IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 405 of 1996 Date of Decision : March 20, 2010 State of H.P. …Appellant. Versus: Hira Singh & Anr. …Respondents-accused. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Addl. A.G. with Mr. R. M. Bisht, Dy. A. G. For the respondents : Mr. M. L. Brakta, Advocate Deepak Gupta, J. (Oral). This appeal by the State is directed against the judgment dated 28.10.1995 delivered by the learned Sessions Judge, Shimla, H. P., in Sessions Trial No. 8-S/7 of 1995, whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act’). The prosecution case in brief is that on 13.1.1995 PW-4 ASI Ram Chand, who was then posted as ASI, Police Post, Jutogh, was on patrolling duty at Tutu Bazaar. He was 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 accompanied by Constable Bishan Dass No.1046. They were on traffic checking duty. ASI Ram Chand received secret information that accused Hira Singh who lived in the building of one Laxmi Chand, is dealing in illicit liquor. He accordingly formed a raiding party and associated two independent witnesses, Roshan Lal and Baldev Raj and sent rukka (Ext.PW- 4/A) to the Police Station, Boileauganj. According to the prosecution before the raid was conducted, Dy.SP N. S. Pal who had gone to Banoti and was on his way back to Shimla met the raiding party headed by ASI Ram Chand near the Power House at Tutu. He was informed that a raiding party has been formed and he also joined the raiding party. Thereafter, the police officials went to the house of the accused. They after giving their own search, conducted the search of the house. During this search, two bottles of XXX Rum and one bottle of county liquor were recovered. In addition thereto, one polythene envelope was found on the table and this contained charas. The weights and scales were called for and the charas was weighed which was found to be 1.900 Kgs. Two samples of 25 grams each were drawn from this charas. Two samples and the bulk charas was sealed with seal ‘T’. The accused were arrested vide arrest memo which was wrongly again exhibited as Ext.PW-4/A. The codal formalities were completed and the documents prepared on the spot. In the Police Station, PW-4 Ram Chand deposited the case property with PW-5. One sample was allegedly sent on the 3 same day to C.T.L. Kandaghat through PW-6 Bishan Dass, but it was returned on the ground that the Laboratory was closed. The sample was then again taken to Kandaghat on 16.1.1995 on the ground that the C.F.S.L. form should be sent separately. PW-6 came back to Shimla and thereafter took the sample again on 17.1.1995. On analysis, the sample was found to be that of charas and on this basis, case was registered against the accused. The learned trial Court has acquitted the accused mainly on the ground that there has been non-compliance of Sections 42 & 50 of the Act and also on the ground that the link evidence has not been completed. As far as Section 50 is concerned, that is not at all applicable to the facts of the present case, since this is not a case of personal search. In respect of Section 42, the prosecution has made out a case that the raiding party was not aware that any contraband within the meaning of the NDPS Act was being kept by the accused. The case of the prosecution is that the premises of the accused were raided only on suspicion of liquor being kept there. As discussed later, this story does not appear to be wholly true. The story of the prosecution is that PW-2 Shri N.S. Pal was a member of the raiding party. When he was cross- examined in the Court, he could not give any detail about the room which was raided in his presence. He did not remember the number of the storeys in the building, the room which was 4 raided, how many sets were there in the building. He in fact could not even state whether the room which was raided was in the ground floor or in the second floor. He also could not remember how many shops were there adjoining the room. This clearly shows that PW-2 was not present on the spot. This itself casts a great doubt on the prosecution story. PW-4 ASI Ram Chand has supported the prosecution version and given details about the building etc. However, there are certain aspects of the statement which again shows that the story being set forth by the prosecution is false. None of the documents prepared at the spot i.e. Ext.PW-2/A, Ext.PW-2/B, Ext.PW-4/A (arrest memo), Ext.PW- 4/B (site plan), bear the signatures of PW-2 Shri N.S.Pal. If he had been present on the spot, he would have definitely signed one of these documents. Once the charas was recovered then the ASI was bound to send a complete report under Section 57 of the Act to the superior officers. According to PW-4, he sent the report Ext.PW-4/C. A perusal of this report shows that it is not addressed to any officer and is only addressed as “Shiriman Ji”. To whom the report was sent has not been proved on record. No witness has been produced from the office of the Superintendent of Police or any other office to show that this report was actually received in the office of the immediate superior officer. In the statement in Court, ASI Ram Chand does not state who were the police officials accompanying him. However, 5 in the rukka Ext.PW-4/A, it was mentioned that he was accompanied by Constable Bishan Dass No.1046. Constable Bishan Dass No.1046 has been examined as PW-6. He states that he carried the rukka from the bazaar to Police Station, Boileauganj and then returned to the spot along with FIR Ext.PW-6/A. He does not say the words “as to whether thereafter he joined the raiding party or not”. There are very important gaps in the link evidence. According to PW-4 ASI Ram Chand, he deposited the case property with PW-5 Krishan Chand. According to Krishan Chand, he kept the case property in the Malkhana. However, no register or record of the malkhana was produced or proved on record. He also did not reseal the sample as required under Section 55 of the Act. This provision is not mandatory, but there should be some explanation as to why it was not followed particularly in view of the facts of this case that the sample came back to the Police Station twice from the Laboratory at Kandaghat. According to PW-5, PW-6 was sent to Kandaghat on 13.1.1995 itself. PW-6 Constable Bishan Dass states that when he reached Kandaghat, the Laboratory had already closed and thereafter he came back to the Police Station and again deposited the case property with MHC Krishan Chand. Nobody states that thereafter the property was kept in the Malkhana or any entry in this regard was made. In fact PW-5 states that he handed over the charge to HC Sanjay Kumar, PW-7 and the case property was given to him. On the other hand, PW-7 Sanjay 6 Kumar states that he took the charge of the Malkhana on 14.1.1995. The sample was thereafter again sent on 16.1.1995 to the C.T.L., Kandaghat. Again it was returned on account of the fact that the C.F.S.L. form had not been sent with the sample. Again the case property was deposited by Shri Bishan Dass and kept in the custody of Sanjay Kumar and sent again for chemical analysis on 17.1.1995. In a case like the present where the sample was sent thrice to the Laboratory, it was imperative for the prosecution to have produced the malkhana register to show that each time the sample came back, it was actually deposited in the Malkhana with seal intact. An entry had to be made in this regard. The Road Certificate would have also shown that the sample had been brought back. Neither the certificate has been produced nor any entry of the Malkhana has been proved. Thereafter an adverse inference has to be drawn against the prosecution and the learned trial Court was right in holding that the link evidence in this case is totally missing. In view of the above discussion, we find no merit in the appeal which is accordingly dismissed. The bail bonds are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. March 20, 2010. (rana)