IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 53 of 1996 Decided on : 6th October, 2009 State of H.P. …Appellant. Versus Gian Chand and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent: Mr. Rakesh Jaswal, Advocate. Surjit Singh, Judge (Oral) State has appealed against the judgment dated 14th October, 1994 of learned Sessions Judge, Una, whereby respondents Gian Chand, Rajinder Kumar, Sanjeev Kumar and Ravi Dutt, who were charged with and tried for offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, have been acquitted. 2. Prosecution case, which led to the trial of the respondents, may be summed up thus. On 20th October, 1992 around 12.30 a.m., when PW-2 Inspector Sita Ram, SHO, Police Station, Sadar Una, alongwith PW-1 SI Kishori Lal and some other police officials, was present at a place called Teuri Bridge on Una-Amb Road, in connection with routine patrolling, a Maruti Van (Taxi) bearing registration No. Whether reporters of the local papers may be allowed to see the judgment? …2… HPY-1470, appeared from Amb side. It was got stopped for checking. One polythene bag, green coloured, containing Charas like stuff was found, under the rear seat, which was occupied by respondents Gian Chand, Sanjeev Kumar and Ravi Dutt. Respondent Rajinder Kumar was in driver’s seat. The stuff smelt like Charas. It was seized. On weighment, it was found to be 500 grams. 10 grams Charas was separated by way of sample. The sample and the bulk Charas were made into two separate parcels, which were sealed with a seal that produced impression of English letter ‘A’. Report of the matter was drawn and sent to the Police Station for registration of the case. Both the parcels, containing the bulk stuff and the sample, were deposited with PW-3 MHC Raj Kumar, who affixed his own seal, which produced the impression of English letter ‘K’. Sample was sent to Chemical Examiner, who opined its contents to be of Charas. 3. Prosecution examined Inspector Sita Ram Parmar as PW-2 and a police official accompanying him, namely Kishori Lal as PW-1, to prove the search and seizure. To connect Chemical Examiner’s report Ext. PE, with the recovered stuff, prosecution examined PW-3 MHC Raj Kumar and tendered affidavit of Constable Puran Chand, who carried the sample to Chemical Laboratory. 4. Respondents took the plea that nothing was recovered from the van and that as a matter of fact, when they were present near Police Lines, Una, at a tea stall, PW-2 Inspector Sita Ram asked them for carrying him to Amb and …3… when they did not oblige him, he falsely implicated them in this case. 5. Learned trial Court held that independent witnesses had not been associated nor had any explanation been offered for not associating independent witnesses. Also, it was observed that provision of Section 52-A had not been complied with. Relying upon a seizure memo. Ext. DA, per which search of the van was again conducted, when it was parked outside the Police Station and a bag emitting strong smell of Charas was recovered, trial Court has observed that the defence plea cannot be said to be improbable. With these observations respondents have been acquitted. 6. We have heard the learned Assistant Advocate General as also the learned counsel for the respondent and gone through the record. 7. From the record, we find that as per testimony of PW-2 Inspector Sita Ram Parmar and PW-1 Kishori Lal, also a police officer, sample was separated from the recovered Charas on 20th October, 1992, but the NCB Form Ext. PE shows that the sample had been drawn on 2nd November, 1992. Reference may be made to entry against column No.5, which pertains to the date of drawal and despatch of sample. Learned Assistant Advocate General submits that this is the date of despatch of sample and not of its drawal. The submission cannot be accepted, because both, MHC Raj Kumar, in his deposition as PW-3 and Constable Puran Chand, in his affidavit Ext. PH, have testified that the sample was …4… handed over to Puran Chand for being taken to the laboratory on 5.11.1992 and he delivered the same to the concerned official of the laboratory on 7.11.1992. Therefore, the date 2.11.1992, mentioned against column No.5, aforesaid, has to be taken to be the date of drawal of the sample. This entry against column No.5 of Ext. PE renders the testimony of PW-1 SI Kishori Lal and PW-2 Inspector Sita Ram Parmar, about the drawal of the sample on the spot on 20th October, 1992, highly doubtful. It may be stated that NCB Form Ext. PE is prepared and signed by PW-2 Inspector Sita Ram Parmar. 8. Again, according to the NCB Form Ext. PE, facsimile of the seals, used in sealing the sample parcel, had not been affixed on the form, but only letters ‘A’ and ‘K’ were written in hand. It is not the case of the prosecution that specimen seal impressions were sent to Chemical Examiner, on some separate piece of cloth or paper. If that is so, Chemical Examiner was not in a position to compare the seal impressions on the parcel, with the specimen seal impressions. However, the Chemical Examiner has appended a certificate, which is in the form of impression of a rubber stamp, that the seal impressions on the sample parcel tallied with the specimen seal impressions received, separately. In the report of the Chemical Examiner, there is no description of the seal impressions, found on the parcel or the specimen impressions received, separately. 9. Also, we notice that in the NCB Form Ext. PE there are conflicting references about the number of seal …5… impressions on the sample parcel. Against column No.6, it is mentioned that the parcel bore two seal impressions, which read like English letter ‘A’ and one impression of seal, which read like English letter ‘K’, but in column No.7(b) it is mentioned that the parcel bore one seal impression ‘A’ and one seal impression ‘K’. 10. The above stated position clearly demonstrates that the report of the Chemical Examiner Ext. PE does not stand connected with the stuff, allegedly recovered from the respondents. Hence, the appeal is dismissed. (Surjit Singh), J October 6, 2009(ss) (Surinder Singh), J.