IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. : 191 of 1997 Decided on : 05.08.2010. ___________________________________________________________ State of Himachal Pradesh … Appellant. Versus Geeta Ram and another … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Rajinder Dogra, Additional Advocate General, with Mr. Anil Jaswal Deputy Advocate General. For the respondents : Mr. Malay Kaushal, Advocate vice Mr. Ramakant Sharma, Advocate. ___________________________________________________________ V.K. Sharma, Judge (oral). The State is in appeal against the judgment dated 23rd December, 1996 of the learned Additional Sessions Judge, Shimla, H.P., whereby the respondents (accused) denoted as A-1 and A-2, were tried for offence under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short the “Act”) and were ultimately acquitted. 2. It is pointed out at the very outset by the learned vice counsel appearing on behalf of the accused that A-1, Gita Ram has since died about 4-5 years back, which position is also not disputed on behalf of other side. 3. Brief facts giving rise to the prosecution case are that on 2.11.1991 at about 3.00 A.M. in the early morning, secret information was received at Police Station, Shimla-West (Boileauganj). It was informed 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 that both the accused were engaged in illicit trade of narcotic drugs. They were expected to reach MLA Quarters within the jurisdiction of Police Station, Shimla-West on 2.11.1991 at about 4.00 A.M. with a view to dispose of narcotic drugs/(Opium). On receipt of this information, PW-6, Inspector Chander Shankar, the then S.H.O. Police Station-West apprised PW-2, Deputy Superintendent of Police, Brij Lal, of the matter. He was requested to come and join the raiding party. At that time he was residing in Government accommodation in Police Lines, Kaithu. He reached Tunnel No. 103 at about 3.30 A.M. in a police vehicle. From other side, PW-6 alongwith other police officials also reached Tunnel No. 103, almost at the same time. He came across PW-1, Babu Ram and one Mukesh (not examined), who were proceeding towards Anup Service Station and requested them to join the raiding party as independent witnesses and accordingly both of them agreed to act as such. Thereafter, the police party alongwith the non official witnesses proceeded from Tunnel No. 103 to MLA Quarters. In the mean time, when they were about to reach MLA Quarters at about 4.00 A.M., both the accused were noticed coming from the opposite direction. They were intercepted and were given an option whether they wanted to be searched by PW-2, Dy. S.P. Brij Lal or by any other Gazetted officer. The accused offered themselves for search by the Police party, headed by PW-2, Dy. S.P., Brij Lal. Consent memo Ex. PW-1/A was prepared in this regard. Thereafter, members of the police party had offered themselves for search by the accused, but nothing incriminating was found with them during such search vide memo Ex. PW-1/B. Thereafter, both the accused were searched, but nothing incriminating was found from A-2, Gita Ram. However on search of the rexin bag Ex. P-2, being carried by A-2, Salig 3 Ram, opium was found contained therein. On weighing, the same was found to be 900 grams. Two samples weighing 25 grams each were taken out of the recovered contraband for chemical examination. Two samples and bulk of the recovered contraband weighing 850 grams were separately sealed with seal bearing impression ‘X’. One of the samples was sent for chemical examination to CTL, Kandaghat and report Ex. PX was received. It revealed that the sample of the recovered contraband analyzed thereunder contained contents of Opium. 4. On completion of investigation, charge sheet was laid against the accused and they were sent to face trial. On being charged, they did not plead guilty and claimed to be tried. The prosecution evidence followed. It has examined six witnesses in all. 5. On close of the prosecution evidence, the accused were examined under Section 313 Cr.P.C., wherein their defence was that of total denial, innocence and false implication. 6. On conclusion of the trial, both the accused were acquitted by the learned trial Court. Being aggrieved, the state is in appeal. 7. We have heard the learned Additional Advocate General and learned Deputy Advocate General for the appellant/State and learned counsel for the accused and perused the record. 8. The learned Additional Sessions Judge has based his findings of acquittal primarily on two grounds. Firstly, since it was a case of prior information, which was not taken down in writing, there was a complete go-by to the provisions of Section 42 of the Act and secondly, that in view of the judgment of this Court reported as II (1996) CCR 401 (DB), report Ex. PX submitted by Assistant Chemical Examiner, CTL Kandaghat, can not be looked into as under Rule 2 (c) of the Rules framed 4 under the Act “Chemical Examiner” means the Chemical Examiner, Government Opium and Alkaloid Works, Neemuch or Ghazipur. 9. We have no doubt in our minds that none of the aforesaid two grounds pressed into service by the learned Court below to acquit the accused is legally tenable for the reasons that on one hand the provisions of Section 42 of the Act were not at all attracted in the facts and circumstances of the present case and on the other it is by now fairly settled that CTL, Kandaghat, H.P. is fully competent to analyze samples of contraband goods falling within the ambit of the Act and to submit report of such analysis. To elaborate, though there is no dispute that in this case, prior information about the likely arrival of both the accused at or near MLA Quarters was with the police, yet the fact remains that on the one hand a Gazetted Police Officer, PW-2 Dy. S.P., Brij Lal was heading the raiding party and on the other the search and seizure in this case was not relating to contraband “kept or concealed in any building, conveyance or enclosed place” and instead, it was being carried by A-2, Salig Ram in rexin bag (Ex. P2) in a public place. For these reasons, applicability of Section 42 of the Act in this case was not at all attracted. In this conclusion of ours, we are fortified from the authoritative pronouncement of law as laid down by the Hon’ble Supreme Court in M. Prabhulal Vs. Assistant Director, Directorate of Revenue Intelligence 2003 SCC (Cri) 2024 and G. Sriniwas Goud Vs. State of A.P., AIR 2005 SC 3647. 10. However, even despite that on perusal of the evidence on record, we are more than satisfied that no case is made out for any interference with the impugned judgment of acquittal dated 23rd December, 1996. The reasons to arrive at this inference are set out hereinafter. 5 11. A combined and harmonious reading of the evidence on record would go to show that the link evidence adduced by the prosecution in this case is not sufficient in content to come to the conclusion that the sample of the contraband allegedly recovered from A-2, Salig Ram which is said to have been analyzed vide report Ex. PX is in any way connected with the contraband said to have been recovered from him. Though both PW-2 Dy. S.P., Brij Lal and PW-6, Dy. S.P., Chander Shankar, the then Inspector Police Station, Shimla-West, who was the Investigating Officer in this case, have stated that seal impression of the seal used during the proceedings connected with the search and seizure in question, was prepared and the same is Ex. PW-1/F, yet they have nowhere stated that the same was deposited with PW-4, ASI Govind Ram, the then MHC Police Station, Shimla-West. Further more, PW-4, ASI Govind Ram has also not stated that while sending the sample for analysis to CTL Kandaghat, the sample seal was also sent. Similarly, PW-3 constable Ravinder Kumar who had taken the said sample to the laboratory at Kandaghat has also not stated that either the specimen seal impression was handed over to him by PW-4, ASI Govind Ram alongwith the sample or he had deposited any such sample seal impression with the said laboratory. 12. Against the above backdrop, it shall be appropriate to notice the report submitted by CTL, Kandaghat Ex. PX, wherein in column No. 7, description of the seal is stated to be as ‘X’ and number of seals is given as ‘five’. In column No. 8 with regard to the facsimile of the seal, the entry is ‘attached herewith’. However, facsimile of the seal is not affixed thereon. 13. Another aspect of the case which in our opinion goes to the very root of the case and can not be lightly overlooked, is that seal bearing 6 impression ‘X’ is stated to have been used during the proceedings. However, the Investigating Officer, PW-6, Dy. S.P. Chander Shankar has stated that the samples and the remaining 850 grams opium were sealed in a parcel with seal ‘H’. In order to ascertain whether this part of the testimony of PW-6 Dy. S.P. Chander Shankar was in fact made by him while making statement before the learned court below or it is in the nature of a typographical mistake, having crept into the record due to some oversight and inadvertence, we have perused the Hindi version of the statement of this witness, wherein also it is stated that seal bearing impression ‘H’ was used during the search and seizure under reference. If it was so, the report Ex. PX submitted by the Assistant Chemical Examiner, CTL, Kandaghat is of no consequence and cannot be made basis to connect the sample analyzed thereunder with the contraband allegedly recovered from A-2, Salig Ram. 14. With the death of A-1, Gita Ram, the offence alleged against him does not subsist any more and the appeal against him shall stand disposed of as abated. Even otherwise, as per its own case, the prosecution has not alleged recovery of any contraband from him. 15. In view of what has been stated hereinabove, it shall not be unsafe to conclude that the link evidence in this case is not sufficient in content and upto the mark to return finding of guilt against A-2, Salig Ram. To arrive at this conclusion we rely upon State of Rajasthan Vs. Gopal, 1998 (8) SCC 449; Roshan Lal Vs. State of H.P., 2004 Latest HLJ H.P.968; Mahant Bal Giri and another Vs. State of H.P., 2008 (1) SLC 455; Satish Kumar Vs. State of H.P. 2008 (1) Shim. L.C. 524 and Vineh Kumar Kamlesh Kumari Vs. State of H.P., 2008 (3) SLC 364. 7 16. The above observations brings us to hold that the prosecution was not able to substantiate its case against the accused and it being so, the impugned judgment of acquittal dated 23rd December, 1996 does not call for any interference by this Court. The appeal is accordingly dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. August 05, 2010. (KRS)