the formal witness. 5. The accused-appellants were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offence. The accused/appellants further stated that the witnesses were telling lie and they have been falsely implicated in this case. The accused/appellants had not given any evidence in their defence. 6. The learned Special Judge/Sessions Judge, after appreciation of the evidence and hearing the parties convicted the accused/appellants and sentenced them as indicated above. 7. I have heard Mrs. Pushpa Joshi, Advocate for the accused/appellants; Mr. Amit Bhatt, Addl. G.A. for respondent/ State; and perused the record. 8. Now, it is to be decided as to whether the prosecution has established by credible and cogent evidence that the 4 accused/appellants were having the charas as alleged by the prosecution in their possession at the time and place of their arrest. The prosecution in support of its case examined S.S.I. D.L. Verma PW1 who has stated in his evidence that he alongwith other police officials was in search of the accused persons in case Crime No.128 of 2002 u/s 395/397 I.P.C. When they reached near Chikhaghat Bridge, they saw two persons coming from the side of Sisaikhera having bags in their hands. When they saw the police party, they started to run towards the opposite side. The police patrolling party immediately apprehended them. The accused/appellants admitted to the police party that they were having charas in their bags which they were holding in their hands. The police informed them about their right to be searched before a Magistrate or Gazetted officer. The accused/appellants stated them that they did not want to be produced for search before Magistrate or Gazetted Officer. The accused/appellants stated that their search could be taken by them. He prepared the consent letter in his own hand writing in which thump impression and signature of both the accused/appellants were taken which is Ex.Ka.1 on record. When they were searched, 3 kgs. of Charas was recovered from the possession of each of the accused/appellants. Thereafter, two samples of 200 grams each recovered article from the accused/appellants were taken at the spot and it was sealed separately by the police. The rest of the charas which was recovered from the possession of the accused/appellants was sealed separately and recovery memos thereof were prepared at the spot. The accused/appellants were taken into the custody. Thereafter, the recovered articles as well as the apprehended accused/appellants were taken to the police station and case was registered against them. The recovered articles as well as sample seal were handed over to the head 5 Moharrir of the police station. The higher officials were informed about the arrest and seizer of the accused/appellants. 9. R.A. Singh PW2 is the witness of arrest and seizer. He has corroborated the evidence of S.S.I. D.L. Verma PW1. He had given the vivid details of the arrest, search and recovery of the contraband articles. S.I. M.P. Singh PW3 is the Investigating Officer of this case. He has also sent the recovered charas to the Chemical Examiner, Agra. He prepared the naksha nazri, recorded the statement of the witnesses and thereafter submitted the chargesheets against the accused/appellants. The prosecution also examined Constable Sant Ram Singh PW4 who has stated that on 07/07/2003 he took two samples of the said recovered charas to Agra. He has further stated that the said recovered articles (Ex.Ka.8 & Ex.Ka.10) which were handed over to him was handed over by him to Forensic Science Laboratory, Agra which was received by the said Laboratory on 08/07/2003. 10. Learned counsel for the accused/appellants contended that however Section 52 and 53 of Act, 1985 are not mandatory but these sections are directory in its nature; the seized articles have not been kept in proper custody and in proper form by which the Court could be sure that what was seized from the possession of the accused/appellants was the only substance which was sent to the Chemical Examiner and produced before the Court. The learned Counsel for the accused/appellants further contended that there is a big gap and important missing link by not producing the Moharrir of the police station who could have stated that the said articles were kept as intact as it was. It was also obligatory on the part of the police to prove that the said articles were sealed in the police station alongwith 6 the seal of the station officer. It was further contended that the said articles which were received by the Director Laboratory of Forensic Science contains the seal of the District Judge, Udham Singh Nagar. There is no mention that any other seal as pointed out by S.S.I. D.L. Verma PW1 was found there. S.S.I. D.L. Verma PW1 has stated in his cross examination that he sealed the said articles by his own seal in which D.L. Verma had been written on the seal. Sample seal was also prepared and handed over to Head Moharrir of the police station. He has further stated in his cross examination that the said sample seal was not before him at the time of giving the evidence. It is apparent that the said sample seal was not before the court at the time of adducing the evidence. Now, the question arises as to how it can be adjudged that the said articles which were produced before the court for identification of the witnesses was identified by the witnesses. S.S.I. D.L. Verma PW1 has stated that the articles which were recovered from the possession of the accused/appellants are the same which has been produced before the Court. He has not stated that the said seal which was on the record, produced immediately after the arrest of the accused/appellants before the court, was compared before the court and the seal is the same after the comparison and he could not say so in absence of sample of seal before the court. The said articles had not been identified while opened before the court. It is also pertinent to mention here that the sample which was taken from the possession of the accused/appellants was sent to the Director, Forensic Laboratory vide letter dated 07/07/2003 Ex.Ka.8 which was received on the next date through Sant Ram Singh PW4. He has stated the said articles which were received by him were kept in the safe custody and handed over to the Director Forensic Laboratory under safe custody. There was no 7 tempering in the said substance. The Investigating Officer S.I. M.P. Singh PW3 has stated in his cross examination as follows:- “Fkkus ls uewuk eky o uewuk eksgj nksuksa dkfu0 lUrjke dks fn;s FksA uewuk eky 200&200 xzke Hkstk FkkA ftl fnu lUrjke dks uewuk eky o uewuk eksgj Fkkus ls nsdj U;k;ky; Hkstk Fkk ml fnu esa pkSdh esa Fkk Fkkus ij ugha FkkA eq>s bl ckr dh tkudkjh ugha gS fd lUrjke dksu lk uewuk eksgj ysdj vkxjk x;k Fkk vkSj uewuk eky ij dkSu lh eksgj ml le; yxh FkhA” 11. It is stated by him in his chief examination that he handed over the seal, the seal of the sample and the articles for the examination to the Court. He has further stated in his cross that he could not say which of the sample seal was given to him and what was the seal on the articles which were sent to the Chemical Examiner. The report of the Chemical Examiner, Agra clearly reveals that the articles were received only on the seal of District Judge, Udham Singh Nagar. There is no other wrapper on which the seal of S.S.I. D.L. Verma PW1 was found. If the prosecution case is taken on its face value, there must have been two seals on two different wrappers. The first seal would have been of the District Judge, Udham Singh Nagar and therein after opening the said wrapper there would have been another seal of S.S.I. D.L. Verma PW1 in which the recovered articles were seized at the spot. But this fact is not there at the time of the examination of the articles. This facts leads to take inference that there was no seal of S.S.I. D.L. Verma PW1 as stated in his evidence. The substance was brought before the Court which was sealed before the District Judge and thereafter sent to the Chemical Examiner. The other inference can be drawn that the sealed article received from the police station were tempered and opened and thereafter, it was sealed by the police with the seal of the District Judge. Thus, the possibility 8 of opening the sample and tempering of the sample cannot be ruled out. 12. The prosecution has not adduced the evidence of Head Moharrir and S.H.O. with respect to the compliance of sealing the articles at the police station wherein it could be made clear that the said articles were kept in safe custody in the police Malkhana till the order of the Magistrate or Judge was obtained. The prosecution should have adduced the evidence of S.H.O. or the Malkhana Moharrir before the Court that the samples which were sent to Agra was kept in the safe custody of the police Malkhana and it was never tempered with. Before sending the Mal to Agra, if it was required to be opened before the District Judge a memo would have been prepared after comparing the seal on the articles with the sample seal and then it should have been opened by the police and then again it would have been sealed in the presence of Sessions Judge. It has not been done in this case. For the safe custody of the recovered articles, the Malkhana Moharrir of the S.H.O. should have produced the said articles before the court and have obtained proper order for keeping the Mal either in the Malkhana of the District or as the case may be. The same seal would have been produced before the court and it should have been proved before the court by the arresting officer like any other documents. In absence of such evidence, the link evidence is missing. This fact also creates a doubt in the testimony of the prosecution witnesses. I am fortified with the view taken by Allahabad High Court in Shiv Charan Vs. State A.C.C. 1999(38) p/181 in which it has been held as under:- “6. A perusal of the record of the case shows that the prosecution had not given link evidence. It is not given link evidence. It is not known where the 9 seized charas was kept after it was recovered from the possession of the appellant. It is also not known that who had carried it from the place of recovery to the place of storage. No evidence was also adduced as to who had carried the charas in question to the Chemical Examiner. The said Charas is said to have been recovered on 11.10.1990 and the report of the chemical examiner is dated 26.8.1993 from which it appears that it was received in the office of chemical examiner by means of letter dated 5.11.1991. No evidence is given to show that the Charas in question remained intact in the sealed bag for a period of more than one year i.e. from 11.10.1990 to 5.11.1991. In view of this, it cannot be said that the same Charas was sent to the chemical examiner for his report which was recovered from the possession of the appellant. Hon’ble the Supreme Court in the case of Valsala Vs. State of Kerala 1993 (30) ACC 605 S.C. has held that in the absence of link evidence, the conviction under the N.D.P.S. cannot be sustained.” 13. It has also been held in Valsala Vs. State of Kerala 1993 Supp.(3) S.C.C. p/665 that :- “We have seen the report of the Chemical Examiner and there no doubt it is mentioned that one sealed parcel was received containing a powder and it was analysed to be brown sugar. But from the records it is clear and it is also noted by both the courts below that the seized article was produced in the court only on 14.1.1988 i.e. after a period of more than three months and there is no evidence whatsoever at all to show with whom the seized article was lying and even assuming that it was in the custody of PW6, the Officer in charge of the police station who seized it, there is again nothing to show whether it was sealed and kept there. The learned counsel for the State no doubt argued that the provisions of Section 55 of the Act are not mandatory but only directory. We need not go into this legal question in this case. Suffice it to say that the article seized appears to have been not kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the Chemical Examiner. There is a big gap and an 10 important missing link. In the mahazar Ex.P-2 which is immediately said to have been prepared, there is nothing mentioned as to under whose custody it was kept after seizure. Unfortunately for the prosecution even PW6 does not say that he continued to keep it in his custody under seal till it was produced in the court on 14.1.1998. The evidence given by PW6 Police Sub-Inspector, who seized the article is absolutely silent as to what he did with the seized article till it was produced in the court. As a matter of fact he did not produce it in the court. PW3, A.S.I. is supposed to have produced the same in the court. But PW3 does not say anything about this. It is only PW7 the Circle Inspector who comes into the picture at a later date, who admitted in the cross examination that the seized article was sent by PW3 (A.S.I.) to the court and PW7 in his cross examination further admitted that he did not even see if the recovered material object was sealed but still he claims that he made the necessary application for sending the material object for chemical examination and it is only through PW7 that the Chemical Examiner’s report is marked. PW7 further admitted that he did not even know when it reached the court. We are constrained to say that the investigation in this case has been perfunctory and on important aspects the evidence of the concerned officers is highly discrepant and unconvincing and does not throw much light. Therefore, the evidence adduced is wholly insufficient to conclude that what was seized from the appellant alone was sent to the Chemical Examiner. Though this is purely a question of fact but this is an important link. Both the courts below have not examined this aspect in a proper perspective. No doubt the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof, the courts cannot convict.” 14. It has been held in State of Tamil Nadu & another Vs. Muniandi 2001 J.Cr. SC p/308 that :- “9. ……………………………………The I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness PW1 and was kept him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police 11 station as required under section 55 of the NDPS Act. The prosecution had not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser. …………… ” 15. The Hon’ble Supreme Court has observed in State of Rajasthan Vs. Gurmail Singh 2005 SCC(Cri) p641 that :- “2. ………………In the first instance, though the seized articles are said to have been kept in the malkhana on 20.5.1995, the malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW6 on 5.6.1995. We further find that no sample of the seal was sent alongwith the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles.” 16. In the case of Gurbax Singh Vs. State of Haryana 2001 Vol.3 SCC Page 28, the Hon’ble Supreme Court has held as follows:- “9. ………………………………… It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding the arrest of the accused or seizure of the article. In the present case, I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness P.W.1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer incharge of the police station as required under Section 55 of the N.D.P.S. Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser.” 17. It has also been held by this Court in Mr. Harman Chrust Vs. State 2005(1) U.D. p/736 that the prosecution cannot prove its case against the accused without the link evidence 12 that the seized article was not tampered with during the period it remained in the custody at police station and thereafter at malkhana is completely missing. 18. It is also important to mention here that the provisions of the N.D.P.S Act are very stringent and it provides all the necessary formalities to be done before taking the accused into custody in order to safeguard the accused from false implication. If the law is stringent, it is obligatory on the part of the prosecution to prove all the formalities & safeguards as provided under the act, or the prosecution should adhere to the formalities & safeguards, which are necessary to safeguard the interest of the accused-appellant. It is true that the provisions of Sections 52 & 57 of the N.D.P.S Act are directory in nature and violation of these provisons would not ipso fact lead to take the acquittal of the accused. At the same time the prosecution cannot ignore these provisions and if these provisions had been violated, failure would have a bearing on the appreciation of the evidence regarding arrest of the accused or seizure of the articles or safe custody of the articles so seized. 19. For the perusal of the court, the recovered articles were asked to be produced before the Court. On the last date a report was submitted that the said articles have been destroyed by the police. When I inquire as to how these articles have been destroyed during the pendency of the appeal, it was brought to my notice that the then S.H.O. submitted a report that there is no appeal in the matter and the case has been decided so he obtained the orders of destruction of the said property. It was found that the report was prima-facie false one. This court on the last date passed order on 04/08/2008 to submit the affidavit of D.M., Udham Singh Nagar and Sri. P.C. 13 Pant, S.H.O. Police Station Ranikhet, District Almora as to how this contraband was destroyed during the pendency of the appeal. The proceeding initiated vide order dated 04/08/2008 would continue. Registry is directed to register miscellaneous case in this matter and summoned the record in the miscellaneous case. 20. In view of the foregoing discussions and on the basis of the aforesaid evidence, I am of view that the prosecution has not been able to establish the guilt beyond reasonable doubt against the accused/appellants. I find that the learned trial court has erred in convicting and sentencing the accused/appellants. The judgment and order dated 19.12.2003 passed by the learned Additional Sessions Judge/II F.T.C., Udham Singh Nagar in S.T. Nos. 86 of 2003 & 87 of 2003 is hereby set aside. The appeals are liable to be allowed and