IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.237 OF 2004 Jagdish Singh S/o Sri Mohan Singh R/o Ghasiyari Mandi, Kasba and P.S. Tanankpur District Champawat ……… Appellant (in jail) Versus State of Uttarakhand ……… Respondent Dated: November 14, 2008 Sri Lokendra Dobhal, learned counsel for the appellant Sri M.A. Khan, 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 23.7.2004 passed by Special Judge, Pithoragarh in Special Sessions Trial No.2/2003, State Vs. Jagdish Singh, whereby the learned Special Judge convicted the accused/appellant- Jagdish Singh u/s 20 of Narcotics Drugs and Psychotropic Substances Act, 1985, (hereinafter to be referred as the Act) and sentenced him to ten years’ rigorous imprisonment and a fine of Rs.1.00 Lac. In default of payment of fine, two years’ R.I. was further awarded. 2. I have heard Sri Lokendra Dobhal, learned counsel for the appellant and Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that on 12.1.2003, Sri B.L. Rawat, Station Officer, Kotwali Pithoragarh along with Constable Mohd. Taqueer, Constable Pramod Kumar, Constable Ajab Singh, Constable Sunil Kumar, Constable Om Shankar Singh and Constable Ashok Kumar along with one driver Shivraj Singh were busy in traffic checking, patrolling and in maintaining law and order. When they were in Siltham Tiraha then at 4:15 P.M. the informant informed him that the accused/appellant Jagdish Singh was having CHARAS in a bag. On this information, he informed Superintendent of Police and the Deputy S.P. through R.T. Set. After that when they moved at a distance of 300 steps from Badda Tiraha then they saw the same person as described by the informant. Thereafter the Police party stopped their jeep near the accused/appellant and they surrounded the accused/appellant. They asked the wayfarers Diwan Singh S/o Dhan Singh, Pooran Ram S/o Nari Ram, Govind Singh Gabriyal S/o Dhan Singh Gabriyal for the evidence but all them refused to give the evidence. All these people were the resident of Village Tildhikuri. At about 4:30 P.M. the accused/appellant was caught hold by the above said police party and they told the accused/appellant that they have got information that he is having CHARAS with him. Then he was taken before the Circle Officer, Pithoragarh and before the Circle Officer search was made by Sri B.L. Rawat, Station Officer and 3Kg 600gm CHARAS was recovered from the bag of the accused/appellant which was inside the polythene bag. From the above recovered item, two pieces of CHARAS were taken as sample in a matchbox and sealed on the spot in a white cloth and the remaining CHARAS was sealed in a polythene in the same bag. The specimen of the seal and the arrest memo was also prepared. FARD of the search and recovery of the CHARAS was prepared, i.e., Ext.Ka-1. On the basis of the FARD Ext.Ka-1, Sri B.L. Rawat lodged the F.I.R. on 12.1.2003 at 6:30 P.M. at Kotwali, Pithoragarh and the Chik F.I.R. was prepared by Head Constable Sheesh Ram. That Chik F.I.R. is Ext.Ka-3. The necessary entry was also made in the G.D., carbon copy of which is Ext.Ka-4. The information of the arrest of accused/appellant was given to his wife Smt. Puspha Dugtal. The information of the arrest memo is Ext.Ka-5. On 7.3.2003, sample of the recovered item was sent for chemical examination by Special Judicial Magistrate Ist, Pithoragarh (U.P.) and the report dated 2.6.2003 of the chemical examination was received. That report is Ext.Ka-10. Initially, the investigation of this case was entrusted to P.W.4 Sri K.K. Verma, Sub Inspector but later on it was transferred to P.W.6 Surendra Singh Rathore, Station Officer, who during the course of the investigation prepared the site-plan of the place of occurrence where the accused/appellant was arrested, i.e., Ext.Ka-7. Site-plan of the place of occurrence where the search of accused/appellant was made in presence of Deputy S.P., Pithoragarh was also prepared. That site- plan is Ext.Ka-8. During the course of the investigation, the I.O. also recorded the statement of the witnesses and after completing the investigation he filed the charge sheet against the accused/appellant u/s 18/20 of the Act. That charge sheet is Ext.Ka-11. 4. On 11.6.2003, learned Special Judge, Pithoragarh framed the charge of offence punishable u/s 20 of the Act against the accused/appellant. The charge was read over and explained to the accused/appellant who pleaded not guilty and claimed to be tried. 5. In order to prove its case, the prosecution has examined P.W.1 Sri A.K. Vaidh, Deputy S.P., P.W.2 Head Constable Mohd. Tauqeer, witness of the recovery of the said CHARAS, P.W.3 Head Constable Sheesh Ram, P.W.4 Sri K.K. Verma, Investigating Officer of the case, P.W.5 Constable Pramod Kumar, P.W.6 Sri Surendra Singh Rathore, Investigating Officer of the case. 6. After that the statement of the accused/appellant was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him. However, in defence, he did not produce any documentary evidence but in oral evidence D.W.1 Tilram was examined. 7. After appreciating the evidence available on record and hearing learned counsel for the parties, learned Special Judge, Pithoragarh convicted and sentenced the accused/appellant-Jagdish Singh stated as above. Feeling aggrieved by the said judgment and order dated 23.7.2004, the accused/appellant preferred the present appeal. 8. To prove its case, the prosecution examined P.W.1 Sri A.K. Vaidh, who has stated that on 12.01.2003, he was posted as Circle Officer, Pithoragarh. On that day, he was present in the Election Office then at 4:15 P.M., Sri B.L. Rawat, Inspector, Kotwali informed him on R.D. Set that he has received the information that a person is having CHARAS in his possession. On that he directed him (Sri B.L. Rawat) to work according to rules. Thereafter at 5:10 P.M., when he was in his office then the Inspector along with other employees came with one person whose name was Jagdish Singh. Before him, Sri B.L. Rawat searched the bag of that person which he was carrying in his shoulder. From that bag about 3.5Kg CHARAS was recovered for which the accused/appellant have got no license. When the said CHARAS was weighed then it was found that the CHARAS was 3Kg and 600gms. Out of it, 10 gm CHARAS was taken for sample and was sealed in a box and rest of the CHARAS was sealed on the same polythene bag and kept inside the bag. Sample of seal mohor of both the items were taken. Before him, FARD of the said recovered CHARAS was written on the spot by P.W.2 Constable Mohd. Tauqeer. That FARD is Ext.Ka-1. After that the recovered CHARAS and the accused were taken to Kotwali. He has identified the CHARAS Ext.1, Polythene Ext.2 and Bag Ext.3 in the court. 9. P.W.2 Constable Mohd. Tauqeer and P.W.5 Constable Pramod Kumar are the witnesses of the recovery. P.W.5 Pramod Kumar is also the witness who has taken the CHARAS to the Scientific Laboratory for chemical examination. He has stated that on 12.1.2003, he was posted at Kotwali, Pithoragarh and Sri B.L. Rawat was Inspector in that Police Station who has died in an accident. On that day, he along with Constable Ajab Singh, Constable Mohd. Tauqeer, Constable Sunil, Constable Umashankar, Constable Ashok and Station Officer Sri B.L. Rawat were busy in patrolling, traffic checking and in maintaining law and order. At 3:10 P.M. they moved from the police station. When they reached at Siltham Tiraha then the informant gave information to Sri B.L. Rawat that Jagdish Singh is having CHARAS in his possession. Then through R.T. Set, B.L. Rawat gave this information to Superintendent of Police and to Deputy S.P. When they reached about 300 steps towards Tildikhuri Tiraha then they saw one person as described by the informant. Then that person was arrested by the above said police party and they told him that they have a doubt that he is having CHARAS in his possession. The accused/appellant told them that he want to give his search in front of gazetted officer. That proceeding was written in a memo and the FARD was prepared, i.e., Ext.Ka-2. After that he was taken along with the bag in Police Election Office and search of the accused/appellant was made before P.W.1 Sri A.K. Vaidh, Circle Officer from where 3Kg and 600gms of CHARAS was recovered. Two pieces from the recovered CHARAS were taken as sample. Two pieces of CHARAS and the remaining CHARAS were sealed separately and the FARD Ext.Ka-1 was prepared. After that the accused was taken to the police station and the CHARAS was deposited in the malkhana and on the basis of the FARD case was registered. The information of the arrest of accused/appellant was given to his wife. That information of the arrest is Ext.Ka-5. He has identified the CHARAS Ext.1, Bag Ext.2 and Polythene Ext.3 in the court. He has further stated that on 7.3.2003 he along with the Investigating Officer presented the case property before the S.D.M., Pithoragarh for chemical examination. Then S.D.M. sealed the said sample by his own seal on which he (Const. Pramod Kumar) has signed. Before him S.D.M. also signed on it. He has identified his signatures. That document is Ext.Ka-6. On the same day, the item was deposited in the malkhana in police station. On 8.3.2003 after taking the above said sample he has gone to Scientific Laboratory where he deposited the above said case property on 11.3.2003 and he gave the information in the police station about depositing the above said sample and told that the said case property was secured in his possession. **fn0 7-3-2003 dks S.D.M. fiFkkSjkx<+ ds le{k eSa o I.O. eky ijh{k.k ds fy, SDM ds le{k izLrqr gq, rc SDM us eky dks viuh lhy ls loZeksgj ,oa lhyeksgj fd;k ftl ij esjs nLr[kr gSaA esjs lkeus SDM lkgc us Hkh nLr[kr fd;sA eSa vius gLrk{kj 'kuk[r djrk gw¡A bl ij izn’kZ d&6 Mkyk x;kA ml fnu ukoDr gksus ls eky Fkkus esa ykdj SHO }kjk eky[kkus esa nkf[ky fd;k fd;kA fn0 8-3-2003 dks ml eky dks ysdj fof/k foKku iz;ksx’kkyk esa ys x;k ogka fnukad 11-3-2003 dks eky nkf[ky fd;k rFkk nkf[ky lwpuk okil Fkkus esa nhA eky esjs ikl lgh o lqjf{kr FkkA** The statement of P.W.5 Constable Pramod Kumar gets corroboration from the statement of P.W.2 Constable Mohd. Tauqeer. 10. P.W.3 is Head Constable Sheesh Ram, who has stated that on 12.1.2003 he was posted as Head Mohirror in Kotwali, Pithoragarh. On that day on the basis of the report of Sri B.L. Rawat he prepared the Chik F.I.R. Ext.Ka-3. The entry was also made in the G.D., copy of the G.D. is Ext.Ka-4. 11. P.W.4 is Sub Inspector, Sri K.K. Verma, who has stated that he was posted as Sub Inspector at Kotwali, Pithoragarh. Investigation of this case was entrusted to him, who during the course of the investigation has written the copy of the F.I.R and copy of the memo of arrest in the case diary. He also recorded the statements of Head Constable Sheesh Ram and the accused Jagdish Singh. The investigation of this case was then transferred to P.W.6 Station Officer, S.S. Rathore. 12. P.W.6 is Surendra Singh Rathore, who has stated that on 20.1.2003, he was posted as Station Officer in Police Station, Jhulaghat. On that day, investigation of this case was entrusted to him by the order of S.P., Pithoragarh. Initially, investigation of this case was conducted by P.W.4 S.I., Sri K.K. Verma. During the course of investigation, he recorded the statement of the witnesses and prepared the site-plan Ext.Ka-7 of the place of occurrence where the accused was arrested and also prepared the site-plan Ext.Ka-8 of the place where the search of the accused was made before the Circle Officer. He has further stated that during the investigation, by the order of S.D.M., sample of the CHARAS was sent for chemical examination to Scientific Laboratory, Agra on 7.3.2003. The report received from the Scientific Laboratory, Agra is Ext.Ka- 10. **nkSjku foospuk (I.O.) bl eqdnesa ls lEcfU/kr eky eqdnekrh dks fnukad 7-3-2003 dks ij0 eftLVSªV ds vkns’k ls uewuk eky dks tk¡p gsrq fo0 foKku iz;ksx’kkyk vkxjk ds fy, Hkstk] ftldh tk¡p fjiksVZ 9d i=koyh ij gSA bl ij izn’kZ d&10 Mkyk x;kA** After completing the investigation, he filed the charge sheet Ext.Ka-11 against the accused/appellant on 8.4.2003. He has further stated that today he has brought the original G.D. from the police station. **vly th0 Mh0 eSa vkt vius lkFk Fkkus ls yk;k gw¡A** In the cross-examination he has stated that the entry with regard to depositing the sample item in the police station on 7.3.2003 and taking the sample item on 8.3.2003 has not come in the case diary probably the entry might have come in the G.D. but the copy of the G.D. was not in the file. He has further stated that he made search for the witnesses who were told by the complainant to him but he could not get success in finding those witnesses. Therefore he could not record the statement of those witnesses. 13. After that the statement of the accused/appellant was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him. However, in defence, he did not produce any documentary evidence but in oral evidence D.W.1 Tilram was examined. 14. D.W.1 is Tilram, who has stated that since 17- 18 years he was working near the gate of Woman’s Hospital by installing temporary shop (FAD). The accused/appellant was known to him who was also having a temporary shop adjacent to his temporary shop. He has further stated that on 12.1.2003 at 9 A.M. two police personnel came in the temporary shop of the accused/appellant and took the accused/appellant with them. He further stated that since then the shop of the accused/appellant was closed. 15. Sri Lokendra Dobhal, learned counsel for the accused/appellant submitted that it was not proved by the prosecution beyond reasonable doubt that the said CHARAS which was shown to be recovered from the possession of the accused/appellant on 12.1.2003 and the sample which was shown to be taken at the spot and sealed, was not the same sample which was sent for chemical examination in Scientific Laboratory, Agra. I find substance in the argument advanced by learned counsel for the accused/appellant as it reveals from the document Ext.Ka-6 that Special Judicial Magistrate Ist, Pithoragarh (U.P.) has sent the sample of the said CHARAS to the Director of the Scientific Laboratory. After testing of the sample, the report dated 2.6.2003 was received from the Specialist, Scientific Laboratory, Agra and which was sent to Special Judicial Magistrate Ist, Pithoragarh (U.P.). P.W.5 Constable Pramod Kumar who was examined by the prosecution has submitted that the case property which was sent for chemical examination was sealed in presence of S.D.M., Pithoragarh and was signed by S.D.M., Pithoragarh and he has also signed on the same seal but the sample on the basis of which the report Ext.Ka-10 was received was sent by Special Judicial Magistrate Ist, Pithoragarh, which proves that the sample which was taken from the malkhana on 7.3.2003 and was submitted before the S.D.M., Pithoragarh and sent by the S.D.M., Pithoragarh was not sent to the Scientific Laboratory, Agra and the report Ext.Ka-10 is also not the report of the sample which was taken from malkhana on 7.3.2003 and which was produced before the S.D.M., Pithoragarh and sent and sealed by the S.D.M., Pithoragarh. 16. Another aspect which is not proved by the prosecution beyond reasonable doubt is that the Investigating Officer has stated in his statement that the entry with regard to depositing the sample item in the police station on 7.3.2003 and taking the sample item on 8.3.2003 has not come in the case diary probably the entry might have come in the G.D. but the copy of the G.D. was not in the file. He further stated that he has brought the original copy of the G.D. with him in the court. If the original copy of the G.D. was with the I.O. in the court then why he has not referred the entry regarding depositing the sample item in the police station on 7.3.2003 and taking it on 8.3.2003 from the malkhana, which also creates a doubt in the prosecution case. 17. Another fact which creates a doubt in the prosecution case is that the sample of the recovered CHARAS was taken on 12.1.2003 and then it was taken from malkhana on 7.3.2003 for chemical examination. There is no evidence on record that why the prosecution has taken so much time to sent the sample for testing and even there is no evidence that from 12.1.2003 to 7.3.2003 up to when the sample CHARAS was in the malkhana that sample CHARAS was intact and nobody has disturbed it. There is no link evidence in the file to prove that this was the same sample and even the sample of seal which was prepared at the spot on 12.1.2003 was not filed by the prosecution in the trial court. No link evidence was filed by the prosecution which creates a doubt in the prosecution case. 18. Learned counsel for the accused/appellant has referred the judgment of the Apex Court in the case of State of Rajasthan Vs. Gurmail Singh reported in 2005 SCC (Cri) 641 and he has relied upon the paras 3, 4 and 5, which are reproduced hereunder:- “3. We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, 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 along with 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.” In the present case also, as narrated above, the prosecution has not proved that the CHARAS which was sent to Scientific Laboratory, Agra for chemical examination was the same CHARAS which was said to be recovered from the possession of the accused/appellant on 12.1.2003. 19. Learned counsel for the accused/appellant further argued that the recovery was sought to be made on the information of the informant at 4:30 P.M. in the evening on 12.1.2003 and that was conducted at the public place on road and three witnesses, namely, Diwan Singh S/o Dhan Singh, Pooran Ram S/o Nari Ram and Govind Singh Gabriyal S/o Dhan Singh Gabriyal, resident of Village Tildhikuri, Kotwali Pithoragarh refused to give the evidence but the Investigating Officer has stated in his statement in the court that the witnesses as told by the complainant could not be searched and due to this reason he could not record the statement of those witnesses which shows that the witnesses were not living at the same address, which also reveals that the police party headed by Sri B.L. Rawat has not tried to procure the independent public witnesses which could be easily available to the police as the arrest was made in the day time at 4:30 P.M. and that was also at the public place on road where the traffic was there and the jeeps were going on the same road. I.O. has also stated in his statement that near the place where the accused was arrested he has enquired from the shopkeepers Alam Giri and Nasir Hussain. By not procuring public witnesses which were easily available at the spot at the time of the arrest also creates a doubt in the prosecution case. 20. Learned counsel for the accused/appellant further argued that in the recovery memo it was shown that two pieces of CHARAS were taken as sample and it has also come in the statement of P.W.5 Constable Pramod Kumar that two pieces of CHARAS were taken for sample but P.W.1 Sri A.K. Vaidh, Deputy S.P. has stated in his statement that about 10gms of CHARAS were taken for sample which also creates a doubt that how the quantity of CHARAS has come in the statement of Deputy S.P. when P.W.5 Constable Pramod Kumar and P.W.2 Constable Mohd. Tauqeer, who were the witnesses of the recovery have specifically stated in their statement that two pieces were taken for sample and the recovery memo also reveals the same that two pieces were taken as sample. Thus, the statement of P.W.1 is contradictory with the statement of P.W.2 Const. Mohd. Tauqeer and P.W.5 Const. Pramod Kumar and also with the recovery memo which creates a doubt in the prosecution case. 21. From the facts and circumstances of the case as discussed above, the prosecution has not proved the case against the appellant/accused beyond reasonable doubt that the said item which was shown to be recovered from the possession of the accused/appellant on 12.1.2003 was the CHARAS. 22. After considering the entire facts and circumstances discussed above and in view of the judgment of Hon’ble the Apex Court (supra), trial court has erred in convicting and sentencing the appellant/accused for the offence punishable u/s 20 of the Act. 23. For the reasons recorded above, the appeal is allowed. The judgment and order dated 23.7.2004 passed by Special Judge, Pithoragarh in Special Sessions Trial No.2/2003, State Vs. Jagdish Singh, is set aside. The conviction of the accused/appellant u/s 20 of the Act and sentence of ten years’ R.I. and a fine of Rs.1.00 Lac, is also set aside. The accused/appellant- Jagdish Singh is acquitted of the charge levelled against him. Let him be released forthwith in the above said case if he is not wanted in any other case. 24. Let a copy of this judgment along with the record of the court below be sent back to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) 14.11.2008 RG