IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 87 of 1995. Judgment reserved on: 17.4.2009 Date of decision: 22nd April, 2009 State of H.P ..Appellant Versus Nagu Ram ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice V.K.Ahuja, J. Whether approved for reporting ? No For the appellant: S/Shri Ram Murti Bisht and Rajesh Mandhotra, Dy.Advocate Generals For the respondent: Mr.Lalit Sharma, Advocate _____________________________________________________ Deepak Gupta, J. This appeal is directed against the judgement of the learned Additional Sessions Judge, Mandi, District Mandi in Sessions Trial No. 25 of 1993, decided on 2.6.1994 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter, referred to as the ‘NDPS Act’). Briefly stated the facts of the case are that on March 28, 1993 PW/10 Chaman Lal, SHO, Police Station, Sundernagar was on Mela duty alongwith PW/4 LHC Dharam Chand and left the Police Station to go to Bhojpur where a fair was being held. When they reached Chatrokhari chowk at about 1.45 p.m., they met PW/1 Sh.R.S.Negi, Dy.S.P. All of them proceeded to Bhojpur. When they were near the PWD workshop, the accused was seen walking ahead with the bag Ext.P/1 on his shoulder. On seeing the police party, the accused got scared and tried to run away. This aroused the suspicion of the police officials and the accused was apprehended. In the meanwhile, PW/2 Krishan Chand was coming from the side of Chatrokhari chowk in his auto rickshaw. He had two passengers, i.e., Surinder Pal who is Head Constable in the CID and one Pardhan Ram Dass. They were stopped by the police party and associated with the search. Thereafter, the bag Ext.P/1 was searched. Inside this bag Ex.P/1, another cloth bag Ext.P/3 was found. This contained Charas sticks. LHC Dharam Chand was sent to bring a scale which he brought. Thereafter, the charas was weighed and found to weigh 1 kilogram and 950 grams. Two samples of 50 grams each were separated and sealed in parcels Ext.P/4 and Ext.P/5 with seal ‘H’. The remaining charas was sealed in separate parcel Ext.P/2 with the same seal. The entire case property was taken into possession vide memo Ext.PW-1/A which bore endorsement of PW/1. Other formalities were completed and information was sent to the concerned officials. Thereafter, the case property was deposited by Chaman Lal with MHC Gurdas Ram PW/3 on the same date. One sample Ext.P/4 was sent to the Forensic Science Laboratory, Bharari, Shimla on March 31, 1993 by MHC Gurdas Ram through PW/9 LHC Durga Dass who deposited the same there on April 2, 1993. Report Ext.PW-10/D was received wherein it was found that the sample contained charas and the resin content was found to be 40.2 per cent. On the basis of the aforesaid investigation, the Challan was filed and the accused was charged for having committed the aforesaid offence. The accused pleaded not guilty and claimed trial. After trial, the accused has been acquitted. Hence the present appeal. The accused has been acquitted mainly on two grounds. Firstly that the provisions of Section 50 have not been complied with and secondly, Surinder Pal to whom the seal was given was not examined and, therefore, the link evidence is missing. As far as the first point is concerned, the law by now is clear that when the search of the bag is conducted then the provisions of Section 50 are not attracted. Reference need only be made to the latest judgment of the Apex Court in State of Haryana Vs. Mai Ram (2008) 8 SCC 292 wherein it has been clearly held that when the contraband substance is recovered from the bag which is carried by the accused, it is not a case of personal search and non-compliance of Section 50 will have no effect. However, as far as second point is concerned, we find that though by itself the non-production of the seal and the non-examination of Surinder Pal may not have been sufficient to acquit the accused, there is other link evidence which is totally missing. PW/10 the Investigating Officer states that the specimen impression of the seal Ext.PW-10/A was taken. According to him, he deposited the case property at Police Station, Sundernagar with the MHC. He however, does not state whether specimen seal impression was handed over to the MHC or not. PW/3 Gurdas Ram who was posted as MHC at the relevant time states that he had brought the original Malkhana Register and that Inspector Chaman Lal had deposited three sealed parcels sealed with Seal ‘H’ alongwith bag Ext.P/1. There is no mention of any seal impressions having been deposited. He further states that on 31.3.1993 he had sent one sample parcel duly sealed through Constable Dugra Dass to F.S.L., Bharari, Shimla. PW/9 LHC Durga Dass who took the sample to Forensic Science Laboratory, Bharari states that PW/3 had handed over a sealed parcel to him vide R.C. No.168/93. He does not make any mention about any other documents or seal impressions being sent alongwith this parcel. None of these witnesses state that the sample seal impression was sent to Shimla. If the sample seal impression was not sent, the public analyst could not have compared the samples on the packet with the sample seal impression. In this case, it is important to note that no NCB form was prepared. This by itself may not be fatal to the prosecution but this creates a doubt since the seal impression would have been affixed on the NCB form. For reasons best known to the prosecution though the Malkhana register was produced, its abstract has not been got exhibited. The Road Certificate has not been produced. These documents would have indicated as to what was sent by Head Constable Gurdas Ram through LHC Durga Dass. Adverse inference will have to be drawn against the prosecution in view of the non-production of the relevant documents. When all these missing factors are taken into consideration together and considered with the non- examination of Surinder Pal and the non-production of the seal, it creates a doubt that the parcels could have been tampered with. In this case, the parcels were not resealed when they were deposited in the Malkhana. Resealing is not mandatory and the provisions of Section 55 of the Act are only directory as held by the Apex Court. However, there is no explanation why resealing was not done. If all the missing links are considered together, a doubt is created that the parcels could have been tampered with. The benefit of such doubt must go to the accused. Even with regard to the recovery, there are certain contradictions in the statements of the witnesses. According to PW/1 Dy.S.P R.S.Negi, the accused was apprehended by PW/10 Chaman Lal and PW/4 Dharam Chand. However, PW/4 states that the accused was apprehended by PW/1 Dy.S.P R.S.Negi. The stand of PW/10 Investigating Officer is that he and Constable Dharam Chand caught the accused and thus, there are two contradictory versions in this regard. According to the prosecution, a three wheeler came from Chatrokhari side and thereafter PW/2 Krishan Chand, driver of the three wheeler was associated with the investigation alongwith Ram Dass and Surender Pal. Krishan Chand states that the accused had been apprehended even before he reached the spot and a number of people had already been there. Why none out of these people were not associated has not been explained? Keeping in view all the aforesaid contradictions, we feel that a doubt has been created with regard to the recovery and benefit of doubt has to be given to the accused. We, therefore, dismiss the appeal of the State and uphold the judgment of acquittal passed by the trial court though on different grounds. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge April 22, 2009 (V.K.Ahuja) (m) Judge