IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 529 of 2010 Date of decision: 19. 5. 2011 Mohammad Ashraf …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . yes For the Appellant: Mr. Ramakant Sharma, Advocate with Ms. Anita Dogra, Advocate. For respondents: Mr. A.K. Bansal, Addl. Advocate General. Surinder Singh, J. (Oral) The appellant hereinafter referred to as ‘the accused’ was convicted by the learned trial Court under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short “the Act” for allegedly keeping in his possession resin content of 80.5 grams of cannabis plant (charas) in the recovered stuff of 350 grams, as such he was sentenced to undergo rigorous imprisonment for a period of five months and to pay a fine of Rs. 5,000/- and in default of payment of fine, he was further 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. - 2 - ordered to undergo simple imprisonment of one month. 2. Since the accused had already in custody for more than six months therefore, the period already undergone by him was ordered to be set-off under Section 428 of the Code of Criminal Procedure. 3. The accused felt aggrieved and dissatisfied by the impugned judgment of conviction and sentence, as such directed the present appeal. 4, In brief, the prosecution case as emerges from the evidence on record can be put thus. On 4.12.2009 at about 4.45 p.m. PW8 S.I. Liaq Ram Sasodia was heading a police patrol-party consisting of PW1 ASI Bahadur Singh, PW2 Nand Lal, PW3 Bhupinder Singh and constables Kulbir and Mohinder. Police patrol party travelled in the Government vehicle towards Sai Road, Baddi. Its entry was made in the rapat Ext. PW6/F and started checking the vehicles. In the meantime, accused came on a motor cycle bearing registration No. HP12-C-4312, from the side of Amarwati Apartments. He was also stopped. On seeing the police present on the spot, he got perplexed which raised suspicion. Getting suspicious PW8 S.I. Liaq Ram - 3 - conducted the search and recovered a packet from the jacket worn by the accused which contained 350 grams of stuff in the shape of sticks, wrapped in a polythene packet. On having identified the substance as charas, a memo Ext. PW1/A was prepared. Police also recovered the weights of 10 gm. and 20 gm along with scale from the possession of the accused. The whole recovered stuff was sealed in one packet at five places with seal producing the impression of English letter ‘P’. Weights and scale were also separately sealed with the same seal at five places. 5. NCB forms in triplicate were filled in and facsimile of the seal was also affixed on each of the forms aforesaid against relevant column. The sample of seal was taken on three pieces of cloth one of which is Ext. PW1/B and the seal after its use was said to have entrusted to PW1 ASI Bahadur Singh. To this effect memo Ext. PW1/C was prepared. 6. Motor Cycle along with its key and documents were also seized vide memo Ext. PW1/C. Relevant columns of the NCB forms were also filled in. 7. Ruka Ext. PW3/A was sent to the Police Station through PW3 Constable Bhupinder Singh for - 4 - registration of the case. PW6 MHC Achhar Singh registered the FIR Ext. PW6/A. PW8 aforesaid prepared the site plan Ext. PW8/A and arrested the accused. Grounds of arrest were informed to him. 8. Case property was produced before PW8 SI Dharam Singh for re-sealing to which he re-sealed with the seal impression “T” and to this effect issued the certificate Ext. PW7/D. Thereafter he deposited the case property in the Malkhana with PW6 MHC Achhar Singh. 9. The case property was also produced before the JMIC Nalagarh, who issued the certificate Ext.PW8/C. PW7 S.I. Dharam Singh also prepared the special report Ext. PW4/A which was sent to the officer superior, within the statutory period. 10. On 7.12.2009, the entire recovered stuff was sent to Forensic Science Laboratory for its analysis through constable PW5 Sher Singh which was deposited by him on the same day. On analysis, it was found having contained quantity of resin to the extent of 22.03 W/W which was found to be the extract of cannabis and sample of charas. The report is Ext. PW8/D. - 5 - 11. After completing the investigation, challan was presented in the court for the trial of the accused. 12. Finding a prima facie case against the accused, he was accordingly charge sheeted for the offence aforesaid. He pleaded not guilty and claimed trial. 13. To prove its case, prosecution examined its witnesses. After closure of the prosecution evidence, the accused was examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances which were found attendant upon him. He alleged false implication on account of altercation with the police. 14. When called upon to enter into his defence, no evidence in defence was led. 15. On appreciating the evidence on record learned trial court disbelieved the defence raised and held the accused guilty. Thus, he was convicted and sentenced as aforesaid, which has been challenged in this appeal. 16. Shri Ramakant Sharma, Advocate duly assisted by Ms. Anita Dogra, learned counsel for the appellant vehemently argued that the provisions of Section 50 of the Act which are mandatory, have - 6 - not been complied with and further that there are material contradictions in the statement of the prosecution witnesses as such conviction and sentence passed by the learned trial Court is wrong and illegal. 17. Contra Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence. 18. I have given my thoughtful consideration to the rival contentions of the parties and have closely and meticulously scanned and reappraised the evidence on record. 19. It is by now well settled that the provisions of Section 50 of the Act applies in a case of personal search of a person but do not extend to the search of a vehicle, container, bag or premises. [Please see: State of Punjab versus Baldev Singh (1999) 6 SCC 172, Kalema Tumba versus State of Maharashtra (1999) 8 SCC 257, and Gurbax Singh versus State of Haryana (2001) 3 SCC 28.] 20. The language of Section 50 of the Act is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond - 7 - doubt by the Constitution Bench in Baldev Singh’s case (supra). 21. The above being the position, the instant case has to be scanned in the light of the well settled legal parameters. 22. At the relevant time, PW8 ASI Liaq Ram, Additional SHO was heading police party. He came across the accused around 5.45 p.m., coming on his motor cycle from the side of Amarwati Apartments. On seeing the police, he got perplexed. He stated that on the basis of suspicion, personal search of the accused was conducted and in that process, he recovered a red colour packet kept concealed by the accused under the jacket worn by him which contained 350 grams charas. In cross-examination, he stated that he entertained suspicion on the basis of his experience that the accused was possessing some illegal thing, but did not suspect the narcotic drug or the psychotrophic substance. Admittedly, he did not record reasons for such suspicion. This part of his statement requires deep consideration. By merely saying that he suspected something “illegal” in the possession of the accused, could also be the narcotic drug or psychotrophic substance. What was the basis to presume by the said police officer - 8 - that the accused might not be having such a substance, is not known. The possession of the narcotic drugs or psychotrophic substance without a valid permit/licence is also an ‘illegal thing’. Since the police Officer entertained suspicion about having been in possession of some ‘illegal thing’ which even could be an offensive matter under the Act. In my opinion, against the above factual background, before the accused was searched, PW8 Liaq Ram aforesaid was under obligation to comply with the provisions of Section 50 of the Act in terms of the judgment of the apex Court rendered in Vijaysinh Chandubha Jadeja versus State of Gujarat (2011) 1 SCC 609. Once such an option, as required under the aforesaid provision is given to the accused, thereafter the accused may or may not choose to exercise the right provided to him under the said provisions. In the instant case, there has been breach of the compliance of mandatory provision of Section 50 of the Act. Thus, the finding of the learned trial Court that it was a case of a chance recovery is wrong also for the reasons that the search of the accused was made only on getting suspicion of having some ‘illegal thing’ which could also be a contraband under the Act. - 9 - Therefore, the accused deserves to be acquitted on this score alone. 23. The above position apart, the conviction of the appellant has to be set aside for want of legal evidence to connect the accused with the offence charged. It is evident from the record that after recovery and seizure of the alleged contraband, it was produced before S.I. Dharam Singh PW7. He re- sealed the case property with the seal producing impression ‘T’ and deposited it in the Malkhana with PW6 MHC Achhar Singh. He made its entry in the Malkhana Register, the extract of which is Ext. PW6/B. 24. According to PW8 Achhar Singh, after re- sealing of the case property, it was produced before the JMIC, Nalagarh and he issued the certificate Ext. PW8/C but this fact has not been substantiated by PW7 S.I. Dharam Singh. Even the certificate Ext. PW8/C issued by the Judicial Magistrate does not mention as to who had produced the case property before the Court and what was the request made and whether the inventory by the concerned officer was prepared, what is the date of production of such case property and when such certificate was issued by him, though there is a mention in the certificate Ext. PW8/C that three specimen seal - 10 - impression ‘T’ and three specimen seals of ‘P’ on two different small pieces of cloth were also produced, appears to be a futile exercise by the Magistrate, but however, no such seals were produced before the Court during the trial. There is only seal of impression ‘T’ on a piece of cloth Ext. PW7/C which also does not bear signatures of the Magistrate authenticating the said seal, on the case property. Sample Seal ‘P’, which is also alleged to have taken on the NCB forms was not produced during the trial. Even the entry of abstract in the Malkhana does not show the deposit of sample of such seal by the police officer aforesaid. 25. Further there are three notes appended against the entry of this FIR in the Malkhana register one of which shows that on 5.12.2009 these parcels were handed over to ASI Geeta Ram to comply with the provisions of Section 52-A which means that the case property was produced before the Magistrate concerned on 5.12.2009 by ASI Geeta Ram and after doing the needful, it was re-deposited on the same day by him. Third note again says that the parcels SR-1, II,III were sent through RC No. 105/2009 to the Forensic Science Laboratory for its examination on 7.12.2009 through constable PW5 - 11 - Sher Singh to which he deposited on the same day in FSL Junga. What is pertinent in the above notes is that it refers to more than one parcel having been withdrawn from the Malkhana and thereafter its taking to the Laboratory for analysis, whereas there is mention of only one parcel in the RC Ext. PW6/C. The said RC also does not refer about taking the sample of seal of ‘P’ to the Laboratory. There is also no reference in the certificate Ext. PW8/C issued by the Judicial Magistrate that the case property was produced by ASI Geeta Ram and it was handed over back to him. Even ASI Geeta Ram was not examined during the trial, for the reason best known to the prosecution. 26. Further, there is no explanation, under whose orders ASI Geeta Ram had withdrawn the case property from the Malkhana and who produced it before the Magistrate and what was the request made in writing by him to the Magistrate. 27. Thus, in the above circumstances, the case property is proved to have changed many hands till it reached Laboratory for analysis. The prosecution is obliged to prove that it remained in tact throughout till it reached the laboratory and the prosecution is also obliged to examine - 12 - every person/official who handled the case property, including samples from its recovery till it was deposited, to overrule the possibility of its tampering, failing which the link cannot be said to have been completed. Thus, the accused is entitled to benefit of doubt. In this behalf reliance can be placed upon a judgment of the apex Court in The State of Rajasthan versus Daulat Ram AIR 1980 SC 1314. 28. Therefore, for the reasons aforesaid, in my considered opinion, the conviction and sentence passed by the learned trial Court is unsustainable. Accordingly it is set aside. Consequently, the appellant is acquitted of the charge framed against him, as the prosecution has failed to prove the case against the accused beyond reasonable doubt. 29. The matter stands disposed of. Send down the records. May 19, 2011 (Surinder Singh),J. 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