IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.195 of 2005 Decided on: July 24, 2008. Roshan Lal …Appellant Versus State of Himachal Pradesh …Respondent Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. M.S. Guleria, Advocate. For the Respondent : Mr. P.K. Sharma, Additional Advocate General with Mr. P.M. Negi, Dy. Advocate General. Surjit Singh, Judge (oral) This appeal has been filed by a convict from jail. He being a poor person, unable to engage a counsel, on account of lack of money, made a request, incorporated in the grounds of appeal itself, for appointment of a counsel for him at State expense. When the matter was listed on the previous date, we appointed Shri M.S. Guleria, Advocate, as his counsel. 2. Appellant has been convicted of an offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/-; in default of payment of fine to undergo rigorous imprisonment for a Whether reporters of the local papers may be allowed to see the judgment? …2… further period of two years, by the trial Court, for allegedly being in possession of 10.800 Kgs of Charas. 3. According to prosecution, appellant was apprehended at a place called Laharu within the area of Police Station, Chowari, on 13.4.2004, around 7.35 AM, when he appeared from Laharu bridge side and tried to run away. It was in a Khad where he was overpowered. He was carrying a bag with him. Search of that bag was conducted in the presence of two independent witnesses, namely PW-2 Pramod Singh and PW-3 Som Singh, who were already accompanying the police people. Police party was headed by PW-12 ASI Ranjeet Singh of CIA Staff, Chamba. In the course of search of his bag, Charas was recovered, which on weighment, was found to be 10.800 Kgs. Three samples, each weighing 25 grams, were separated. All the three samples and the bulk stuff were made into separate parcels, which were sealed with a seal that produced the impression of letter ‘T’ of English alphabet. Three impressions of that seal were put on each of the three sample parcels. Search and seizure memo. was prepared. Report of search and seizure was drawn and sent to Police Station, Chowari, for formal registration of the case. Soon, PW-14 SI Prem Chand, Additional SHO, Police Station, Chowari, reached the spot. Further investigation of the case was taken over by him. All the four parcels, three containing samples and one containing bulk stuff, were handed over to PW-14 SI Prem Chand by PW-12 ASI Ranjit Singh, who resealed the parcels with a seal that produced impression “A”. …3… Three impressions of the seal were put on each of the sample parcels. Thereafter the case property was deposited with PW-8 MHC Deepak Kumar. One of the three samples was sent by PW-8 Deepak Kumar to Chemical Laboratory at Kandaghat through PW-9 Constable Manjeet Singh. Chemical Examiner, vide report Ext.PW14/D, opined that the sample tested positive for cystolithic hair and Beam’s alkaline test and it contained resin to the extent of 28.80% and so it contained contents of Charas. On receipt of the aforesaid report, appellant was sent up for trial. 4. Trial Court charged the appellant with offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act and on his pleading not guilty, put him on trial. 5. Prosecution examined two independent witnesses and three police officials, to prove the allegation of recovery of Charas from the bag of the appellant. Two independent witnesses turned hostile. They instead of supporting the prosecution case testified the defence plea, which, per statement under Section 313 Cr. P.C., is that the appellant was travelling by a bus, when the police intercepted him at a place called Kakira and then brought him to Laharu where the stuff alleged to be Charas was planted upon him. 6. On conclusion of trial, appellant was convicted and sentenced by the trial Court, as aforesaid. …4… 7. We have gone through the record and heard the learned counsel for the appellant as also the learned Additional Advocate General. 8. First submission, which has been made on behalf of the appellant, is that defence plea taken by the appellant in his statement, under Section 313 Cr. P.C., is corroborated by the two independent witnesses, namely PW-2 Pramod Singh and PW-3 Som Singh. We are not impressed by the submission for two reasons, both of which are quite strong. The first is that no suggestion was thrown to the Investigating Officer and the other police officials, on the lines of aforesaid defence plea, when they were cross-examined. The second one is that the independent witnesses stand contradicted by their previous statements, under Section 161 Cr. P.C., with which they were duly confronted. 9. Next submission is that the sample that was analyzed by the Chemical Examiner and with respect to which he gave report Ext.PW14/D does not stand connected with the stuff allegedly recovered from the appellant. He drew our attention to NCB Form Ext.PW12/A, particularly its columns No. 6 and 7(b). According to column No.6, the sample that was sent to the Chemical Examiner for analyses, bore two different seal impressions, one impression read like letter “A” of English alphabet and the other like “T” of the same alphabet. Number of seal impressions “A” was two. The number is written in word. According to column No.7 (b), number of seal impressions “A” was three. This is written in …5… figure. Initially, the number was written as two, but someone by interpolation made it to read three. Interpolation has not been authenticated by anybody nor did the Investigating Officers, namely PW-12 ASI Ranjit Singh or PW-14 SI Prem Chand explain who changed the figure from two to three by interpolation. 10. A bare look at the entries appearing against column Nos. 6 and 7 (b) of NCB Form Ext.PW12/A makes it plainly clear that the sample parcel, which was sent to the Chemical Examiner, was sealed with two different seals. It bore three impressions which read like letter “T” of English alphabet and two impressions like letter “A” of the same alphabet. 11. Case of the prosecution is that all the three sample parcels were sealed with two seals, which produced the impressions of letters “T” and “A”, and the number of impressions of both the seals on three sample parcels was three each. That means, the sample parcel that was sent to the Chemical Examiner, was different from the three samples of recovered stuff, because it bore two impressions of seal “A”, whereas according to prosecution story, as testified by PW-14 SI Prem Chand and Memo. Ext.PW4/A regarding resealing, he put three impressions of his seal “A” on each of the three sample parcels. 12. In view of the above stated position, we hold that report Ext.PW14/D of Chemical Examiner does not stand connected with any of the three samples, which were taken …6… from the stuff allegedly recovered from the appellant. If it is so, it cannot be said that the stuff recovered from the appellant was in fact Charas. Hence, the appeal is accepted. Judgment of the trial Court convicting and sentencing the appellant is set aside. Appellant being in custody, serving out the sentence awarded by the trial Court, is ordered to be set at liberty, forthwith, in case his detention is not required in any other case. ( R.B. Misra ), J. July 24, 2008, (ss) ( Surjit Singh ), J.