IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.694 OF 2001 (OLD NO.699/1998) Lochan Singh ……… Appellant Versus The State ……… Respondent Dated: November 30, 2009 Sri Sandeep Tandon, learned counsel for the appellant Sri Amit Bhatt, learned Addl. G.A. for the State HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 25.3.1998 passed by Vth Additional Sessions Judge, Nainital in Special S.T. No.156/1991, whereby the learned Vth Additional Sessions Judge convicted the accused/appellant under Section 20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as the Act) and sentenced him to undergo rigorous imprisonment for a period of ten years with a fine of Rs. One Lac. It was also directed that in default of payment of fine, the accused/appellant shall further undergo simple imprisonment for a period of six months. 2. Heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that on 26.2.1990 Sri D.P. Juyal, S.H.O. alongwith S.I. Sri Harish Chandra Singh, S.I. Prithvi Singh and Const. Surendra Kumar were busy in patrolling duty by government vehicle. At about 10:45 PM when they reached at Sitarganj Road they saw a person coming from near Lohia bridge, who was carrying a bag in his hand. As the police party 2 asked to stop him, he ran away from there. Then the police party surrounded the person and apprehended him. On being asked, he disclosed his name as Lochan Singh (present accused/appellant). On making search by the police party, about 2 Kg Charas was recovered from his bag. The accused/appellant was arrested on the spot telling him the reason of his arrest i.e. for the recovery of the illegal Charas. The bag containing the Charas was sealed on the spot and the specimen of seal (NAMOONA MOHAR) was taken. With the same averments, the recovery memo Ext.Ka-1 was prepared on the spot and on the basis of the recovery memo, the First Information Report was lodged at P.S. Khatima on 27.2.1990 at 01:38 AM by Sri D.P. Juyal, S.H.O. On the basis of this F.I.R., Chik F.I.R. (Ext.Ka-2) was prepared by Constable Trilok Chand. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-3. Initially, the investigation of this case was entrusted to PW4 S.O. S.D. Tripathi but lateron it was transferred to Randhir Singh. Sample of the Charas for the chemical examination was not taken on the spot, but later on the sample of the Charas was sent to the chemical examination to the Forensic Lab, Agra vide letter dated 7.9.1990. The Assistant Director, Forensic Lab, Agra has submitted the report dated 17.11.1990, which is Ext.Ka-6. During the course of investigation, the I.O. recorded the statements of the witnesses and prepared the site-plan Ext.Ka-4 of the place of occurrence. On completion of the investigation, the I.O. submitted the charge sheet Ext.Ka-5 against the accused/appellant u/s 15/20 of the Act. 4. Learned IIIrd Addl. Sessions Judge, Nainital framed the charge for the offence punishable under Section 20 of the Act against the accused/appellant. The charge was read over and explained to the 3 accused/appellant to which he pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution examined PW1 Sri D.P. Juyal, S.H.O., who was the leader of the team at the time of the recovery of the said Charas, PW2 Harish Chandra Singh and PW3 Prithvi Singh, witness of the recovery and PW4 S.D. Tripathi, I.O. of the case. 6. After that the statement of the accused/appellant was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who has denied the allegations made against him. However, in defence, he did not produce any oral or documentary evidence. 7. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Vth Addl. Sessions Judge, Nainital vide his judgment and order dated 25.3.1998 convicted and sentenced the accused/appellant as stated above. Against the said judgment and order, the accused/appellant has preferred this appeal. 8. The prosecution, to prove its case, examined PW1 Sri D.P. Juyal, who was the leader of the team when the recovery was made. He has stated that on 26.2.1990 he was posted as S.H.O. at the Police Station Khatima. On that day he alongwith police party was busy in patrolling duty. During patrolling, at about 10:45 PM when they reached near Lohia bridge at Sitarganj Road by government jeep then they saw a person coming from the side of Khatima, who was carrying a bag in his hand. When they stopped their jeep near the accused/appellant then the accused/appellant started running from there. On the suspicion, the police party apprehended the 4 accused/appellant, who disclosed his name as Lochan Singh. On making search, 2 kg Charas was recovered from the bag of the accused/appellant. After being satisfied that the recovered article is Charas, the same was kept inside the bag and was sealed on the spot. He further stated that he prepared the Fard Ext.Ka-1 on the spot. When the accused/appellant was asked about the Charas, he told that he has bought that Charas from Harbansh Singh. After the recovery, search of the house of Harbansh Singh was also made but nothing was found. Thereafter the accused/appellant was taken to the police station and a case was registered against him. He further stated that the Chik F.I.R. Ext.Ka-2 of the case was prepared by Constable Clerk Trilok Chand and the necessary entries were also made by him in the G.D. He has proved that carbon copy of G.D. Ext.Ka-3. 9. PW2 Harish Singh and PW3 Prithvi Singh are the witnesses of the recovery of the said Charas. They have corroborated the statements of the PW1 Sri D.P. Juyal. 10. PW4 S.D. Tripathi is the Investigating Officer of the case, who has stated that on 27.2.1990 he was posted as Station Officer at P.S. Sitarganj. The investigation of this case was entrusted to him. During the course of investigation, he prepared the site-plan (Ext.Ka-4) of the place of occurrence. After his transfer from the place, the investigation was then entrusted to S.H.O. Sri Randhir Singh, who has submitted the charge sheet in the case. He has proved the charge sheet Ext.Ka-5. 11. Sri Sandeep Tandon, learned counsel for the accused/appellant argued that the sample of the so-called recovery material (CHARAS) was not taken by the police 5 on the spot on 26.2.1990 and there is no link evidence to show that the sample, which lateron was sent by the police for chemical examination at Forensic Lab Agra is the sample of the same item (CHARAS) shown to be recovered from the possession of the accused/appellant on 26.2.1990. He has submitted that there is no link evidence to prove that the same Charas was kept intact in the Malkhana and that Charas was not, at all, tampered with. I find substance in the arguments of the learned counsel for the accused/appellant, due to following reasons:- (i) In the recovery memo (Ext.Ka-1) as well as in the statement of witnesses it has nowhere come that the sample for chemical examination was drawn from the recovered CHARAS and that the same was sealed separately. Only it has come that the material recovered from the possession of the accused/appellant was sealed in same bag, which reveals that no separate sample was drawn from the so-called recovery material on the spot in order to send the same for chemical examination. (ii) It is not known where the seized CHARAS was kept after it was recovered from the possession of the accused/appellant. It is also not known that who had carried it from the place of recovery to the place of storage. If it is considered that the seized CHARAS was deposited in the Malkhana then in that event also, it is not known when it was deposited in the Malkhana and when it was taken from Malkhana to produce before the court below and also to send it for chemical examination. (iii) No evidence was also adduced as to who had carried the CHARAS in question to the 6 Chemical Examiner. The said CHARAS is said to have been recovered on 26.2.1990 and the report of chemical examiner is dated 17.11.1990 from which it appears that it was received in the office of chemical examiner by means of letter dated 7.9.1990. No evidence is given to show that the seized CHARAS remained intact in the sealed bag and nobody tampered with it during the period 26.2.1990 to 7.9.1990. In view of this, it cannot be said that the same CHARAS was sent to the chemical examiner for his report which was recovered from the possession of the appellant. 12. In support of his arguments, learned counsel for the accused/appellant has cited a judgment reported in 1999 (38) ACC page-181 “Shiv Charan Vs. State” and has relied on para-6, which is reproduced hereunder:- “6. A perusal of the record of the case shows that the prosecution had not given link evidence. It is not known where the seized Charas was kept after it was recovered from the possession of the appellant. It is also not known that who had carried it from the place of recovery to the place of storage. No evidence was also adduced as to who had carried the Charas in question to the Chemical Examiner. The said Charas is said to have been recovered on 11.10.1990 and the report of chemical examiner is dated 26.08.1991 from which it appears that it was received in the office of chemical examiner by means of letter dated 5.11.1991. No evidence is given to show that the Charas in question remained intact in the sealed bag for a period of more than one year i.e. from 11.10.1990 to 5.11.1991. In view of this, it cannot be said that the same Charas was sent to the chemical examiner for his report 7 which was recovered from the possession of the appellant. Hon’ble the Supreme Court in the case of Valsala Vs. state of Kerala, has held that in the absence of link evidence, the conviction under the N.D.P.S. cannot be sustained.” 13. He has further cited a judgment “State of Rajasthan Vs. Gurmail Singh” reported in 2005 SCC (Cri) 641 and has relied on Paras-3, 4 and 5, which are reproduced hereunder:- “3. ...we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20.5.1995, the malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW 6 on 5.6.1995. We further find that no sample of the seal was sent alongwith the sample to the Excise Laboratory, Jodhpur 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 were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent. 4. We find no error in the judgment of the High Court. 5. This appeal is, therefore, dismissed.” 14. Learned counsel for the accused/appellant has further cited a judgment reported in 2005 (1) U.D.-727 of Hon’ble the Division Bench of this High Court “Mr. Harman Chrust Vs. State” in which reliance is placed on para-25, which is reproduced hereunder:- “25. Another point, which creates suspicion about the authenticity of the prosecution story, it that the recovery and seizure has not been made 8 in accordance with the standing instruction no.1/88 dated 15.03.1988 issued by the Narcotics Control Bureau, New Delhi. Clause 1.9 of the Instructions reads as under:- “1.9 It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, Panchnama witness and seizing officer and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the; duplicate of each of the samples. The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop may be sealed properly. Such sealed envelop may be marked as original and duplicate. Both the envelops should also bear the S.No. of the package(s) container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seal should be legible. This envelope alongwith test memos should be kept in another envelope which should also be sealed and marked “Secret-Drug sample/Test Memo” to be sent to the concerned chemical laboratory.” 15. Reliance is also placed on Clause 2.9 Standing Order no.1/89, which is reproduced as under:- “2.9. The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop which may be sealed properly. Such sealed envelop may be marked as original and duplicate. Both the envelops should also bear the No. of the package(s) container(s) from which the sample 9 will also have a reference of the test memo. The seal should be legible. This envelope alongwith test memos should be kept in another envelope which should also be sealed and marked “Secret-Drug sample/Test Memo” to be sent to the chemical laboratory.” 16. Thus from the above-said discussion and the judgments (supra), the prosecution has not proved its case against the accused/appellant beyond reasonable doubt that the sample sent for the chemical examination was taken from the CHARAS shown to be recovered on 26.2.1990 from the possession of the accused/appellant. The case of the prosecution is not proved by the link evidence that the said CHARAS, shown to be recovered from the possession of the appellant/accused on the alleged date i.e. 26.2.1990, was the same CHARAS which was sent for chemical examination. 17. Learned counsel for the appellant/accused has further argued that though the recovery was made at the public place and the place falls on the busy road, but no public witness was shown in the recovery memo. Although it is not necessary that in each and every case public witnesses are required to prove the alleged recovery and it depends on the facts and circumstances of each and every case, but in the present case in hand, as the recovery was made on the public road where in each and every time public witnesses are easily available, but by not making effort to collect public witnesses at the time of the alleged recovery, creates reasonable doubt in the prosecution case. 18. He has further submitted that compliance of Section 57 of the Act was not made at the time of making the arrest. Section 57 of the Act is reproduced as under:- 10 “57. Report of arrest and seizure:- Whenever any person makes any arrest or seizure, under this Act, he shall within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.” 19. In the recovery memo and in the Chik First Information Report or in the oral evidence it has not come that after the arrest and seizure within 48 hours next after the said arrest or seizure, the report of the said purpose was made to the immediate superior officers. Though the compliance of this provision is not mandatory but it is directory. In this regard, reliance is placed on the judgment of “Gurbax Singh Vs. State of Haryana” reported in (2001) 3 Supreme Court Cases 28. Para-9 of this judgment is reproduced hereunder:- “9. ...It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, IO has admitted that seal which was affixed on the muddamal article was handed over to the witness PW1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the NDPS Act. The prosecution has not led any evidence whether the chemical analyzer received the sample with proper intact seals. It creates a doubt whether the same sample were sent to the chemcial analyzer. Further it is apparent that the IO has not followed the procedure prescribed under Section 57 of the NDPS Act of making full report 11 of all particulars of arrest and seizure to his immediate superior officer...” 20. Thus from the evidence discussed above, the prosecution has also failed to prove compliance of Section 57 of the Act. 21. Having given careful submissions made by learned counsel for the parties and in the light of the evidence and in the background of well-settled proposition of law, it is clear that the prosecution has failed to prove the case against the accused/appellant beyond reasonable doubt. The trial court was in error in brushing aside serious infirmity in the prosecution case. 22. Accordingly, the appeal is allowed. The appellant/accused Lochan Singh is acquitted from the charge levelled against him. The judgment and order dated 25.3.1998 passed by Vth Additional Sessions Judge, Nainital in Special S.T. No.156/1991, is hereby set aside. Consequently, the conviction and sentence as directed by the court below, which has been discussed above, is also set aside. The appellant is on bail. He needs not to surrender unless wanted in any other case. 23. Let the lower court record be sent back. (Dharam Veer, J.) 30.11.2009 RG