IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. : 28 of 1996. Reserved on : 16.6.2010. Decided on : 23.7.2010. ___________________________________________________________ State of Himachal Pradesh … Appellant. Versus Kushal Chand alias Kushalu … Respondent. ___________________________________________________________ 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, Addl. Advocate General with Mr. Vikas Rathore, Deputy Advocate General. For the respondent : Mr. Paresh Sharma and Mr. Shivank Singh Panta, Advocate. ___________________________________________________________ V.K. Sharma, Judge. The State is in appeal against the judgment of acquittal, dated 8.11.1994, of the learned Additional Sessions Judge, Kullu, District Kullu, H.P., whereby the respondent, herein, who shall hereinafter be referred to as the accused, was tried for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘the Act’), was ultimately acquitted. 2. In brief, the case of the prosecution is that on May 27, 1994 a police party headed by Shri Jai Pal (PW10), Dy. S.P. (CID), Shimla and comprising of Inspector Kahan Singh (PW7), SI Sham Lal and HC Anil Kumar (PW5) etc. was on patrol duty at Aut. There 1 Whether reporters of the local papers may be allowed to see the judgment? 2 PW10 Dy.S.P. Jai Pal received secret information at about 11.45 A.M. that one person was coming carrying charas from the side of H.P.P.W.D Rest House at Banjar and that if raid was conducted, charas could be recovered from his possession. Accordingly, the police party proceeded to Khundan Mod near Banjar town and associated Prakam (PW3) and Krishan Chand (PW6) as independent witnesses. While the police raiding party was waiting at Khundan Mod, allegedly accused Kushal Chand came there from the side of H.P.P.W.D Rest house and on seeing the police party tried to escape . He was apprehended by the police. The accused was carrying a bag on his right shoulder. He was informed by PW10 Dy.S.P. Jai Pal that it was suspected that he might be in possession of charas and that his personal search was required to be conducted. He was informed vide memo Ex.PW3/A that he could offer his search either to him or to another gazetted officer or before a Magistrate, to which the accused replied that he was prepared to give his search including that of his bag to him. Accordingly, search of his bag was conducted by Dy.S.P. Jai Pal (PW10). During search, charas in the form of sticks was recovered from his bag contained in two polythene packets. It was weighed on the spot and found to be 4 kg. 50 gms. Two samples of 30 gram each were separated from the same and sealed in separate parcels with seal `A’. The remaining charas was also sealed in a separate parcel with the same seal on the spot. The three parcels were accordingly taken in possession vide memo Ex.PW3/B. Specimen impression of the seal was taken on Ex.PW10/A and the seal after use was handed over to PW 3 Prakam vide memo Ex.PW3/C. The charas Ex.P1 and one parcel of sample Ex.P2 were deposited with HC Lot Ram (PW2) at Police Station, Banjar on the same day. The third parcel was taken to Shimla by the police party. PW10 Dy.S.P. Jai Pal sent rukka Ex.PW2/A to the Police Station, Banjar, for registration of the case, on the basis of which FIR Ex.PW3/B was registered. Site plan Ex.PW10/B was prepared on the spot by PW10 Dy.S.P. Jai Pal. He sent special report Ex.PW9/A through V.H.F set to the S.P.(CID) and DIG (CID), H.P., Shimla through constable Tej Ram (PW9), Police Station, Aut. Such message was recorded in Ex.PW8/A in the office of the Addl. D.G.P (CID), H.P. Shimla by HC Sher Singh (PW8). It was sent on May 28, 1994. The message/special report was accordingly placed before the S.P. (CID) and Addl. D.G.P (CID), H.P. Shimla, on May 28, 1994. One parcel of the samples which had been taken to Shimla by the police raiding party was deposited by HC Anil Kumar (PW5) on May 31, 1994 with the Chemical Testing Laboratory, Kandaghat from where report Ex. PW4/A was received to the effect that the sample was that of charas. 3. On completion of investigation, charge-sheet for the offence under Section 20 of the Act, was laid against the accused, who stood already arrested and he was sent up to face trial. 4. On being charged, the accused did not plead guilty and claimed to be tried. The prosecution evidence followed. It has examined ten witnesses in all. 4 5. On close of the prosecution evidence, the accused was examined under Section 313 of the Code of Criminal Procedure, 1973 wherein while admitting that he was apprehended and arrested by the police, he denied all other incriminating circumstances appearing against him in the prosecution evidence. The specific defence set up by him in answer to question No.19 of the statement is as under: “On 27.5.94, I was coming from my house to Banjar town on foot. A person was going ahead me at a distance of about 15-20 paces. He saw the police party and ran away. The police party apprehended me in his place and took me to the police station, where the present case was falsely made out against me. I am innocent.” 6. However, the accused did not lead any evidence in defence. 7. On conclusion of the trial the accused was acquitted of the charge, as already noticed. Being aggrieved, the State is in appeal before this Court. 8. We have heard the learned Additional Advocate General and Dy. Advocate General, for the appellant-State and learned counsel for the accused and perused the record. 9. The accused has been acquitted by the learned trial Court mainly on three fold grounds. Firstly, that since it was a case of prior information, it was incumbent upon PW10 Dy.S.P. Jai Pal to have taken down such information in writing and send a copy thereof to his immediate superior within 72 hours and since it was not done, there was violation of the mandatory provisions of Section 42 (1) and (2) of the Act which alone entitles the accused 5 for acquittal. Secondly, though it has been held that the provisions of Section 57 of the Act are directory, yet since the report of arrest and seizure sent by PW10 Dy.S.P. Jai Pal under the said section was not a full report of all the particulars of such arrest and seizure and was also not proved to have been received or placed before his immediate official superior, it has also materially prejudiced the case of the accused entitling him to acquittal. Lastly, since both the independent witnesses, namely PW3 Prakram and PW6 Krishan Chand did not support the prosecution version, the uncorroborated testimony of the official witnesses, PW7 Inspector Kahan Singh and PW10 Dy.S.P. Jai Pal could also not be made the basis for returning a finding of guilt against the accused. 10. However, we are of the considered view that taking into consideration the settled legal position on the subject, none of the grounds pressed into service by the learned trial Judge for acquitting the accused can stand judicial scrutiny. The reasons to arrive at this inference are as follows. 11. First and foremost, PW10 Dy.S.P.Jai Pal, who had conducted the search and seizure was a gazetted Officer. It being so, in the first instance, the provisions of Section 42 of the Act were not applicable and on the other since admittedly the seizure and arrest was in a public place, the said section was not at all applicable in the facts and circumstances of the present case. To this effect is the law 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. 6 12. Now, while adverting to the second ground of acquittal relating to prejudice having been caused to the accused on account of non-observance of the provisions of Section 57 of the Act, it would be seen that the provision itself is directory in nature and as such, even if such information as contained in wireless message Ext. PW8/A, a copy whereof has also been brought on record as Ext. PW9/A, is not detailed one, at the same time it can also not be said that it does not contain the relevant particulars of such arrest and seizure and further that whereas PW9 Constable Tej Singh has stated that the wireless message was transmitted by him to the Superintendent of Police and Deputy Inspector General (CID), Shimla on 28.5.1994, that is, the day next after the occurrence, PW8 HC Sher Singh has stated that wireless message Ext. PW8/A was received in the State CID Control Room, it was placed before Dy.S.P. Kulwant Rai, who had produced the same firstly before the S.P.(CID) and thereafter to Additional DGP (CID) on that very day, that is, 28.5.1994. In such situation, non- examination of Dy.S.P. Kulwant Rai would not be of much consequence. 13. In so far as the third ground of acquittal that in the absence of corroboration from independent witnesses who did not support the prosecution case and were declared hostile and that nothing tangible could be extracted out of them even during cross- examination by the learned Public Prosecutor, the testimony of the official witnesses was liable to be rejected out-rightly is concerned, suffice it to say that the testimony of the official witnesses if otherwise found to be free from any blemish cannot be together 7 discarded merely because the independent witnesses did not lend support to the case of the prosecution. 14. However, even despite that the learned counsel for the accused have supported the impugned judgment of acquittal on two fold grounds. Firstly, that there are material contradictions between the two official eye witnesses examined by the prosecution, namely PW-7 Inspector Kahan Singh and PW10 Dy.S.P. Jai Pal, which cast a serious doubt on their veracity and cannot be lightly overlooked. To illustrate, whereas PW7 Inspector Kahan Singh has stated in the opening lines of cross-examination that the police party had reached Aut at about 11.00 a.m. and thereafter, at Banjar at about 12.00 O’ Clock. However, in utter contrast, PW10 Dy.S.P. Jai Pal has stated in the beginning of the cross-examination that the secret information was received by him at Aut between about 11.45 a.m.–12.00 O’ Clock and the police party had reached Banjar at about 12.30 p.m. Even if the contradiction between the timings of arrival and receipt of secret information by the police at Aut and thereafter its arrival at Banjar is taken out of consideration on the ground that the timings have been stated by PW7 Inspector Kahan Singh and PW-10 Dy.S.P. Jai Pal on approximation, another aspect of the matter for which there is no explanation coming forth is that whereas as per prosecution, charas weighing 4 kg. 50 grams was recovered from the accused out of which two samples each weighing 30 grams were taken out for chemical examination, PW1 Sushil Kumar has stated that on asking of a police constable, he had provided scales and two weights of 1 kg and 500 grams, respectively and the same were 8 returned to him after sometime. Apparently, the scales and the weights so made available by PW1 Sushil Kumar were used by the raiding party for weighing the contraband allegedly recovered from him and the two samples each weighing 30 grams extracted out of the same. However, it is not understandable as to how the two samples said to be weighing 30 grams each were weighed with weights of 1 kg and 500 grams, respectively. 15. Secondly, there is no credible link evidence to connect the sample analysed vide report of the Assistant Chemical Examiner CTL, HP, Kandaghat Ext. PW4/A with the bulk of the contraband allegedly recovered from the accused and to establish that the same was in fact charas. Though PW10 Dy.S.P. Jai Pal has stated that the impression of the seal used was taken which is Ext. PW10/A and he had deposited the case property with MHC Police Station, Banjar. However, PW2 HC Lot Ram who at the relevant time was posted as MHC, Police Station, Banjar has no where stated that seal impression Ext. PW10/A was also deposited with him. Further more, PW2 HC Lot Ram has also stated that on 27.5.1994 when PW10 Dy.S.P. Jai Pal had deposited two sealed parcels with him sealed with seal ‘A’, he was also officiating as SHO, Police Station, Banjar at that time as the regular SHO was out of station. He has further stated that he had re-sealed the aforesaid parcels Ext.P1 and Ext. P2 with seal ‘Police Station Seraj’. However, seal impression of the seal used during the proceedings connected with re-sealing of the aforesaid samples, that is, ‘Police Station Seraj’ is neither shown to have been prepared nor brought on record. 9 16. PW4 Shri V.K. Sharma, Assistant Chemical Examiner, CTL, HP at Kandaghat has also not stated anything about receipt of seal impression ‘A’ in the laboratory. Similarly, PW-5 LHC Anil Kumar, who had taken the sample to the laboratory at Kandaghat has though stated that on 31.5.1994 a sealed parcel of sample in the present case was handed over to him by PW-7 Inspector Kahan Singh which he had delivered at CTL, HP, Kandaghat on the same day, yet he has also not stated anything about handing over of the seal impression to him or delivery thereof by him in the laboratory. 17. NCB Form-cum-Report of the Assistant Chemical Examiner, Ext. PW-4/A does not contain facsimile of seal said to have been used during the proceedings, that is, ‘A’. It being so, the certificate appended to the report of the Assistant Chemical Examiner Ex. PW4/A that the seal/seals on the sample tallied with the specimen impression of seal sent separately is of no consequence to complete the chain in evidence to establish that the sample of charas analysed thereunder was that of the contraband allegedly recovered from the accused during the search and seizure in question. 18. To arrive at this conclusion, reliance is placed on 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. 10 19. On the two counts, as above, we do not see any merit in the present appeal, though entirely on different premises from that of the learned trial Court, which is accordingly dismissed. (R.B.Misra) Judge. (V.K. Sharma) Judge. July 23, 2010. (cr) 11 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A No. : 28 of 1996. Reserved on: 16.6.2010. Decided on___________. ___________________________________________________________ State of Himachal Pradesh. … Appellant. Versus Kushal Chand alias Kushalu. … Respondent. ___________________________________________________________ Judgment for consideration, please. (V.K. Sharma) Judge. I agree/do not agree. (R.B. Misra), Judge. List for pronouncement of judgment on____________. (R.B. Misra) Judge. Court Master.