IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.900 OF 2001 (OLD NO.2378/1991) Sukh Dayal Gupta S/o Manohar Lal Gupta R/o Himachal Kerana Store, Rodacentre, Vilaspur, P.S. & District-Vilaspur, Himachal Pradesh ……… Appellant Versus The State ……… Respondent Dated: December 26, 2008 Sri Sanjeev Kumar Sah, learned amicus curiae for the appellant Sri M.A. Khan and Sri Prabhakar Joshi, learned brief holder for the State HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 25/30.10.1991 passed by Sessions Judge, Haridwar in Special Criminal Case No.14/1991, State Vs. Sukh Dayal, whereby the learned Sessions Judge convicted the appellant/accused u/s 8/20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as the Act) and awarded sentence to undergo rigorous imprisonment for a period of ten years with a fine of Rs. One Lac. It was also directed that in default of payment of fine, the appellant/accused shall further undergo rigorous imprisonment for a period of two and a half years. 2. Heard Sri Sanjeev Kumar Sah, learned amicus curiae for the appellant as well as Sri M.A. Khan and Sri Prabhakar Joshi, learned brief holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that on 28.12.1990 at about 1:30 P:M when Sub Inspector J.S. 2 Negi, accompanied by Head Constable Rajpal Singh and Constable Sukhveer Singh during the law and order duty were walking on foot near the side of Ropeway then they saw the appellant/accused, who was coming from side of Ratan Talkies, suddenly turned back and started walking rapidly. On the suspicion, the police party caught hold the appellant/accused near the Railway Pulia. On making search by the police party, about 1/2 Kg Charas, which was in the polythene bag, was recovered from his possession. It was also averted that the public people were asked for witness but they refused to give witness. The recovered CHARAS was sealed on the spot and the specimen seal (NAMOONA MOHAR) was taken. With the same averments, FARD Ext.Ka-1 was prepared on the spot. On the basis of the FARD, the F.I.R. was lodged in the Police Station, Haridwar on 28.12.1990 at 3:10 P:M by Sub Inspector J.S. Negi and the Chik F.I.R. Ext.Ka-2 was prepared by Head Constable Sunil Kumar (P.W.3). Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-3. Investigation of this case was entrusted to Sub Inspector Sardar Singh, who during the course of investigation, inspected the place of occurrence and prepared the site-plan i.e. Ext.Ka-4. Sample of the CHARAS was sent for chemical examination to the Forensic Lab, Agra vide letter dated 2.1.1991. The Assistant Director, Forensic Lab, Agra submitted the report dated 18.4.1991 for the chemical examination, that report is Ext.Ka-8. During the course of investigation, the Investigation Officer has recorded the statements of the witnesses and after completing the investigation he filed the charge sheet against the appellant/accused u/s 8/20 of the Act. That charge sheet is Ext.Ka-5. 3 4. On 9.5.1991, learned Sessions Judge, Haridwar framed the charge for the offence punishable under Section 8/20 of the Act against the appellant/accused. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. 5. In order to prove its case, the prosecution has examined P.W.1 Head Constable Rajpal Singh-witness of the recovery of the above said CHARAS, P.W.2 Sub Inspector J.S. Negi-witness of the recovery of the above said CHARAS, P.W.3 Constable Sunil Kumar, who has prepared the Chik F.I.R. and made necessary entries in the G.D., P.W.4 S.I. Sardar Singh-Investigating Officer of the case, P.W.5 Constable Dharam Veer Singh, P.W.6 Head Constable Horam Dixit-Malkhana Mohirror, P.W.7 Constable Indra Pal Singh, who took the case property to the Forensic Lab, Agra. 6. After that the statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him. However, in defence, he has not produced any oral or documentary evidence. 7. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Sessions Judge, Haridwar vide the impugned judgment and order dated 25/30.10.1991, convicted and sentenced the appellant/accused as above. Feeling aggrieved with the said judgment and order dated 25/30.10.1991, the appellant/accused has preferred the present appeal. 4 8. Further to prove its case, the prosecution has examined S.I. Jaimal Singh Negi (P.W.2), who has stated that on 28.12.1990 he alongwith Head Constable Rajpal Singh, Constable Sukhveer Singh in Government Jeep No. URF 9917 which was driven by Constable Sohan Lal, were on patrolling duty. After completing the duty, when they moved on foot towards the ropeway then they saw the appellant/accused coming from the opposite direction. On seeing the police party, the appellant/accused turned back and started walking rapidly. On the suspicion, the police party caught hold the appellant/accused at about 1:30 P:M below the Railway Bridge. From his search about 1/2 Kg CHARAS which was wrapped inside the polythene bag was recovered. The public people were asked for witness but they refused to give the witness. The recovered CHARAS was sealed on the spot and the specimen seal was prepared. Thereafter the FARD Ext.Ka-1was prepared on the spot. The appellant/accused was taken to the police station alongwith the recovered CHARAS at 3:10 P:M. The recovered CHARAS was deposited in the Malkhana in sealed condition. The statement of S.I. J.S. Negi (P.W.2) gets corroboration from the statement of H.C. Raj Pal Singh (P.W.1). 9. P.W.3 is Constable Sunil Kumar, who has stated that on 28.12.1990 he was posted as Constable Clerk at Kotwali Haridwar. On the basis of the FARD Ext.Ka-1, he has prepared the Chik F.I.R. i.e. Ext.Ka-2. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-3. He further stated that the recovered sealed mohor bundle was deposited in the Malkhana. 5 10. P.W.4 is S.I. Sardar Singh, who has stated that investigation of this case was entrusted to him on 28.12.1990. During the course of investigation, he recorded the statement of the witnesses and prepared the site-plan of the place of occurrence i.e. Ext.Ka-4. He further stated that the case property was sent for chemical examination to Forensic Lab, Agra. After completing the investigation, he filed the charge sheet against the appellant/accused. That charge sheet is Ext.Ka-5. 11. P.W.5 is Constable Dharamveer Singh, who has stated that on 29.12.1990 the appellant/accused was brought before the court and after obtaining the remand order from the Magistrate, the appellant/accused was sent to jail. The case property was also presented before the Magistrate in sealed condition and after that it was deposited in the Malkhana. He has further stated that up to when the case property was in his possession it was intact and nobody has tampered with it. 12. P.W.6 is Head Constable Horam Dixit, who has stated that the recovered case property of case crime no.1145/90 was deposited in the Malkhana in sealed condition on 28.12.1990. On 29.12.1990 the said case property was taken out from the Malkhana alongwith the accused in order to brought before the court and on the same day the case property was again deposited in the Malkhana. On 3.1.1991 the said case property was sent to Forensic Lab, Agra for chemical examination through Constable Indra Pal Singh. 13. P.W.7 is Constable Indra Pal Singh, who has stated that on 3.1.1991 he was posted in Haridwar and on the same day he has taken the said case property to 6 Agra for chemical examination. He further stated that he took case property in sealed condition and presented the same in the Laboratory in the same sealed condition. He further stated that till then the case property was intact and nobody has tampered with it. 14. After that the statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him. However, in defence, he has not produced any oral or documentary evidence. In reply to question no.9, he has stated that his father has gone from the house. In search of his father, he came from Vilaspur (Himachal Pradesh) to Haridwar by Manali-Hariwar bus on 27.12.1990, as he came to know that his father was seen in Haridwar. On 28.12.1990 he reached Haridwar at about 6 A:M in the morning. He was searching his father near Har-Ki-Pairi then at about 9:30 A:M one Head Constable enquired his address. When he told him (Head Constable) that he belongs to Vilaspur then the Head Constable took his search and kept his money Rs.3,500/- into possession. When he objected the matter, number of people gathered at the place. On this, he was taken to the police station and the police kept his money into their possession. Thereafter the police locked him in the jail and asked him to sign on the FARD and he signed on the FARD. He further stated that he does not know what was written in the FARD. 15. Sri Sanjeev Kumar Sah, learned amicus curiae for the appellant argued that the prosecution has not proved beyond reasonable doubt that the CHARAS shown to be recovered from the possession of the appellant/accused is the same CHARAS which was sent 7 to Forensic Lab, Agra for chemical examination. I find substance in the argument raised by learned amicus curiae for the appellant due to following reasons:- (i) The sample of the so-called recovery material (CHARAS) was not taken by the police, separately, on the spot on 28.12.1990 in order to send the sample for chemical examination. (ii) It reveals from the statement of Malkhana Mohirror, Horam Dixit (P.W.6) and Constable Indra Pal Singh (P.W.7) (who has taken the said CHARAS to Agra from the Malkhana for chemical examination) that the said CHARAS was directly sent to Forensic Lab, Agra from the Malkhana for chemical examination on 3.1.1991. But the report dated 18.4.1991 Ext.Ka-8 of the Assistant Director, Forensic Lab, Agra shows that he received the said CHARAS vide letter dated 2.1.1991 with the seal of J.S. Negi. Thus, it reveals that the report Ext.Ka-8 is not the report of the same recovery material (CHARAS) sent through Constable Indra Pal Singh (P.W.7) on 3.1.1991. (iii) The so-called recovery material (CHARAS) that was said to be recovered from the possession of the appellant/accused on 28.12.1990 was not produced before the trial court which also creates a doubt in the prosecution story. 8 (iv) The so-called recovery material (CHARAS) that was said to be recovered from the possession of the appellant/accused on 28.12.1990 was about 1/2 Kg but in the report Ext.Ka-8 of the Forensic Lab, Agra, the CHARAS whose chemical examination was done, its weight was 360 gms, that is a difference of weight of 140 gms. It also shows that the recovery material (CHARAS) shown from the possession of the appellant/accused on 28.12.1990 was not sent for the chemical examination. 16. In support of his arguments, learned amicus curiae for the appellant/accused has cited a judgment reported in 1999 (38) ACC page-181 “Shiv Charan Vs. State” and has relied on para-6 of this judgment, which is reproduced hereunder:- “6. A perusal of the record of the case shows that the prosecution had not given link evidence. It is not known where the 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 chemical examiner is dated 26.08.1991 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 9 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, has held that in the absence of link evidence, the conviction under the N.D.P.S. cannot be sustained.” 17. He has further cited the judgment “State of Rajasthan Vs. Gurmail Singh” reported in 2005 SCC (Cri) 641 and has relied on the paras-3, 4 and 5, which are reproduced hereunder:- “3. ...we find that the link evidence adduced by the prosecution was not at all satisfactory. 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 PW 6 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. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution 10 case have led the High Court to acquit the respondent. 4. We find no error in the judgment of the High Court. 5. This appeal is, therefore, dismissed.” 18. He has further cited the judgment reported in 2005 (1) U.D.-727 of Hon’ble the Division Bench of this High Court “Mr. Harman Chrust Vs. State” in which he relied on para-25, which is reproduced hereunder:- “25. Another point, which creates suspicion about the authenticity of the prosecution story, it that the recovery and seizure has not been made in accordance with the standing instruction no.1/88 dated 15.03.1988 issued by the Narcotics Control Bureau, New Delhi. Clause 1.9 of the Instructions reads as under:- “1.9 It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, Panchnama witness and seizing officer and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the; duplicate of each of the samples. The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop may be sealed properly. Such sealed envelop may be marked as original and duplicate. Both the envelops 11 should also bear the S.No. of the package(s) container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seal should be legible. This envelope alongwith test memos should be kept in another envelope which should also be sealed and marked “Secret-Drug sample/Test Memo” to be sent to the concerned chemical laboratory.” 19. Learned amicus curiae for the appellant/accused has also filed Clause 2.9 Standing Order no.1/89 of which he has placed reliance on clause 2.9, which is reproduced as under:- “2.9. The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop which may be sealed properly. Such sealed envelop may be marked as original and duplicate. Both the envelops should also bear the No. of the package(s) container(s) from which the sample will also have a reference of the test memo. The seal should be legible. This envelope alongwith test memos should be kept in another envelope which should also be sealed and marked “Secret-Drug sample/Test Memo” to be sent to the chemical laboratory.” 20. Thus from the above said discussion of evidence and the judgments (supra), the prosecution has not proved its case against the appellant/accused beyond reasonable doubt that the sample sent for the chemical examination was taken from the CHARAS shown to be recovered from the possession of the appellant/accused 12 on 28.12.1990. The case of the prosecution is also not proved by the link evidence that the CHARAS, shown to be recovered from the possession of the appellant/accused on the alleged date i.e. 28.12.1990, was the same CHARAS which was kept intact in the Malkhana upto the date when the sample was sent for chemical examination. 21. Learned amicus curiae for the appellant/accused has further argued that though the recovery was made at the public place and the place falls on the busy road, but no public witness was shown in the recovery memo. Although it is not necessary that in each and every case public witnesses are required to prove the alleged recovery and it depends on the facts and circumstances of each and every case, but in the present case in hand, as the recovery was made at 1:30 P:M in the busy market on the public road where in each and every time public witnesses are easily available, but by not making effort to collect public witnesses at the time of the alleged recovery, creates reasonable doubt in the prosecution case. 22. Learned amicus curiae for the appellant/accused has further submitted that compliance of Section 57 of the Act was not made at the time of making the arrest. Section 57 of the Act is reproduced as under:- “57. Report of arrest and seizure:- Whenever any person makes any arrest or seizure, under this Act, he shall within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.” 13 23. In the documentary or the oral evidence it has not come that after the arrest and seizure within 48 hours next after the said arrest or seizure, the report of the said purpose was made to the immediate superior officers. Though the compliance of this provision is not mandatory but it is directory. In this regard he has cited the judgment of “Gurbax Singh Vs. State of Haryana” reported in (2001) 3 Supreme Court Cases 28 and has relied on para-9 which is reproduced hereunder:- “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, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, IO has admitted that seal which was affixed on the muddamal article was handed over to the witness PW1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the NDPS Act. The prosecution has not led any evidence whether the chemical analyzer received the sample with proper intact seals. It creates a doubt whether the same sample were sent to the chemcial analyzer. Further it is apparent that the IO has not followed the procedure prescribed under Section 57 of the NDPS Act of making full report of all particulars of arrest and seizure to his immediate superior officer...” 14 24. Thus from the evidence discussed above, the prosecution has also failed to prove compliance of Section 57 of the Act. 25. On the basis of facts and circumstances discussed above, this Court is of the view that the prosecution has failed to prove the case against the appellant/accused for the offence punishable u/s 8/20 of the Act beyond reasonable doubt. The impugned judgment and order dated 25/30.10.1991 passed by Sessions Judge, Haridwar is not justified as per law and is liable to be set aside. 26. Accordingly, the appeal is allowed. The appellant/accused Sukh Dayal Gupta is acquitted from the charge levelled against him. The judgment and order dated 25/30.10.1991 passed by Sessions Judge, Haridwar, in Special Criminal Case No.14/1991, State Vs. Sukh Dayal, is hereby set aside. Consequently, the conviction of the appellant/accused for the offence punishable u/s 8/20 of the Act and the sentence of ten years’ R.I. with a fine of Rs. One Lac, is also set aside. The appellant is on bail. He needs not to surrender. His bail bonds are cancelled and sureties are discharged. 27. Let the record of the court below be sent back to the Court concerned. (Dharam Veer, J.) 26.12.2008 RG