1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 226 of 2002 Decided on July 8, 2011 State of H.P. …Appellant. Versus Rakesh Chander @ Babbi ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. ¹Whether approved for reporting? For the appellant: Mr. R.K. Sharma, Senior Addl. Advocate General, with Mr.Rajinder Dogra, Addl. Advocate General. For the respondent: Mr. Ramesh Sharma, Advocate, vice Mr.N.K. Thakur, Advocate. Surinder Singh,J. (oral) The present appeal by the State has been directed against the acquittal of the respondent passed by the learned Trial Court on 19.12.2001 in Sessions Trial No.32 of 2001, for the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short the Act) allegedly for keeping in possession 100 grams of charas kept hidden in the wall of Khokha (temporary shop) of the respondent. 2 2. We have heard the learned counsel for the parties and have carefully gone through the record. 3. In short, the prosecution case can be stated thus. On 1.5.2001, PW.12, Sub Inspector Surinder Sharma, Incharge CIA, Mehatpur, had detailed constable Ranjit Singh of CIA to collect information with respect to narcotics. He alongwith Head Constables Kuldeep Kumar, Hoshiar Singh, Kamal, Constables Subhash Chand, Sher Bahadur and Vipin Kumar, were on patrolling and present near Rupsi hotel, Mehatpur-Nangal road. He got an information that the respondent has been dealing in narcotics in his Khokha at Mehatpur, from constable Ranjit Singh, aforesaid, which was reduced into writing (Ex.PA) and this information in the form of rukka (Ex.PF) was sent through Constable Subhash Chand to S.P. Una. He also sent the rukka, through constable Vipin Kumar to Police Station, Una for registration of the case. Thereafter, the police party, headed by Sub Inspector Surinder Sharma, proceeded Mehatpur and on the way associated Sh.Sat Pal (PW.2) and Arun Kumar (not examined). Thereafter, the party raided Khokha-shop of the respondent, where he was found present. The police informed him the purpose of their visit and also that he as well as his shop is required to be searched as they suspect him having narcotic in his possession. Option was given to him to satisfy the 3 requirement of Section 50 of the Act. He agreed to render himself to be searched by the police party and to this effect he also made the endorsement in writing on memo (Ex.PC). 4. The police party render themselves to be searched by the accused, but nothing incriminating was recovered, to this effect memo (Ex.PD) was executed. Thereafter, SI Surinder Sharma (PW.12), conducted search of the Khokha-shop of the respondent and recovered a plastic envelope containing 100 grams of charas from the wall of Khokha. Two samples of 10 grams each were separated and sealed with seal impression 'O' and the remaining quantity was sealed in the same envelope with same seal. The sample of seal was taken separately on a piece of cloth and the seal after its use was handed over to Sat Pal (PW.2). The case property was taken into possession vide seizure memo (Ex.PE) in the presence of aforesaid independent witnesses. 5. The police prepared site plan (Ex.PO) of the place of alleged recovery. The case property and the accused were produced before SI Des Raj (PW.6). He resealed the case property with seal impression 'Z' and deposited the same with MHC Manmohan Singh (PW.4). One of the sample parcels was sent for the chemical examination to CTL Kandaghat through LHC Kishori Lal 4 (PW.5), to which he deposited on the same day i.e. 3.5.2001. As per report of the Chemical Analyst (Ex.PQ) the sample so sent, tested positive for charas. 6. After completing investigation, challan against the respondent was presented in the Court for the aforesaid offence and he was put on trial. At the end acquitted by the learned trial court on the ground that the link evidence in the instant case is not complete. 7. The prosecution is under obligation to prove that right from the time its seizure upto the time when sample reached the laboratory for its examination, it was not tampered with, by anyone and remained intact. The prosecution must bring the evidence to this respect with reasonable certainty excluding every chance of tampering with samples, but in the instant case, in our considered opinion, the prosecution has failed to discharge its onus. 8. Sh.Sat Pal (PW.2) to whom the seal is stated to have been entrusted by the Investigating Officer, turned hostile. He denied having handed over the seals to him. Further SI Des Raj (PW.6) has materially contradicted the prosecution case that after resealing, he handed over the case property to MHC Manmohan Singh (PW.4) on the same day i.e. 1.5.2001, though this fact has been admitted by PW.4 aforesaid, but he stated that after its receipt he deposited the case property on 3.5.2001 in the malkhana 5 where he had kept the case property w.e.f. 1.5.2001 till 3.5.2001 is not known. The reason, for this delay, has also not been explained by him. Even the abstract of malkhana register has not been placed and proved on record. Had the abstract of malkhana register been produced and proved, it would have thrown some light on the truthfulness of the prosecution case. Further, the original seal 'Z' with which the resealing procedure was completed by SI Des Raj (PW.6) was also stated to have been handed over to MHC Manmohan Singh (PW.4). If that being so then in the event when the case property remained for three days with MHC Manmohan Singh alongwith original seal which was not even produced during trial of the case, the possibility of tampering with the case property cannot be ruled out. 9. Also we find that the Khokha-shop of the respondent is an open place and the place from where the alleged recovery was made is a wall of that temporary shed being visited by many persons, even the possibility of its planting by any person, can also not be ruled out. Further the prosecution also failed to prove the knowledge of the respondent with respect to the situs of recovery to connect him. Therefore, the acquittal of the respondent, in the above circumstances cannot be interfered with. 6 10. The State appeal sans merit, hence dismissed. 11. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. Send down the records. (R.B. Misra) Judge July 8, 2011 (Surinder Singh) (Purohit) Judge