IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Leave to Government Appeal No. Nil of 2002 In Government Appeal No. 259 of 2002 State of Uttaranchal .……… Appellant Versus Imran Khan S/o Bhoora Kasai R/o Village Khusahalpur, Thana Sahaspur District Dehradun .……… Respondent Mr. Amit Bhatt, Addl. Government Advocate for the appellant. None for the respondent. Hon’ble J.C.S. Rawat, J. Mr. Amit Bhatt, Addl. G.A. for the appellant. None for the respondent. This is a leave to appeal petition filed by the State against the judgment and order dated 06/07/2002 passed by the learned Special Judge, N.D.P.S. Act, Dehradun in S.T. No.14/1999 u/s 8/15 N.D.P.S. Act whereby the learned Special Judge has acquitted the accused/respondent. The accused/respondent was apprehended by the police raiding party and he was informed about his right to be searched u/s 50 of the N.D.P.S. Act. After search, the police raiding party recovered narcotics substance (Doda powder) from the possession of the accused/respondent. After going through the entire evidence of the prosecution, the learned trial court has acquitted the accused/respondent on the ground that some of the witnesses have stated that the said substance was recovered at the spot; sealed at the spot and thereafter, it was lodged in the police station whereas some of the witnesses have stated that the said seal was opened before the S.O. and it was again sealed with the seal of the S.O. It is in the evidence that the said substance was opened at the police station. There is no memo for any other document which could reveal that it remained intact. The safe custody of the seized article has not been proved. No independent witnesses have been examined by the prosecution though they were available at the spot. It is not proved that the said substance which was recovered from the possession of the accused/respondent was sent to the chemical examiner and weighed at the spot. The trial court has found a number of infirmities in the prosecution witnesses. I have gone through the entire record and the record of the trial court. After going through the record, I find that the prosecution has failed to prove safe custody of the recovered substance and it cannot be ruled out in this case that there cannot be any tempering of the substance during the custody. [See Valsala Vs. State of Kerala 1993 Supp.(3) S.C.C. p/665, Tamil Nadu & another Vs. Muniandi 2001 J.Cr. SC p/308, State of Rajasthan Vs. Gurmail Singh 2005 SCC(Cri) p641 and Mr. Harman Chrust Vs. State 2005(1) U.D. p/736] In view of the above, I do not find any fault in the approach of the learned trial court in acquitting the accused/respondent. The learned trial court has rightly acquitted the accused/respondent. I am of the view that it is not a fit case where the leave to appeal should be granted. Therefore, the leave to appeal petition is dismissed. The appeal also stands dismissed accordingly. Let the lower court record be sent back to the court concerned. 25.06.2008 Shiv (J.C.S. Rawat, J.)