IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 451 of 1996 Date of decision: 31.3.2010 State of H.P. …. Appellant. Vs. Parkash Chand. ... Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1. No. For the appellant-State: Mr.Rajesh Mandhotra, Dy. Advocate General For the respondent : Mr. G.D.Verma Sr. Advocate with Mr. B.C.Verma, Advocate. Per Deepak Gupta, J.(oral) This appeal by the State is directed against the judgement dated 23.1.1996 of the learned Addl. Sessions Judge, Sirmaur District at Nahan, in Sessions trial No. 5-N/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, 1985 (here-in-after referred to as the NDPS Act). The prosecution case is that on 28.9.1994 PW-7 Inspector Tarsem Lal, SHO Police Station Rajgarh alongwith PW-6 H.C. Tapinder Singh and PW-4 Homeguard Gopal Singh had gone to village Naineti in connection with search of the militants in a police jeep. At about 2.00 p.m when they were near Naineti the accused carrying a bag on his left shoulder was seen coming from the other side. On seeing the police party he tried to run away. This aroused the suspicion on the police officials who 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 apprehended him and after obtaining his consent searched him. On search 1 kg. and 900 grams of Charas were recovered from the bag being carried by the accused. When the Charas was recovered the driver of the jeep was sent to get weights and scale and to call the village Pradhan Inder Singh. The driver came back with weights and scale as well as Inder Singh PW-5. One sample of 20 grams was drawn. The bulk Charas as well as the sample were sealed with seal impression ‘T’ and taken into possession vide recovery memo Ext.PC. Thereafter, other codal formalities were completed at the spot and Rukka Ext.PG was sent to the Police Station Rajgarh on the basis of which F.I.R. Ext. PH was recorded. One sample was sent to the chemical examiner and as per the report of the Chemical Examiner Ext.PK the sample was of Charas. Thereafter, challan was submitted in the Court. The accused have been acquitted by the learned trial Court. Hence the present appeal. In the present case though the recovery of Charas has been supported by PW-7 Inspector Tarsem Lal and PW-6 Tapinder Singh, homeguard PW-4 Gopal Singh and Inder Singh Pradhan PW-5 have not at all supported the prosecution case. Gopal Singh has denied that his statement was recorded by the police. According to him, he had never seen the accused previously. He has been cross-examined and has admitted his signatures on Ext.PB, PC and PD but states that he signed the same without reading them. The recovery itself is doubtful 3 because one of the officials accompanying the Investigating Officer has turned hostile. Admittedly, the police party had gone to village Naineti and the occurrence took place near the village. The police officials had a jeep and if the jeep could be sent to get the weights nothing prevented the police officials from getting other independent witnesses from the village itself. According to the Investigating Officer he made no attempt to get any independent witnesses other than the Pradhan who has not supported the prosecution case. However, even if we accept the recovery to be correct there is no link evidence connecting the report of the Chemical Examiner with the recovered Charas. Recovery, in question, is alleged to have taken place on 28.9.1994. PW-7 Tarsem Lal states that he took into possession the bulk Charas and the sample vide recovery memo Ext.PC and sealed the same with seal ‘T’. Thereafter he is totally silent as to what he did with the case property. He makes no averment in this regard. The statement of PW-2 constable Ranjeet Singh is to the effect that on 12.10.1994 MHC Chet Singh handed over one sealed sample sealed with seal ‘T’ alongwith R/C No. 46 of 94 for being taken to Chemical Examiner, Kandaghat. According to this witness some objections were raised by the Chemical Examiner and it was brought back and returned to the MHC Chet Singh and thereafter the sample was again taken on 14.10.1994 and he deposited the same with the Chemical Examiner on the same day. He further 4 states that the sample was not tampered with during the period when it remained in his custody. Accepting the statement of this witness to be correct he only talks about the period from 12.10.1994 to 14.10.1994. The prosecution has led no evidence whatsoever to show as to where the case property remained from 28.9.1994 to 12.10.1994. Was it kept in the Malkhana or was it kept by the Investigating Officer? Who handed over the case property to the MHC? All these questions remained unanswered. Even R.C No. 46 of 94 has not been proved in the Court. The Malkhana Register has not been produced. What were the objections raised by the Chemical Examiner, Kandaghat on 12.10.1994? The possibility of the objections being that the seal is not intact cannot be ruled out. It was the duty of the prosecution to have led evidence to show that from 28.9.1994 when the contraband was seized till it was delivered in the office of the Chemical Examiner it remained in safe custody and there was no opportunity of anybody tampering with the same. This has not been done in the present case. In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are discharged. (Deepak Gupta) Judge. 31st March, 2010 (Sanjay Karol) ™ Judge.