IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.289 of 2000 Decided on November 15, 2010 State of H.P. …Appellant. Versus Chandermani …Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? For the appellant: Mr. R.K.Sharma, Senior Additional Advocate General with Rajinder Singh Dogra, Addl. Advocate General. For the respondent: Mr. Y. Yaul, Advocate. Justice R.B.Misra, J. (Oral) The present Criminal Appeal has come up for consideration by virtue of granting leave to appeal under Section 378 (3) of the Code of Criminal procedure in reference to judgment dated 20.1.2000, passed by learned Special Judge, Solan, H.P. in Sessions Trial No.21-S of 1999, for alleged offence under Sections 18 and 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’), whereby the alleged accused / respondent was acquitted. 2. The prosecution case is that after receiving secret information by Deputy Superintendent of Police, Prem Thakur constituted a team and reduced information into writing. He was accompanied by CIA staff and ASI Virender Kumar and associating 2 independent witnesses. The shop of the accused from where charas and opium weighing 5 Kgs and 4.500 kgs in two polythene bags of black and white colours were recovered. Two samples taken and sealed were sent for the chemical examination and remaining opium and charas were separately sealed and after investigation the accused / respondent was charged for the above offence. 2. In order to prove its case, the prosecution has examined as many as ten witnesses, whereas, the alleged respondent / accused through his statement under Section 313 CR.P.C. has denied the prosecution case. 3. On consideration, PW-1 Narender Sharma, stated that at about 2-15 P.M., the Deputy Superintendent of Police called him and one Lal Chand also. All members went to the shop of Chandermani and after giving option to the accused whether he would like to be searched by a Magistrate, a gazetted officer or by the Dy. S.P. and on his agreeing search was made and two polythene packets, one of white colour and the other of black colour, were recovered. The black packet was containing charas and the white packet was containing opium. Two samples were taken out from each of the packet and they were sealed with impression “A” and handed over to Sh. Narinder Sharma and the case property produced in the court, was bearing seal impression. In cross- examination PW-1 has stated that packets were lying outside the counter and lying on the floor. PW-1 also mentioned that Dy.S.P. alongwith 2-3 police officials gone inside the shop, however, did not produce the seal. DW-4 Lal Chand associated as second independent witness has mentioned that he has gone to the shop of Kaku alias Hem Raj for purchasing cigarettes at about 10.30 in the morning and after giving cigarettes to him, Hem Raj went out with his bag and kept the shop open. Then 4-5 persons came to the shop of Panditjit and this witness stated that shop is run by Kaku, these persons were carrying some bags with them and they kept bags outside the shop, however, he was called at 2.00 P.M. at the spot. In cross-examination DW-4 Lal Chand has stated that shop is run by Kaku, however, it belongs to Chandermani and 2-3 polythen bags had been kept close to the shutter, but he does not know what was inside the bags. 4. The record shows that when the case property was opened in the court, it contained seal and another packet bearing seal impression ‘A’ was taken out. Again, seals were found to be intact and from this packet, one polythene bag having white colour was taken out which was exhibited as Ex.2 and opium Ex. P1 was found to be contained in it. Similarly, from the second sealed packet bearing impression ‘T’, another sealed packet bearing impression ‘A’ was taken out and on opening this, a black coloured polythen bag Ex. P.4 was taken out which contained charas Ex. P3. It appears that there was no sack found inside the sealed packets when the case property was produced for the first time. 5. On analysis of prosecution witness PW-1, there is no mention of these sacks. PW-1 has mentioned in cross- examination that when they entered the shop, at the back of counter, there were two polythene bags, one white and the other was black. PW-1 did not mention that these polythene bags were kept inside two different sacks and were sealed alongwith sacks with impression ‘A’, whereas Prem Thakur, Dy. S.P. mentioned that close to the counter, there were two small sacks inside the counter on the floor and in one of the sack, there was a black polythene bag containing charas and in the second sack, there was a white polythene bag containing opium. We found contradiction in the statement of Dy. S.P. and the independent witness as they have contradicted each other with regard to the fact of polythene bags having been kept in the sacks or having sealed alongwith sacks at the spot. Such contradiction throws a serious doubt regarding the case property being kept intact, especially when the seal impression which was handed over to PW-1 has not been produced in the court. Another important loophole in the prosecution version is seal impression put on the samples of opium and charas were sent for analysis to CTL Kandaghat. The testimony of PW-4 Ranjit Singh stated that on 6.9.1999, six packets i.e. 2 big packets and 4 small packets were deposited by SHO Mohinder Singh and out of these packets, two sample packets were sent for chemical examination on 8.9.1999 to Kandaghat, whereas statement of ASI Mohinder Singh shows that Om Parkash, S.I., brought 6 packets of opium and charas which had been sealed with impression ‘A’ and then he re- sealed these packets with impression ‘T’ and then he deposited the case property to the MHC after making entry in the register of Malkhana. Out of these packets, two sample packets were sent to CTL Kandaghat on 8.9.1999. Statements of Mohinder Singh and Ranjit Singh show that all the packets should contain impression ‘T’ inclusive of the samples which were sent to CTL Kandaghat. On analysis of form NCRB-I which is Ex.PW6/A, it appears that two samples of 25 grams each of charas marked as C-S-I and C- S-2 and two samples of opium marked as O-S-I and O-S-2 bearing seal impression ‘A’ are being sent for chemical examination. The seal impressions mentioned on these samples are ‘A’ and as per the certificate of the Chemical Examiner, Kandaghat, the samples were received bearing the seal impression, meaning thereby that when he received these samples on 8.9.1999, they were bearing seal impression ‘A’, as mentioned in the form Ex.PW6/A. As such document Ex.PW6/A contradicts the statements of ASI Mohinder Singh and MHC Ranjit Singh that these samples were re-sealed with seal impression ‘T’ and only thereafter they were handed over and kept in safe custody in the Malkhana. It is not understood that if the samples had been released with impression ‘T’ by ASI Mohinder Singh on 6.9.1999 and they remained in the Malkhana till 8.9.1999, how the form Ex.PW6/A mentions that samples were sealed with impression ‘A’ which seal must have been found compared by the Chemical Examiner on the receipt of the sample in the laboratory. It shows that the case property was tampered in between and was not kept intact. As such entire prosecution version gets shattered by contradiction. 6. We also notice that as per document Ex. PW6/A, 2 samples i.e. C-S-1 of charas and O-S-2 of opium were sent on the same day i.e. 6.9.2010 to the Chemical Examiner, whereas, the remaining samples i.e. O-S-2of opium and C-S- 2 of charas were kept in the Malkhana. But samples have been received by the Chemical Examiner on 8.9.1999, however, there is no explanation about the place as to whether these two samples were kept. No doubt MHC Ranjit Singh and ASI Mohinder Singh, have stated that all the six packets were deposited in the Malkhana on 6.9.1999 and then two samples were sent to the Chemical Examiner on 8.9.1999. These statements are contradicted by the document Ex.PW6/A. 7. In view of the aforesaid circumstances, learned Special Judge has rightly come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt and in our considered view also the prosecution has failed to bring home the guilt to the respondent / accused. 8. Resultantly, the appeal fails, being devoid of any merit as such the same is dismissed. Bail bonds furnished by the accused / respondent are hereby discharged. (R.B. Misra) Judge (Sanjay Karol) Judge November 15, 2010 (Ls)