RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1475 OF 2001 (OLD NO.1703 /1995) 1. Narpat Singh 2. Hajara Singh ……… Appellants Versus The State ……… Respondent Dated: May 18, 2009 Sri B.S. Adhikari, learned amicus curiae for the appellant no.1 Sri Narendra Bali and Sri B.S. Adhikari, Advocates for the appellant no.2 Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This appeal, preferred by the appellants 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 07.10.1995 passed by Additional Sessions Judge, Haridwar in Special S.T. Nos.65/1992 and 66/1992, State Vs. Narpat and State Vs. Hajara Singh, respectively, whereby the learned Additional Sessions Judge convicted the accused/appellants Narpat Singh and Hajara Singh under Section 8/15 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as the Act) and were sentenced to undergo rigorous imprisonment for a period of ten years with a fine of Rs. One Lac each. It was also directed that in default of payment of fine, the accused/appellants shall further undergo simple imprisonment for a period of three years. 2. Heard learned counsel for the parties and perused the entire material available on record. 2 3. In brief, the prosecution case is that on 17.3.1992 S.I. Mahendra Pal Singh (P.W.1) alongwith Head Constable Rajeshwar Singh and Constable Ramesh Chandra Sharma were on patrolling duty. When they reached Arya Nagar Chauraha then the Mukhbir (informant) informed them that two persons carrying Doda (opium) are coming from the side of Singh Dwar. Relying upon this information, the police party tried to procure the public witness but no one came forward. Then they took their own search by each other and found nothing incriminating. The police party along with the informant proceeded from Arya Nagar and started waiting for the accused persons by taking side of Majhar. After sometime the accused/appellants reached there. The police party tried to stop them but they did not stop. Then the police party chased the accused persons and caught them at about 05:45 P:M. On being asked, the accused/appellants disclosed their names as Hajara Singh and Narpat Singh. They were asked to give the search before gazetted officer if they so likes but they refused. Then the police party conducted their search. From the possession of the accused/appellant Hajara Singh, about 1 Kg Doda powder was recovered which was in a bag he was carrying in his right hand. The same quantity was recovered from the possession of another accused/appellant Narpat Singh. The accused/appellants could not produce the license of possessing the above- said recovered items. The said recovered items were sealed in separate bags and sample of seal was also prepared. A FARD thereof was also prepared which is Ext.Ka-1. On the basis of FARD (Ext.Ka-1), the F.I.R. was lodged at Police Station Jwalapur, District Haridwar on 17.3.1992 at 06:45 P:M. Chik F.I.R. was prepared by the Head Mohirror Satpal Singh. That chik F.I.R. is Ext.Ka-7. The necessary entries were also made in the G.D., carbon 3 copy of which is Ext.Ka-8. The investigation of this case was entrusted to S.I. Gopal Singh Sindhu (P.W.2), who during the course of investigation prepared the site-plan of the place of occurrence, which is Ext.Ka-2. The I.O. sent the seized material for chemical examination and the reports Ext.Ka-3 and Ext.Ka-4 were received. During the course of investigation, the I.O. also recorded the statement of the witnesses and after completing the investigation, he submitted the charge sheet (Ext.Ka-5) against the accused/appellant Narpat Singh and charge sheet (Ext.Ka-6) against the accused/appellant Hajara Singh. 4. On 3.9.1993, learned Additional Sessions Judge, Haridwar framed the charge against the accused/appellant Hajara Singh u/s 8/15 of the Act. The charge was read over and explained to the accused/appellant, who pleaded not guilty and claimed to be tried. 5. On 4.1.1993, learned Sessions Judge, Haridwar framed the charge against the accused/appellant Narpat Singh u/s 8/15 of the Act. The charge was read over and explained to the accused/appellant who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined P.W.1 Sub Inspector Mahendra Pal Singh and P.W.2 Gopal Singh Sindhu. 7. Thereafter the statement of the accused/appellants were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who has denied the allegations made 4 against them. However, they did not produce any oral or documentary evidence in their defence. 8. Because both the Special Sessions Trial Nos.65/1992 and 66/1992 were arisen out of the same incident and the set of witnesses were also the same, so vide order dated 3.7.1995 the above-said sessions trial were amalgamated and the leading case was made S.T. No.65/92, State Vs. Narpat. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Additional Sessions Judge, Haridwar vide his judgment and order dated 7.10.1995, convicted and sentenced the accused/appellants as stated above. Feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred the present appeal. 9. To prove its case, the prosecution has examined P.W.1 S.I. Mahendra Pal Singh, who has stated that on 17.3.1992 he was posted as Sub Inspector at Police Station Jwalapur. On that day, he along with H.C. Rajeshwar Singh and Const. Ramesh Chandra were on patrolling. When they reached Arya Nagar, the informant told them that two persons carrying illegal Doda powder are coming from the side of Singh Dwar. Relying upon this information, they tried to procure the public witnesses but no one came forward. Then the police party and the informant took their own search and nothing incriminating was found. The police party along with the informant reached near Majhar and started waiting for the accused persons. After sometime they saw two persons coming from the side of Singh Dwar. The informant pointed out the persons and left the place. As soon as these two persons (accused/appellants) reached near Majhar, he intercepted the accused persons but 5 they did not stop whereupon he alongwith the police party caught the accused/appellants at 05:45 P:M. The accused/appellants were told that the police party has doubt of having Doda powder with them (accused/appellants). He asked the accused/appellants if they opt then they may be taken to some gazetted officer before whom they would be searched but the accused/appellants refused for the same. About 1-1 Kg Doda powder was recovered from the possession of each of the accused/appellants. The accused/appellants were asked for the license of possessing the Doda powder (Opium) but they could not produce the same. The recovered Doda powder were sealed separately in two bags. Thereafter the FARD (Ext.Ka-1) was prepared. 10. P.W.2 is Gopal Singh Sindhu, who has stated that on 17.3.1992 he was posted as Sub Inspector at Police Station Jwalapur. On that day the investigation of Case Crime Nos.104/92 and 105/92 were entrusted to him. During the course of investigation he recorded the statement of the witnesses. After inspecting the place of occurrence he prepared the site-plan which is Ext.Ka-2. On 3.4.1992, the recovered item was sent for chemical examination through Constable Jai Prakash. The reports of the chemical examination were received on 22.4.1992 which are Ext.Ka-3 and Ka-4. After completing the investigation, he submitted the charge sheet against the accused/appellants, which are Ext.Ka-5 and Ka-6. He has further stated that the Chik F.I.R. (Ext.Ka-7) was prepared by Head Mohirror Satpal Singh. The necessary entries were also made by him in the G.D., copy of which is Ext.Ka-8. 11. Thereafter the statement of the accused/appellants were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them 6 in question form, who has denied the allegations made against them. However, they did not produce any oral or documentary evidence in their defence. 12. Learned counsel for the accused/appellants has submitted that the prosecution has failed to prove its case beyond reasonable doubt against the accused/appellants u/s 8/15 of the Act. I find force in the argument raised by learned counsel for the accused/appellants due to following reasons:- (i) In the recovery memo (Ext.Ka-1) as well as in the statement of P.W.1 Mahendra Pal Singh it has nowhere come that the sample for chemical examination was drawn from the recovered Doda Powder and that the same was sealed separately. Only it has come that material recovered from the possession of the accused/appellants were sealed in separate bags, which reveals that no separate sample was drawn from the so-called recovery material on the spot in order to send the sample for chemical examination. (ii) The I.O. has stated that the reports with regard to chemical examination of the aforesaid recovered material were received on 22.4.1992. However, the reports Ext.Ka-3 and Ka-4 submitted by the Joint Director, Scientific Laboratory, Agra is dated 1.8.1992. Thus, it is clear that the reports received by the I.O. on 22.4.1992 are some another reports that are not related to the above-said case and which are not filed. (iii) It is not known when the seized material was deposited in the Malkhana and 7 when it was taken from the Malkhana to produce before the court below and also to send them for chemical examination. Even Constable Jai Prakash through whom the recovered items were shown to be send for chemical examination was not produced before the court below which also creates a doubt in the prosecution story. (iv) The said Doda powder is said to have been recovered on 17.3.1992 and the report of chemical examiner is dated 1.8.1992 from which it appears that it was received in the office of chemical examiner by means of letter dated 2.4.1992. No evidence is given to show that the seized Doda Powder remained intact and nobody tampered with it during the period 17.3.1992 to 2.4.1992. (v) Another fact which creates suspicion in the prosecution story is that the reports Ext.Ka-3 and Ext.Ka-4 shows that 75 gm Doda powder in case of Narpat Singh and 60 gm Doda powder in case of Hajara Singh were received for chemical examination at Scientific Laboratory, Agra but there is no evidence which can show as to when such quantity of Doda powder was taken from the so-called recovery material. 13. In support of arguments, learned counsel for the accused/appellants have 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:- 8 “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 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.” 14. Reliance was also placed on the judgment of “State of Rajasthan Vs. Gurmail Singh” reported in 2005 SCC (Cri) 641. Paras-3, 4 and 5 of this judgment 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 9 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 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.” 15. In support of arguments, learned counsel for the accused/appellants further cited a 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 they 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:- 10 “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 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.” 16. Learned counsel for the accused/appellants have 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 11 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.” 17. Learned counsel for the accused/appellants have 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.” 18. 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 reliance was placed upon 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 12 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...” 19. Thus from the above-said discussion and the judgments (supra), the case of the prosecution is not proved by the link evidence that the said Doda Powder, shown to be recovered from the possession of the appellants/accused on the alleged date i.e. 17.3.1992, was the same Doda powder which was sent for chemical examination. The prosecution has also failed to prove that the reports Ext.Ka-3 and Ka-4 received from the Scientific Laboratory, Agra was of the same recovered material. 20. Having given careful submissions made by learned counsel for the parties and in the light of the evidence and in the background of well-settled 13 proposition of law and in view of the interested nature of the evidence and other circumstances, it is clear that the prosecution has failed to prove the case against the accused/appellants beyond reasonable doubt. The trial court was in error in brushing aside serious infirmity in the prosecution case. 21. Accordingly, the appeal is allowed. The judgment and order dated 07.10.1995 passed by Additional Sessions Judge, Haridwar in Special S.T. Nos.65/1992 and 66/1992, State Vs. Narpat and State Vs. Hajara Singh, respectively, is hereby side aside. Consequently, the conviction and sentence as directed by the court below, which has been discussed above, is also set aside. 22. The accused/appellant Hajara Singh is in jail. Let him be released forthwith if he is not wanted in any other case. Another accused/appellant Narpat Singh is on bail. He needs not surrender unless wanted in any other case. 23. A copy of this order shall be sent forthwith to the trial court concerned for compliance of the order. (Dharam Veer, J.) May 18, 2009 RG