IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 208 of 2005 Soban Singh …Appellant Versus State of of U.P. (Now Uttarakhand) …Respondent With Criminal Jail Appeal No. 124 of 2008 Soban Singh …Appellant Versus State of of U.P. (Now Uttarakhand) …Respondent Present: Mr. B.S. Parihar, learned counsel for the appellant. Mr. Nandan Arya, learned A.G.A. for the State/respondent. Hon’ble Nirmal Yadav, J. The above mentioned appeals have been preferred by the accused appellant against the judgment and order dated 27.10.2005 passed by Sessions Judge, Bageshwar in Sessions Trial No.5 of 2005 whereby the accused appellant was convicted under section 8/20 of the N.D.P.S. Act and was sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. 1.00 lac. In default of payment of fine, he has further been ordered to undergo rigorous imprisonment for one year. Briefly stated the facts giving rise to the present appeals are that on 28.12.2004 Sub Inspector Arvind Singh 2 alongwith Constable Harish Chand, constable Davendra Singh and Constable Bhoop Singh was checking the vehicles near the water tank. During the checking, they stopped a Mahendra Jeep No.U.A.02-0301 coming from Bharadi side. Meanwhile one person carrying a bag in his hand escaped from the back door of the jeep and started walking towards the village. On suspicion, the person was chased and apprehended by the police officers at 01.30 p.m. On enquiry, he disclosed his name as Soban Singh S/o Sher Singh R/o Supee Patwari Circle Loharkhet, Tehsil Kapkote District Bageshwar. He also disclosed that out of fear, he escaped from Jeep and he was having charas in his possession. Accordingly, Policy party vide Ex-Ka-1 informed that the accused, if he so requires, has right to be searched before a Gazetted Officer or a Magistrate. However, accused stated that he has already disclosed about the Charas in his possession therefore, Officer present at the spot can search his person. During the search of a bag carried by the accused, some thing wrapped in a plastic was recovered, which found to be Charas and on weighment it was found to be 1100 grms., out of which 2 samples of 50gms each were made separately. Both samples as well as remainder were made in separate parcels with the seal of Arvind Kumar and were taken into the possession vide memo Ex-Ka-3. Copy of the memo was also handed over to the accused. On the request of accused, information about his arrest was sent to his son Pan Singh. On the basis of recovery, Chick F.I.R. was recorded on the same day at 03.00 p.m. in Police Station, Bageshwar. Samples and remainder were produced before S.H.O., P.S., Bageshwar who after checking the parcels affixed the seal of B.S. Rana on them and thereafter handed over the same to Moharir Thana Head Constable Arjun Singh. P.W.-4 Inspector Sri B.S. Rana investigated the case and thereafter sent recovered articles for Chemical examination to Forensic Science Laboratory, Agra. Chemical Examiner has submitted report dated 18.02.2005 and 3 as per the report of Chemical Examiner, sample of the alleged articles has been found to be Charas. On completion of the investigation, challan was presented. The accused was charge sheeted for the offence under section 8/20 N.D.P.S. Act to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined (PW-1) S.I. Arvind Kumar, (PW-2) Constable Pooran Chand who recorded Chick F.I.R., (PW-3) Constable Davendra Singh and (PW-4) Inspector Bachan Singh Rana, the Investigating Officer. The accused when examined under section 313 Cr.P.C., denied all the incriminating evidence put to him by the prosecution and pleaded innocence and false implication. Heard Sri B.S. Parihar, learned counsel for the appellant, Sri Nandan Arya, learned A.G.A. for the State/respondent and perused the material available on record. The trial court after taking into consideration the facts and circumstances of the case, came to the conclusion that the accused appellant is guilty under section 8/20 N.D.P.S. Act and sentenced him as mentioned in earlier part of the judgment. Being aggrieved, the appellant has filed present appeals. Learned counsel for the appellant submitted that admittedly, there were many witnesses on the spot as the police party was checking vehicles at the relevant time. When checking of Mahendra Jeep was going on, the accused escaped from the back door of the jeep. Learned counsel for the appellant referred to the statement of PW1 S.I. Arvind Kumar who has stated that there were seven passengers in the jeep including 4 driver and accused but he did not join any one of them as witness. However, he improved the statement by saying that these persons refused to join the investigation but in cross- examination, he admitted that he did not enquire about the name of any of the persons. This witness further stated that occurrence was of daytime and many persons were present on the road at that time. He further submitted that he did not take action against those persons who refused to join the investigation. Learned counsel for the appellant further argued that the prosecution has failed to prove the link evidence with regard to keeping the samples and the remainder in safe custody till the material was deposited with the Chemical Examiner. PW-2 Constable Pooran Chand was posted in Police station, Bageshwar and according to him, at about 3.00 p.m. P.W-1 S.I. Arvind Kumar had deposited the samples and remainder contraband in the police station and had also lodged the report but he did not state that alleged recovered contraband and sample recovered from the possession of accused were kept in safe custody. None of the witnesses has stated that who had carried the sample to Chemical Examiner and during the transit samples were not tampered with. Learned counsel for the appellant further argued that tempering of samples is apparent from the report of the Chemical examiner in which it is mentioned that samples having monogram of S.P. Singh UPP was received on 31.12.2004 which were sent on 29.12.2004. Learned counsel for the appellant thus argued that no one has explained as to where the samples remained from 29.12.2004 to 31.12.2004. Moreover, as per (PW-1) S.I. Arvind Kumar after the recovery, the samples were sealed with the seal of Arvind Kumar and thereafter the seal of PW-4 Inspector B.S. Rana was affixed on the samples but sample received by Forensic Science 5 Laboratory was found having seals of S.P. Singh. It is therefore argued that tampering of the parcel is glaring and apparent. On careful consideration of rival submissions of the learned counsel for the parties and evidence on record, this Court is of the view that prosecution has miserably failed to prove its case beyond reasonable doubt. It is also clear that prosecution has failed to prove as to whether samples alleged to have been recovered were actually the same which were sent to the Chemical Examiner. As per the recovery memo and statement of PW-1 S.I. Arvind Kumar and PW-4 Inspector B.S. Rana, samples were sealed with the seal of Arvind Kumar and P.W-4 Inspector B.S. Rana. However, sample received by the Chemical Examiner was having seal of S.P. Singh. Therefore, it is suffice to say that articles alleged to have been recovered from the accused have not been sent without tampering and there is no evidence on record, articles sealed have been kept in proper custody and were not tempered with. Whatever was seized from the accused appellant was not sent to the Chemical Examiner which is itself an important missing link. Another basic infirmity in the prosecution case which renders the prosecution case to be doubtful that no question was put to the accused when he was examined under section 313 Cr.P.C. that sample was kept in the safe custody and not tampered with during the period it remained in the custody of the police. Hon’ble the Supreme Court in the case of Baldev Singh Vs. State of Punjab 2005(1) Crimes 451 observed that report of Chemical Examiner can not be read into evidence in the absence of link evidence as no question was put to the accused when examined under section 313 Cr.P.C. that the sample was not tampered with while it was in custody of police. Thus in the absence of link evidence it can not be said with 6 certainty the material allegedly seized from the accused/appellant was the one sent for Chemical analysis. Hon’ble Apex Court in the case of State of Rajasthan Vs. Gurmail Singh, 2005(2) CCSC 686 also observed that no sample of the seal was sent alongwith the sample to Excise Laboratory for the purpose of comparing with the seal appearing on the sample bottles, therefore, there is no evidence to prove satisfactorily that the seals found on the samples were intact the same seal as was put on the sample bottles immediately after seizure of the contraband. In the instant case, the prosecution has miserably failed to prove that the samples alleged to have been recovered from the accused/appellant were actually the same which were sent to the Chemical Examiner for analysis. Even the seal found by the analyst on the sample is different from the seals stated to have been affixed by (PW-1) S.I. Arvind Kumar and (PW-4) Inspector B.S. Rana. Accordingly, in the absence of basic link evidence, the conviction of the accused appellant under section 8/20 N.D.P.S. Act can not be sustained. The appellant is entitled to get the benefit of doubt. I therefore, allowed these appeals, set aside the Judgment and order dated 27.10.2005 passed by Sessions Judge, Bageshwar and acquit the appellant. He shall be set at liberty forthwith unless required or wanted in some other cases. (Nirmal Yadav, J.) JKJ 23.07.2010