IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No.: 646 of 1996. Decided on: 24.04.2010. __________________________________________________ State of Himachal Pradesh. … Appellant. Versus Inder Singh. …Accused/Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the petitioner : Mr. Vivek Thakur, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For the Respondent : Mr. Malay Kaushal, Advocate. Deepak Gupta, J (Oral). This appeal by the State is directed against the judgment dated 26.4.1996 delivered by the learned Additional Sessions Judge, Shimla in Sessions Trial No.16-S/7 of 1995 whereby the accused was acquitted of having committed an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”). 2. The prosecution case in brief is that on 6th March, 1994, PW-9 A.S.I. Gianthu Ram was on patrolling duty alongwith Head Constable Gulab Singh and Constable Kamlesh Kumar in village Kakoie. The villagers of this village informed them that the accused is dealing in 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - contraband substances. On receipt of such information, PW-9 formed a raiding party and associated PWs.-1 to 3 as independent witnesses. Accused was loitering in the village. He was apprehended and his search was conducted. He was carrying a bag slung across his shoulders. From this bag one polythene packet was recovered which contained opium. The opium was weighed and found to be 310 grams. A sample of 10 grams was drawn. The sample as well as the bulk opium were put in separate packets and sealed with seal “P”. Thereafter PW-9 prepared rukka Ex.PW-7/A and sent the same alongwith case property to Police Station, Rohru through Constable Kamlesh Kumar. The accused was arrested. According to PW-9, the accused was also found in possession of scale Ex.P-3. The sample was later sent to the Chemical Examiner and the Chemical Examiner opined that the sample was of opium. Therefore, the accused was challaned for having committed an offence punishable under Section 18 of the Act. 3. The learned trial Court acquitted the accused mainly on the ground that the provisions of Section 42 and 50 of the Act have not been complied with. In our opinion, both these provisions are not attracted in the present case. It may be true that this is a case of prior information, but admittedly, the recovery was made from the accused from a public place and therefore, provisions of Section 42 of the Act would not be attracted. 4. So far as Section 50 is concerned, the opium was recovered from the bag and not from the personal search of the accused and, therefore, provisions of Section 50 would not be attracted. - 3 - 5. Even if we ignore the provisions of Sections 42 and 50 of the Act, the accused has to be acquitted mainly on the ground of inconsistencies in the statements of witnesses and the fact that the report of the Chemical Examiner, Ex.P-X has not been linked with the contraband seized from the accused. The independent witnesses PWs-1 and 2 have partly supported the prosecution, but have partly turned hostile. Though they state that the opium was recovered from the accused, but they have not supported the prosecution fully in regard to the manner in which the recovery was made. According to PW-9, scale Ex.P-3 was recovered from the accused. Even according to PW-2, scale was recovered from the accused, but according to PW-3, the police called for the scale from him and he states that the scale Ex.P-3 belongs to him. However, even if we discount these contradictions in the statements of independent witnesses, we can not believe the statement of the official witness. Out of the members of the raiding party, only PW-9 appeared in the witness box. The prosecution, for the reasons best know to it, did not examine the other official witnesses who formed the raiding party, i.e. Head Constable Gulab Singh and Constable Kamlesh Kumar. 6. Admittedly, it was Constable Kamlesh Kumar, who carried the case property alongwith rukka to the police station. This case property was deposited in the police station only on 7th March, 1994, i.e. on the next day. Therefore, it was imperative for the prosecution to have examined Constable Kamlesh Kumar to prove that the parcels remained intact and were not tampered with when they were in his possession. According to PW-7, H.C. Dula Ram, on 7th March, 1994 Constable Kamlesh Kumar deposited two sealed packets bearing seal “P” with him. - 4 - He kept those packets and on 9th March, 1994 he produced both the packets before the S.H.O., PW-8 Rikpa Giacho, who then resealed both the packets with seal “H”. Surprisingly, this witness in his examination- in-chief has not even stated that between 7th March and 9th March, 1994 when the packets remained in his custody, they were not tampered with. He also does not state where he kept the packets for the two days. 7. The witness is also totally silent as to in whose custody the case property was kept after 9th March, 1994. PW-8 also states that on 9th March, 1994, the case property was produced before him by PW-7 and he resealed the same. He is also totally silent as to in whose custody this case property was kept after 9th March. There is no evidence on record to show in whose custody and in what condition the case property was kept from 9th March till 25th June, 1994. There is inordinate delay of more than 3 months in sending the sample. It has also not been proved in whose custody and in what condition the case property was kept for this entire period. 8. PW-6, Constable Dev Raj stated that on 25th June, 1994 PW-7, H.C. Dula Ram handed over one sealed packer to him, which he deposited with the office of Chemical Examiner, Kandaghat on the same day and thereafter he deposited the receipt and the road certificate with PW-7, H.C. Dula Ram. Neither the receipt from Malkhana register nor the R.C. has been proved. PW-6 does not state that he carried any seal impression with him. Therefore, it is not clear that with which seal the Chemical Examiner compared the seals on the packets as has been mentioned by the Chemical Examiner in his report. - 5 - 9. In view of the above facts, we are of the considered view that the prosecution has miserably failed to link the report Ex.P-X with the contraband seized from the accused. Therefore, we find no merit in the appeal and the same is accordingly dismissed. Bail bonds furnished by the accused-respondents stand discharged. (Deepak Gupta), Judge. (Rajiv Sharma), Judge. April 24, 2010. (sck).