1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 229/2002 Decided on July 26, 2011 State of H.P. …Appellant. VERSUS Jarnail Singh ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Addl. AG with Mr. Rajinder Dogra, Addl. AG For the respondent: Mr. Tara Singh Chaunan, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 27.12.2001 passed by learned Sessions Judge, Bilaspur, HP in Sessions Trial No. 13 of 2001, thereby acquitting the respondent / accused for the offence under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short called ‘NDPS Act’) 2. The prosecution case is that on 22.4.2001 at about 11.30 AM, when the accused was coming from the side of village Dher and was going towards Majari village, he was apprehended by Chamel Whether the reporters of the local papers maybe allowed to see the judgment? 2 Singh, SHO, Police Station, Kot in presence of two independent witnesses, namely, Harpal Singh and Surjit Singh as well as in presence of other police officials. On apprising of his right to be searched, accused was searched and a polythene bag was taken out from his custody from which 550 gms of ‘Charas’ was recovered. Thereafter two samples each weighing 25 grams were taken out from the said ‘Charas’ and the remaining ‘Charas’ were put in three separate cloth parcels which were sealed with seal ‘A’. A ruqa was sent to the Police station, Kot and in that reference, FIR was registered and after investigation, accused/respondent was charged of the aforesaid offence. 3. In order to prove its case, prosecution has examined as many as seven prosecution witnesses, whereas, through his statement under Section 313 Cr.P.C, accused/ respondent denied the prosecution case. 4. (PW-1) Harpal Singh, an independent witness, however, has denied the prosecution case and has also denied that during search, any recovery of ‘Charas’ was made from the accused, PW-1 was declared hostile. (PW-2) Paramjit Singh has stated that he was running a shop at Majari and was doing the business of toffee and biscuits and was not keeping scales and weights. PW-2 has further stated that he was not taken by the police at the spot and has not supplied the weights and measures to the police. As such, PW-2 has not supported the prosecution case. (PW-3) ASI Prem Chand has stated that he received special report on 22.4.2001 being a Reader of S.P. Bilaspur, which he placed before the S.P as Ext PG. (PW-4) HC Siri Ram, after receiving ruqa, had recorded the FIR. In his cross 3 examination, he has stated that he officiated MHC on 22.4.2001 and 23.4.2001. The entry regarding the case property was made by the SHO in the malkhana register on 22.4.2001 and the key was handed over to SHO on 23.4.2001. (PW-5)/ HC Sher Singh has stated that sample was sealed with seal ‘A’ and RC No was 35/2001. SHO had delivered the sample to him for taking the same to CTL, Kandaghat. (PW-6) SI Kamal Kishore has stated that SHO Chamel Singh, PS Kot Kehloor and HC Raghubir Singh, Constable Dev Raj, Constable Dalat Ram, and Constable Rajnit Singh while on patrol duty near Gurudwara of Majari village associated Harpal Singh and Surjit Singh as independent witnesses and they apprehended the accused/respondent and took out the polythene bag from his custody, from which 550 grams of ‘Charas’ were recovered. Two samples each of 25 grams were taken from the ‘Charas’ and thereafter the samples and the remaining ‘Charas’ were put in three separate cloth parcels and the parcels were sealed with seal ‘A’. 5. As per the testimony of PW-6, the accused was apprehended on the road near Gurudwara, however, he was unable to say if the accused was apprehended at a distance of 10 feet from the Gurdwara towards Majari side. (PW-7) Inspector/SHO Chamel Singh has stated in support of the prosecution case that on apprehending accused/respondent, polythene bag was taken out from his custody and ‘Charas’ in the form of sticks and tablets were recovered from inside the polythene bag and after weighing, ‘Charas’ was found 550 gms. Two samples each of 25 gms were taken from the ‘Charas’ and thereafter the samples were put into two separate cloth parcels and the remaining ‘Charas’ was also put into separate parcels and all the 4 parcels were sealed with seal ‘A’. One sample was sent to Chemical Examiner, Kandaghat through LHC Sher Singh and thereafter report of the Chemical Examiner was received vide Ext PM. Challan was prepared and was submitted to the Court. Incriminating article, as per testimony of PW-7 was brought in the police station and was kept inside in malkhana. However, nothing is emanating that resealing was made or any separate seal was put on the sample sent for chemical examination. PW-7 has simply stated that one sample was sent to chemical examination. Facsimile was not prepared. It has also not been emanating from the testimony of PW-7 or other prosecution witnesses that ‘NCB Form’, if any prepared on the spot, was sent along with case property and was kept in malkhana and ‘NCB Form’ along with RC certificate and sample was sent to chemical examiner. It has also not been divulged from where the weights and measures were arranged as PW-2 has very categorically stated that he did not supply the weights and measures for weighing. On analysis of ‘NCB Form/Ext PK, it appears the same was prepared on 24.4.2001. However, at one go at serial No.1 with the same pen ink and handwriting, FIR was mentioned and in serial No.5 some interpolation was made for ‘22’ in the date 22.4.2001. 6. On analysis of the prosecution witnesses and materials on record, we find that two independent witnesses, at the time of search and seizure, have not supported the prosecution case and, as such, link evidence is also missing. The correctness of NCB Form is also doubtful. 7. In these circumstances, the prosecution cannot indicate the definite place of search and recovery of contraband 5 goods. Therefore, in our considered view, the prosecution has miserably failed to prove its case beyond reasonable doubt and has failed to bring home guilt to the accused. We find no scope for interference in the impugned judgment of the trial court. The criminal appeal, being devoid of merit, is accordingly dismissed. 8. Bail bonds, furnished by the accused/respondent, are hereby discharged. ( R.B.Misra ), J. 26th July, 2011 (V.K. Sharma ), J. (sl)