RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1395 OF 2001 (OLD NO. 852/1994) Bhopal Singh @ Brij Behari S/o Sri Dilbag Singh, R/o Karnprayag, P.S. Karnprayag, Distt. Chamoli ……… Appellant/accused Versus State ……… Respondent June 4, 2009 Mr. Vikas Pande, Amicus Curiae for the appellant. Mr. M.A. Khan, Brief Holder for the State. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant under Section 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 29.4.1994 passed by Special Sessions Judge, Chamoli in Special Trial No. 3/92, State v. Bhopal Singh alias Brij Behari, whereby the learned Special Sessions Judge has convicted the appellant/accused under Section 20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the Act’) and sentenced him to undergo rigorous imprisonment for a period of ten years along with fine of Rs. 1,00,000/- and in case of default in the payment of fine, the appellant/accused was directed to further undergo R.I. for a period of one year. While giving benefit of Section 27 of the Act, the appellant/accused has been sentenced to R.I. for six months for possession of Ganja. It was also directed that both the sentences shall run concurrently. 2. Heard learned Counsel for the parties and perused the entire material available on record. 3. The prosecution case, in brief, is that on 28.9.1992 at about 6.05 AM, when S.I. Jaspal Singh Panwar (PW1) and Constable Sewa Ram (PW2) were patrolling on Gwaldam Garud on motor road being on law and order duty, they received information through the informer (mukhbir) that one person having illegal Charas and Ganja was waiting near Dhobi Ghat Gadhera for bus to go to Almora. On this, they tried to procure public witnesses but no public witness could be available. They searched each other and assured themselves that they were not having any illicit articles. Thereafter along with the informer, they proceeded towards Dhobi Ghat Gadhera and 15 steps before the spot, the informer pointed out the accused. After that the informer left the place. At about 9 AM, the accused was arrested who told his name as Bhopal Singh @ Brij Behari. Thereafter appellant/accused was searched and about 1/2 kg of Ganja and about 40 gm Charas were recovered from his possession, which were kept in a polythene inside a red colour bag hanging with his left shoulder. 25 gm Ganja were taken as sample in a separate packet for chemical analysis and rest were sealed separately in another packet. In the same manner, 25 gm Charas was taken as sample in a separate packet for the chemical analysis and rest were sealed in another packet. Sample of seal was also prepared. Fard of recovery Ex. Ka-1 was also prepared at the spot. On the basis of the fard Ex. Ka-1, chick FIR Ex. Ka-3 was prepared by PW2 Constable Sewa Ram at 12.05 PM on the same day i.e. on 28.9.1992 at Police Post Tharali and vide G.D. report no. 8, he registered a case against the appellant/accused, carbon copy of which is Ex. Ka-4. Thereafter police party along with the appellant/accused went to P.S. Karnprayag, where they filed all the papers vide G.D. report no. 22, carbon copy of which is Ex. Ka-5. 4. The investigation of this case was taken by Tara Dutt Pant (PW3), the Inspector In-charge of P.S. Karnprayag, who recorded the statement of the witnesses during the course of investigation and after inspecting the spot, prepared the site place Ex. Ka-6. Samples of the recovered articles were sent for chemical analysis on 7.10.1992 and report of the chemical examiner dated 1.12.1992 Ex. Ka-8 was received. After completing the investigation, the I.O. filed the chargesheet Ex. Ka-7 against the appellant/accused. 5. On 30.6.1993, learned Special Sessions Judge framed separate charges for the possession of Charas and Ganja against the appellant/accused u/s 20 of the Act. The charges were read over and explained to the accused who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW1, SI Jaspal Singh Panwar; PW2, Const. Sewa Ram and PW-3, Inspector In-charge Tara Dutt Pant, the I.O. of the case. 7. Thereafter statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he was falsely implicated in this case. However, in defence, he did not produce any oral or documentary evidence. 8. After appreciating the evidence and after hearing learned Counsel for the parties, learned Special Sessions Judge, Chamoli vide his judgment and order dated 29.4.1994 convicted and sentenced the appellant/accused as discussed above. Against the aforesaid judgment and order dated 29.4.1994, the appellant/accused has preferred the present appeal. 9. To prove its case, the prosecution has examined PW1 SI Jaspal Singh Panswar and PW2 Constable Sewa Ram, who have reiterated the facts stated in the recovery memo Ex. Ka-1. 10. PW3 Tara Dutt Pant, the Inspector In-charge of the P.S. Karnprayag and the I.O. of the case, has stated that he recorded the statement of the witnesses during the course of investigation and also prepared the site plan Ex. Ka-6. On 7.10.1992, he sent the samples of the recovered articles for chemical analysis. After receiving the report of the chemical examiner, he filed the chargesheet Ex. Ka-7 against the appellant/accused. 11. Thereafter statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he was falsely implicated in this case. In reply to question no. 11, he has stated that he was arrested from Gwaldham chauraha when he was returning from the Yatra. A temple of Rama above the Karn Shila in Karnprayag was in a very dilapidated condition. People gave command of that temple to him. He got that temple cleaned and repaired. One Madhusudnacharya told him to go away from there, who acting in collusion with the police, falsely implicated him in this case. However, in defence, he did not produce any oral or documentary evidence. 12. Learned Amicus Curiae for the appellant/accused argued that the case against the appellant/accused is not proved beyond reasonable doubt as the prosecution has failed to prove that the samples which were sent for chemical analysis are the same samples which were taken separately for that purpose on the spot and there is no link evidence to prove that the report Ex. Ka-8 is of the same articles which are alleged to have been recovered from the appellant near Dhobi Ghat Gadhera. I find substance in the argument put forth by learned Amicus Curiae for the appellant/accused for the following reasons:- (i) That it has come on the record that the recovered articles were deposited in the malkhana on 30.9.1992 and the same were sent for chemical analysis on 7.10.1992. But it was not proved by the prosecution that the Ganja and Charas said to be recovered on 28.9.1992 from the possession of the appellant/accused Bhopal Singh were kept intact in the mallkhana till the date it was sent for the chemical examination. (ii) That it has not been stated anywhere that who had taken the samples of the recovered articles to the laboratory for chemical analysis and deposited them back in the malkhana. (iii) That report of the chemical analysis Ex. Ka-8 issued by the Joint Director, Forensic Laboratory Agra reveals that about 20 grams Charas and about 23 grams of Hemp were received for chemical analysis, whereas it was alleged samples in the quantity of 25 grams of Ganja and Charas each were sent for chemical analysis. Furthermore, it also reveals from the report Ex. Ka-8 that about 23 grams of hemp in the shape of tablets were sent for the analysis, whereas in the fard Ex. Ka-1 it has not been mentioned that the said article recovered form the appellant/accused was in the shape of tablets. Thus, there is apparent contradiction in the prosecution story regarding the link evidence and chemical analysis. (iv) That police party failed to procure any public witness. 13. In support of his arguments, learned Amicus Curiae for the appellant cited the judgment reported in 1999 (38) ACC 181, Shiv Charan v. State and relied heavily 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 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 has further been placed on the judgment delivered by Hon’ble Apex Court in the case of State of Rajasthan v. Gurmail Singh reported in 2005 SCC (Cri) 641. Para 3, 4 and 5 of this judgment are relevant and the same are reproduced below:- “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 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. Reliance has also been placed on the judgment of Division Bench of this High Court in Mr. Harman Chrust v. State reported in 2005 (1) U.D.-727, wherein at para 25 it has been observed as under:- “25. Another point, which creates suspicion about the authenticity of the prosecution story, is 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 witnesses 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 Amicus Curiae for the appellant further invited my attention towards Clause 2.9 Standing Order no.1/89, 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.” 17. Thus, from the foregoing discussion of evidence and legal proposition (supra), the prosecution has not proved its case against the appellant/accused beyond reasonable doubt that the samples sent for the chemical examination were taken from the Ganja and Charas alleged to be recovered from the possession of the appellant/accused Bhopal Singh on 28.9.1992. The case of the prosecution is also not proved by the link evidence that the Ganja and Charas, shown to be recovered from the possession of the appellant/accused on the alleged date i.e. on 28.9.1992, were the same articles which were kept intact in the Malkhana up to the date when the samples were sent for chemical examination. 18. 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.” 19. In the documentary or the oral evidence it has not come that within the next 48 hours after the said arrest or seizure, the report of the particulars of arrest or seizure 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 v. State of Haryana reported in (2001) 3 Supreme Court Cases 28 and has relied on para-9 which is reproduced as under:- “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...” 20. Thus from the evidence discussed above, the prosecution has also failed to prove the compliance of Section 57 of the Act. 21. In view of my above discussion and conclusion, it is held that the prosecution has failed to prove the case against the appellant Bhopal Singh beyond reasonable doubt for the offence punishable u/s 20 of the Act and, therefore, the impugned judgment and order dated 29.4.1994 passed by the Special Sessions Judge, Chamoli is not justified and correct. 22. Resultantly, the appeal is allowed. Appellant Bhopal Singh @ Brij Behari is acquitted of the charges levelled against him. The judgment and order dated 29.4.1994 passed by the Special Sessions Judge, Chamoli in Special Trial No. 3/92, State v. Bhopal Singh alias Brij Behari, is hereby set aside. Consequently, the conviction of the appellant for the offence punishable u/s 20 of the Act and the sentence of 10 years’ R.I. with fine of Rs. 1,00,000/- and six months’ R.I. for the possession of Ganja are hereby quashed. 23. Appellant Bhopal Singh @ Brij Behari is on bail. He need not surrender. 24. Let the lower court record be sent back. (Dharam Veer, J.) 04.06.2009 PRABODH