IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. : 67 of 1997 Decided on : 02.06.2010. ___________________________________________________________ State of Himachal Pradesh … Appellant. Versus Ludhyan Singh … 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. Ashwani Pathak, Advocate. ___________________________________________________________ V.K. Sharma, Judge. The State is in appeal against the judgment of acquittal, dated 29.8.1996, of the learned Additional Sessions Judge, Mandi, District Mandi, 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 October 28, 1995, at about 7.30 PM , PW-9 Inspector/SHO Ravinder Singh, was present at Bus Stand Mandi. He was accompanied by other police officials, namely, ASI Dhyan Singh, PW-4 and constable Chaman Lal, PW-5. In the meantime, he received secret information to the effect that one person wearing ‘khaki 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 jacket’ was proceeding towards Sabzi Mandi. He was having with him two bags containing ‘charas’. On this, PW-9 Inspector/SHO Ravinder Singh, ran towards that side and caught hold of him in front of the shop of M/s Jagdish fruit company. On being confronted, the said person (accused) disclosed his name as Ludhyan Singh, son of Bhagat Ram, resident of Sadhyani. He was taken inside Shop No.10 in the presence of independent witnesses Som Raj Yadav (not examined) and Mahesh Kumar, PW-3, besides ASI Dhyan Singh. At this juncture, further case of the prosecution is that the accused was served with notice under Section 50 of the NDPS Act, to the effect that whether he wanted to be searched by Inspector/SHO Ravinder Singh or by some Gazetted Officer of Police/Judicial Magistrate. The accused volunteered to be searched by PW-9 Inspector/SHO Ravinder Singh and made a statement in writing to this effect. Accordingly the search followed. In one of the bags of ‘jamni’ colour being carried by the accused one cap, one towel, one under-wear, one shirt, pajama, one Bunian, one pair of shoes, two shaving razors and a Borolene tube, were recovered. However, search of the second bag which was of blue colour and on which the inscription was ‘VIP’ and `Air India’ and was having a small lock of ‘Klike’, the key whereof was produced by the accused led to recovery of one pant, shirt and one khakhi jarsi, below which one sleeping bag was also kept inside the bag. It was found to contain 11 plastic bags, in which charas was kept. When weighed, the recovered charas was found to be 10 kg. 600 gms. Two samples for chemical examination were taken out 3 of the recovered contraband. Thereafter the bulk of charas and samples were sealed separately with seal bearing impression ‘A’. Specimen of the seal used during the proceedings was also prepared. The remaining articles from the two bags belonging to the accused were also taken into possession and sealed separately. On completion of the codal formalities on the spot, the case property was deposited in the Police Station with Addl. MHC Hukam Singh (PW-1). Special report Ex.PA was sent to the Addl. Superintendent of Police, Mandi, on the same day. FIR Ex.PK was recorded on the basis of rukka Ex.PJ, sent by PW-9 Inspector/SHO Ravinder Singh from the spot. 3. Sample of charas was sent for chemical examination to CTL Kandaghat and report Ex.PZ was obtained. It contained the following opinion:- “I am of the opinion that the exhibit contains contents of charas.” 4. On completion of investigation, charge-sheet for the offence under Section 20 of NDPS Act, was laid against the accused, who stood already arrested and he was sent up to face trial. 5. On being charged, the accused did not plead guilty and claimed to be tried. The prosecution evidence followed. It has examined nine witnesses in all. 6. On close of the prosecution evidence, the accused was examined under Section 313 of the Code of Criminal Procedure, 1973. While admitting that consequent upon his personal search carried out in the presence of witnesses the articles such as 4 torch, currency notes etc. were taken into possession by the police, the remaining incriminating circumstances appearing against him in the prosecution evidence have been replied by the accused either as “I do not know” or “ it is incorrect”. However, in answer to question No. 29 of the statement, he has submitted the following reply:- “I came from Aut in HRTC Bus to Mandi and after un- boarding the Bus, I was carrying my bag on my shoulder which was of ‘Jamni colour’ and I went for vomiting and when I was vomiting, I heard some noise from Banjar-Delhi Bus which came in the mean time at Bus Stand, Mandi and ASI Dhian Singh came down from that Bus with a bag of khakhi colour in his hand and he came to me and asked as to whether the bag belong to me. I replied that bag was not owned by me. On this ASI took me to shop No. 10 in Sabzi Mandi and I was kept out and ASI went inside the shop and my Jamni colour bag was also taken by the ASI inside the shop. My Jarsi, jacket and socks were also removed and taken inside an done constable was posted with me while some thing was done by them inside the shop. Jacket was returned to me but Jarsi was not returned. No notice of being searched in the presence of Magistrate or Gazetted Officer was ever given to me. This false case has been framed against me.” 7. However, the accused did not lead any evidence in defence. 8. 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. 9. 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. 5 10. It is in evidence in the statement of PW-9, Inspector/SHO Ravinder Singh, the Investigating Officer that at the relevant time the police party headed by him was present at Bus Stand Mandi in connection with routine patrolling. In the meantime, he received information that one person wearing khakhi jacket and carrying two bags containing charas had gone towards Sabzi Mandi side. On this, he along with police party ran towards that side and found the person wearing khakhi uniform with bags in front of Shop No. 10 in Sabzi Mandi Paddal, Mandi. At the end of his deposition as PW-9, Inspector/SHO Ravinder Singh has stated that information regarding receipt of secret information could not be given to his superior officer as there was likelihood of the accused running away, if he was not apprehended immediately. Thus, taking into consideration the totality of the facts and circumstances of the case, it can be safely concluded that it was a case of chance recovery and as such it was not incumbent upon the police officer (PW-9 Inspector/SHO Ravinder Singh) to have taken down in writing the factum of receipt of secret information. Thus, provisions of Section 42 of the NDPS Act, were not applicable in this case. 11. Further more, since it was not a case of personal search and instead the alleged contraband was recovered from one of the two bags being carried by the accused, Section 50 of the NDPS Act, was also not attracted. However, it shall be pertinent to observe that such notice was served upon the accused and the same is Ex.PB, which though cannot be construed to disclose the legal right of the accused to be searched in the presence of ‘the nearest Gazetted Officer of any of the departments 6 mentioned in Section 42 or the nearest Magistrate’. However, this aspect of the matter remains only in the realm of academic discussion and is not relevant for the purpose of disposal of this appeal, as Section 50 of the NDPS Act, was not at all applicable in the facts and circumstances of this case. 12. As per the prosecution, two independent witnesses were joined during search and seizure leading to the alleged recovery of huge quantity of charas weighing 10 kg. 600 gms from the accused. Out of them, only one namely Mahesh Kumar was examined, who did not support the case of prosecution and was declared hostile and the other Som Raj Yadav, was given up as allegedly having been won over by the accused. The learned trial court proceeded to acquit the accused mainly on the ground that one of the independent witnesses, namely, Som Raj Yadav, was not examined by the prosecution and the other PW-3 Mahesh Kumar, did not support the prosecution version. However, in view of catena of authoritative judicial pronouncements rendered by the Hon’ble Apex Court as also by this Court from time to time that even if independent witnesses do not support the prosecution case, conviction can be safely based on the testimony of official witness, if the same is found to be otherwise cogent, reliable and trustworthy. On this count, the impugned judgment dated 29.8.1996, is seriously flawed. 13. It is also by now settled that the provisions of Section 57 of the NDPS Act, are directory in nature. In this case, special report Ex.PA, under Section 57 of the Act, is stated to have been sent to the Addl. Superintendent of Police, Mandi, District Mandi, on the day of occurrence, that is, 28.10.1995, itself. Though, 7 special report Ex.PA does not contain any endorsement about receipt thereof by or in the office of Addl. Superintendent of Police, Mandi, yet affidavit Ex.PH of Shri Ganesh Dutt Bhargav, Addl. Superintendent of Police, Mandi, H.P. to this effect has been brought on record. 14. PW-2, HC Prem Chand, has also stated that on 29.10.1995, Shri G.D. Bhargav, Addl. Superintendent of Police, called him to his residence and handed over special report of this case (FIR No. 523/95) to him. It was kept by him in safe custody. He has produced and proved the same as Ex.PA. However, an incongruity has crept during his cross examination, wherein, he has stated that his statement under Section 161 Cr.P.C was recorded on 19.1.1996. Though, he has denied that he made a supplementary statement on 19.1.1996 that Addl. Superintendent of police called him to his residence on 29.1.1996, yet when confronted with portion A to A of his supplementary statement (though not exhibited but is on record), it was found that the date mentioned therein is 29.1.1996. In further cross examination, he has denied that the special report was made in January, 1996. It appears that in the supplementary statement of PW-2 HC Prem Chand, recorded on 19.1.1996, the date with regard to the Addl. Superintendent of Police, calling him to his official residence was incorporated as 29.1.1996, instead of 29.10.1995, inadvertently, as otherwise it cannot be imagined by any stretch of imagination that in supplementary statement recorded on 19.1.1996, there could be a mention about the Addl. Superintendent of Police calling this witness to his official residence on 29.1.1996, which was 8 admittedly later in point of time to the recording of the supplementary statement of this witness under Section 161 Cr.P.C on 19.1.1996. This aspect of the matter has also been clarified by PW-8 SI Tulsi Ram. PW-1 HC Hukam Singh, has also stated that the special report was given by him to the Addl. Superintendent of Police, Mandi, on the next day, that is, 29.10.1995, at his residence at about 8.00 AM. 15. However, even despite the above aspects of the matter, the prosecution has not been able to lead satisfactory evidence to establish the link between the sample of charas allegedly recovered from the accused and report of the Chemical Examiner EX.PZ. The reasons to arrive at this inference are set out hereinafter. 16. Though, PW-9 Inspector/SHO Ravinder Singh, has stated that “the case property including sample sealed was deposited with MHC Hukam, Singh”, yet the latter, who at the relevant time was working as Addl. MHC has stated that “SHO Ravinder Singh deposited two samples sealed with seal `A’ and one packet sealed with seal `A’ containing charas which were entered by him in register No. 19 at Sr. No. 1481”. He has nowhere stated that seal impression Ex.PG was also deposited by PW-9 SI/SHO Ravinder Singh with him along with the case property. He has further stated that “pulanda sample sealed with seal `A’ was sent to Chemical Examiner, Kandaghat, vide RC No. 108/95, dated 31.10.1995 through constable Mani Ram No. 527.” However, it shall be pertinent to notice that he has nowhere stated that along with the sample of charas, he had also sent seal impression of the seal used during the proceedings 9 connected with search and seizure and the consequent recovery of the alleged contraband from one of the two bags carried by the accused at the time of his apprehension by the police, to CTL Kandaghat, through constable Mani Ram No. 527. 17. Similarly, PW-6, C. No. 527 Mani Ram, has simply stated that “on 31.10.1995, Additional MHC Hukam Chand handed over sample sealed with seal `A’ to me with R.C. No. 108/95, which I took to Kandaghat and handed over the same intact in the office of Chemical Examiner, Kandaghat and the receipt on R.C was taken and thereafter, R.C. was deposited with the MHC.” However, he has also nowhere stated that along with the sample seal impression of the seal used during the proceedings was also handed over to him by PW-1 HC Hukam Singh (the then Addl. MHC) and that he had deposited the same in the laboratory along with the sample of charas. 18. The report of the Chemical Examiner Ex.PZ, contained in form NCB-I, is required to be considered against the above backdrop. Column No. 8 thereof and the relevant entry against the same are to the following effect:- “8. Facsimile of the seal – One sample of seal `A’ on cloth bearing 3 seals as specimen of seal used.” Though Column No. 8 is typewritten, the entry against the same is handwritten. Seal impression `A’ is also handwritten, meaning thereby that exact facsimile of the seal stated to have been used to seal the sample of charas and bulk thereof has not been affixed/incorporated against Column No. 8 of Form NCB-I, 10 which contains report of the Chemical Examiner, CTL Kandaghat Ex.PZ. In such situation, the recital in the lithographic stamp affixed on the report of the Chemical Examiner Ex.PZ is to the effect that “certified that the sample is sealed with Ten seals of impression “A” and the seal/seals on the sample tallied with the specimen impression of seal sent separately” is of no consequence to complete the chain to establish that sample of charas analyzed vide report Ex.PZ is that of charas, allegedly recovered pursuant to the search and seizure in question. 19. To arrive at the above conclusion reliance is placed on State of Rajasthan vs. Gopal, 1998 (8) SCC 449; Mahant Bal Giri and another vs. State of H.P., 2008 (1) Shim.LC 455; Roshan lal vs. State of H.P., 2004 Latest HLJ H.P. 968 and Vineh Kumar Kamlesh Kumari vs. State of H.P., 2008 (3) SLC 364. 20. In view of the above, we do not see any merit in the present appeal though entirely on different premises from that of the learned trial court arrived at vide impugned judgment dated 29.8.1996, which is accordingly dismissed. (R.B.Misra) Judge. (V.K. Sharma) Judge. 2nd June, 2010. (lsp)