IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No.: 608 of 1996. Decided on: 20.04.2010. __________________________________________________________ State of Himachal Pradesh. … Appellant. Versus Madan Singh and another. …Accused/Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the petitioner : Mr. Vivek Thakur, Additional Advocate General with Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondents : Mr. Romesh Verma, Advocate. Deepak Gupta, J (Oral). This appeal by the State is directed against the judgment dated 30.3.1991 delivered by the Additional Sessions Judge(I), Shimla in Sessions Trial No.8-K/7 of 1989 whereby accused were acquitted of having committed an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity referred to as “the Act”). 2. The prosecution story, in brief, is that on 31.7.1987, one Head Constable Rajinder Singh and Constable Gopal Chand of Indo-Tibet Border Police (for short referred to as “I.T.B.P.”) were on duty at Check Post, Surting-ting. The accused persons were crossing the check post. They were asked to show their passes and the bag being carried by 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - Madan Singh, accused was searched. On search of the bag 1 kilogram 400 grams opium was recovered. The opium was weighed by Head Constable Rajinder Singh. Thereafter, Head Constable Rajinder Singh gave signal to the Commanding Officer, who in turn informed PW-1, Paras Ram who was the Company Commander of the I.T.B.P. On 2.8.1987 the Company Commander brought the accused to Thangi alongwith the opium recovered and their other articles and on 3.8.1987 he took them to police post, Moorang and handed over them to the State Police vide application Ex.PW-1/A. The opium was again opened and weighed in presence of Paras Ram, PW-1 by S.I. Kishan Chand, PW-12. Thereafter one sample was drawn and both the sample and the bulk contraband were sealed. The sample was sent for chemical examination to the Chemical Examiner and it was opined by the Chemical Examiner vide his report Ex.PW-4/C that the sample was that of opium and therefore, accused were charged for having committed an offence under Section 18 of the Act. After the trial, the accused were acquitted. Hence, the present appeal. 3. We have heard Mr. Vivek Thakur, learned Additional Advocate General with Mr. Rajesh Mandhotra, Deputy Advocate General on behalf of the State and Mr. Romesh Verma, learned counsel for the accused- respondents. 4. Prosecution case is that it was Head Constable Rajinder Singh who first apprehended the accused persons and it was Shri Rajinder Singh and Gopal Chand who searched the accused persons and found charas in the bag being carried by Mohan Singh. It was Rajinder Singh who weighed it. Therefore, Rajinder Singh was a very important witness. Rajinder Singh was not examined and no valid explanation has been - 3 - given for his non-examination. This itself renders the whole prosecution case doubtful. 5. Constable Gopal Singh of the I.T.B.P. was examined as PW-2. According to him when he and Head Constable, Rajinder Singh were on duty at the check post, accused came from the side of the bridge. On seeing the officials of I.T.B.P., they started walking fast. This aroused the suspicion of the officials and they stopped the accused and searched them. According to this witness a bag was found in possession of accused Ranjeet Singh and in this bag a yellow coloured plastic container was kept and after opening the container opium was found in it. According to this witness, the search was conducted in the presence of Maya Ram and Gurudev Singh. Thereafter, the guard commander, i.e. Rajinder Singh sent message to the Dy. S.P. Paras Ram. This witness also stated that before the Company Commander came, they had sealed the container with opium in a cloth. In cross-examination, this witness stated that the State Police came to him on 3.8.1987 and he went to the police post with opium on 3.8.1987 itself. He also stated that Dy. S.P., Paras Ram was not with them when they went to police post, Moorang. He then contradicted himself by stating that he only went up to police post, Thangi. He again contradicted himself by stating that he met the State Police for the first time on 5.8.1987. 6. The statement of this witness is contradictory to the statement of PW-1, Paras Ram. PW-1 stated that he had taken the opium alongwith accused persons on 2.8.1987 to Thangi and thereafter on 3.8.1987 to Police Post Morang. 7. PW-3, Gurdev Singh, the independent witness has supported the prosecution. According to him, he saw both the accused persons near - 4 - the bridge and he was walking alongwith the accused persons and Mohan Singh accused was carrying a bag. His version is that the officials of I.T.B.P. had asked the accused persons as to where they were going and to show their passes. The passes permitted the accused to go up to Moorang only and it was thereafter that they were searched. The opium was found contained in a plastic container of “Dalda” and opium was weighed by Head Constable Rajinder Singh. However, the other independent witness, PW-11, Maya Dass has turned hostile and has not supported the prosecution case at all. According to him, no opium was taken into possession in his presence. PW-12, Kishan Chand states that on 4.8.1988 Dy. S.P., Paras Ram (PW-1) handed over a packet containing opium through Ex.PW-1/A at Moorang Bridge. He also handed over the custody of the accused to him. The accused and the case property was taken into possession vide seizure memo Ex.PW- 1/B. He stated that he drew a sample of 10 grams of opium from the seized contraband for chemical examination in the presence of Adar Sen and Daulat Singh PWs. vide Ex.PW-1/D. Thereafter sample was wrapped and seal with seal “H” and rukka was sent to police station for registration of a case. After completion of the investigation, he filed the challan in Court. 8. As pointed out above, Head Constable Rajinder Singh was not examined. Statements of two independent witnesses are totally contradictory to each other. In fact, the statements of the two witnesses, who have supported the prosecution, i.e. Gopal Singh (PW-2) and PW-3 Gurdev Singh are also contradictory to each other. According to Gopal Singh, the opium was recovered from Ranjeet Singh. According to Gurdev Singh, the contraband was recovered from Madan Singh. - 5 - 9. It is the case of prosecution that the opium was weighed by Head Constable Rajinder Singh. There is no explanation as to from where he got the weights and scales to weigh the opium. Even if we ignore this aspect, the most important aspect is that Gopal Singh has not given any detail of the manner in which the opium was sealed. The prosecution witnesses are also giving different versions with regard to the time, date and manner in which the contraband was handed over to the State Police. According to PW-1, Paras Ram, he had handed over the contraband and the accused to the State Police on 3.8.1987 at Police Post, Moorang. On the other hand, PW-2, Gopal Singh stated that it was the State Police who had come to the check post on 3.8.1987. He also stated that when he went to Police Post, Thangi on 3.8.1987, PW-1, Paras Ram was not accompanying him. This witness contradicted himself by stating that the State Police met him for the first time on 5.8.1987. 10. There is also no evidence that the contraband was kept in such a manner so that it could not be tampered with from the date it was recovered from the accused till it was handed over to PW-12. PW-12, Kishan Chand gives another version. According to him, the contraband was handed over to him on 4th August, 1987 at Moorang Bridge. Therefore, the statements of these witnesses are totally contradictory to each other. Another important aspect is that there is no evidence whatsoever to show that the contraband substance was sealed in such a manner that it could not be tampered with. Though it is stated that the contraband was sealed, the exact manner of sealing, the details of the seals, impressions of the seals etc. have not been proved on record. In fact, the witnesses, i.e. PW-1, Paras Ram and PW-2, Gopal Singh have - 6 - not stated that with whom the contraband substance remained from the date it was seized till the time it was handed over to PW-12. Therefore, the possibility of the contraband substance being tampered with cannot be ruled out. Even after the PW-12 took possession of the contraband substance, there is no explanation where it was kept. He has only stated that he sealed the sample and bulk opium with seal bearing letter “H” and thereafter where these packets were kept, remains totally unexplained. The statement of PW-4 has been tendered by way of affidavit Ex.PW-4/A. This gives totally a different version. According to this version, on 3rd August, 1987 the sample and bulk charas in two separate parcels sealed with seal “H” were deposited with him. This is contradictory to the version of PW-12, Kishan Chand, who stated that the charas was handed over to him on 4th August, 1987. This witness further stated that on 21.8.1987 he handed over the sample to H.C. Dharam Sen for taking it to the Chemical Examiner. This sample was received back on 14.2.1988 from the Superintendent of Police and thereafter it was again sent for chemical examination on 4.6.1988 through Constable Harbans Singh to the Chemical Examiner. Affidavit of Dharam Sen is Ex.PW-4/B. According to this affidavit, he took the sample on 21.8.1987 from PW-4, H.C. Gian Chand to the Chemical Examiner and handed it over to Partap Singh, Driver of the Superintendent of Police, Kinnaur. There are two other affidavits on record, Ex.PW-5/C and PW-6/A which deal with the sample from 4.6.1988 to 7.6.1988. There is no explanation as to where this sample was kept and in what condition right from 21.8.1987 till 4th June, 1988. No body has stated that the packet was kept in his or her custody and was kept in such a manner that it could not be tampered with. Therefore, the entire link evidence is also missing. - 7 - 11. In view of the above discussion, we are of the considered view that the handing over of the contraband substance and seizure of the same has not been proved in accordance with law. The entire link evidence is missing and the report of the Chemical Examiner cannot be linked with the seized contraband. Therefore, the appeal is dismissed. Bail bonds furnished by the accused-respondents stand discharged. (Deepak Gupta), Judge. (Rajiv Sharma), Judge. April 20, 2010. (sck).