IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b) Description of the Case. Criminal Appeal No. 195 of 2007 Date of decision : 28.03.2008 A.F.R. (Approved for Reporting) Not approved for Reporting Initials of Judge Date: 28.03.2008 Note:- Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Jail Appeal No. 195 of 2007 Jagdish Gupta S/o Badri Prasad R/o Village Loddi P.S. Loddi Chattarpur Madhya Pradesh ….Appellant Versus State ……Respondent Mr. Rajesh Joshi, Amicus Curiae for the appellant. Mr. Prabhakar Joshi, Brief Holder for the State. JUDGMENT Hon’ble J.C.S. Rawat, J. This is a criminal jail appeal filed by the appellant against the judgment and order dated 07.4.2007 passed by the then Special Judge/ Sessions Judge, Almora in Special S.T. No.15/2005, whereby the Special Sessions Judge has convicted the appellant under Sections 8/20 of the N.D.P.S. Act and sentenced him to undergo RI for ten years and to pay fine of Rs.1 lakh. In default of payment of fine, the appellant shall further undergo S.I. for one year. 2. The case of the prosecution, in brief, is that on 26.02.2005, the police patrolling party headed by S.H.O. Ganga Singh PW1 was on the way to village Bhatkot. When they reached near Laxmi Hotel, they found two persons going on the road towards Hanuman Mandir Block having bags on their heads. Thereafter, the police patrolling party immediately apprehended after chasing them at about 14.50 hours on 26.02.2005. The appellant was duly informed of his right of being searched before a Gazetted Officer or a Magistrate as required under section 50 of the Act but he declined that offer. The S.H.O. Ganga Singh PW1 took his search in presence of Head Constable Kalyan Ram PW2. The appellant was found carrying 25 kg of ‘ganja’ in a bag, whereas co-accused was found carrying 20 kg of ‘ganja’ in a plastic bag. On being asked, the appellant informed that the substance was ‘ganja’ and he was bringing it from Jorasi. The same was seized by Ganga Singh PW1. Two samples of 500 grams ‘ganja’ each were prepared at the spot and remaining ‘ganja’ was intact in the bag. Thereafter, the police arrested the accused-appellant, sent the seized articles to the police station and lodged a report in this regard. The sample taken from the seized article was sent for chemical examination and it was proved to be ‘ganja’. The police investigated the matter. After completing the investigation, the police submitted the chargesheet against the appellant. (The other co- accused is not before me, as he was not convicted by the judgment impugned, as such, I am not concerned with the other co-accused in this appeal.) 3. The trial court framed charge against the accused appellant under Section 8/20 N.D.P.S. Act. The accused appellant denied the charge levelled against him and claimed trial. 4. In order to prove its case, the prosecution examined three witnesses. S.H.O. Ganga Singh PW1 and S.I. Kalyan Ram PW2 are the witnesses of the search, seizure and arrest of the appellant. Kunwar Singh Rawat PW3 is the Investigating Officer of this case. He submitted the chargesheet against the appellant. 5. The accused-appellant was examined under Section 313 of the Criminal Procedure Code. He denied that he had committed any offence. He stated that he had been falsely implicated in this case. He had further stated that he used to go from one place to another in connection with the selling of his articles and on the date of incident, he was going for the same purpose. The accused-appellant did not adduce any evidence in support of his defence. 6. The learned trial court after appreciation of the evidence convicted and sentenced the appellant as mentioned above. 7. I have heard learned counsel for the parties. I have also gone through the evidence and material on record. 8. Now, I have to examine as to whether the accused-appellant has committed any offence or not. The prosecution in support of its case examined two witnesses in whose presence the search, seizure and arrest was made. Ganga Singh PW1 was the station in- charge of the police station Dwarahat on the date of the incident. He had stated in his evidence that on the date of incident, he was on a patrolling duty alongwith other police personnel. When the patrolling party reached at Chowkhutia Chowki, the police also took H.C.-Kalyan Ram PW2 alongwith them. When the police patrolling party reached near Laxmi Hotel on the way to village Bhatkot, they saw two persons going on the road towards Hanuman Mandir Block having bags on their heads. On suspicion, the police tried to stop them, but they tried to escape from there. Ultimately, the police apprehended them at about 2.50 pm. On being asked, the appellant informed that the substance kept in the bag was ‘ganja’ and he was bringing it from village Jorasi. The appellant was duly informed of his right of being searched before a Gazetted Officer or a Magistrate as required under section 50 of the Act but he declined that offer. He asked Ganga Singh PW1 to conduct his search. The appellant was searched by Ganga Singh PW1 in presence of Kalyan Ram PW2 and the appellant was found carrying ‘ganja’ inside the bag which was opened in presence of the witnesses. Two samples of 500 grams ‘ganja’ each were taken from the recovered article at the spot and it was sent to the Forensic Science Laboratory, Agra whereby it was proved to be “ganja’. S.H.O. Ganga Singh PW1 has also stated in his evidence that the police party did not have any weighing machine at that time, as such, the quantity of the seized article was based on assumption. Kalyan Ram PW2, who was present at the time of seizure and arrest, has also corroborated the evidence of Ganga Singh PW1. 9. The learned Amicus Curiae for the appellant contended that the provisions of Section 50 of the Act which are mandatory in nature were not complied with. The learned A.G.A. refuted the contention and contended that the recovery was not made from his person, as such, the provisions contained in Section 50 of the Act would not be applicable in this case. In the instant case, it is not in dispute that the appellant was carrying a substance in a bag on his head in which the ‘ganja’ in question had been kept. I am fortified with the decision taken by the Hon’ble Supreme Court in the case of State of Himanchal Pradesh Vs. Pawan Kumar 2005 (4) SCC 350, in which it has been held that a bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word “person” occurring in Section 50 of the Act. 10. It is very much from the evidence of Ganga Singh PW1 and Kalyan Singh PW2 that the appellant was informed of his right of being searched before a Gazetted Officer or a Magistrate as required under section 50 of the Act but he declined that offer. This fact has also been mentioned in the furd prepared at the immediately after the search and arrest of the accused-appellant. It is also pertinent to mention here that Ganga Singh PW1 and Kalyan Singh PW2 have categorically stated that the appellant was informed of his legal right as provided under Section 50 of the Act. The said evidence is credible and cogent. The learned trial court after going through the entire evidence found it trustworthy. I have also gone through the evidence of the prosecution. The evidence with regard to the informing the appellant of his legal right under Section 50 of the said act is credible and cogent to that extent only. Thus, even assuming the compliance was essential, the prosecution has complied the said provision in this case. 11. The learned Amicus Curiae appearing for the appellant relied upon the judgment passed by the Hon’ble Apex Court in the case of Dilip & another Vs. State of M.P. AIR 2007 S.C. 369 in which it has been held as follows:- “17. In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the persons of the appellants were also searched, it was obligatory on the part of P.W. 10 to comply with the said provisions. It was not done.” 12. As I have discussed above that the arresting officer had informed the appellant of his legal right provided under Section 50 of NDPS Act. Thus this ruling is not applicable in this case, even if, assuming that this right would not have been informed to the appellant. In the case of Dilip (supra), the accused- appellant on being suspected that he was keeping a contraband substance of narcotics, was searched on his person and, thereafter, his scooter was searched. In the facts and circumstances of this case, the afore- mentioned dictum is not applicable in the facts and circumstances of this case. In view of the above, I do not find any force in the contention raised by the learned Amicus Curiae for the appellant. 13. The learned Amicus Curiae for the appellant further contended that the recovery of the articles is also doubtful in this case. The learned A.G.A. refuted the contention. It is in the evidence that Ganga Singh PW1 was in a patrolling duty in connection with the search and seizure of intoxicant substance. His purpose for the patrolling was specific and he has categorically stated that the GD of his ‘Rawangi’(departure) has not been produced before the court. This fact creates a doubt. If he was going to conduct a raid or search of narcotic substance, particularly at Chowkhutia which is a place quite far from Dwarahat, he should have taken the independent witness to conduct the raid and search of the intoxicant substance. He has further stated in his evidence that he also took H.C Kalyan Ram PW2 of Chowkhutia chowki with him. Chowkhutia market is a big market and he has not alleged in his evidence or anywhere in the GD that he tried to take the public witnesses from the market. In fact, he could have obtained the public witnesses from the place where he had started for patrolling or from where Kalyan Ram PW2 was taken with him. This fact also creates doubt coupled with other circumstances of this case. Though, it is a settled law that if the police proves by the credible evidence that they tried to take independent witness at the time of recovery and could not get such witnesses, then the evidence of only the police witness can be relied upon. Learned A.G.A. could not demonstrate before me that there was any evidence of the above fact on record. 14. It is also pertinent to mention here that Ganga Singh PW1 has stated in his evidence that he seized the narcotic substance from the possession of the appellant and, thereafter, it was sealed in two different packets. It is very much in the evidence that S.H.O. Ganga Singh PW1 took the seized article and the accused to the police station and at the police station, a report was against the appellant. When Ganga Singh PW1 was produced before the court, he did not utter even a single word that he handed over the seized article in an intact seal to the ‘Malkhana Mohrir’ and the same remained in safe custody of the Malkhana in the police station. The prosecution tried to show a GD entry by which the case was registered and the seized article was deposited in the malkhana at the police station. It is also pertinent to mention here that the contents of that GD could have been proved only by the person who have recorded the GD. The GD has been proved by Ganga Singh PW1. The contents of the GD that whether the seized articles were handed over to the police station could not be proved. In absence of the evidence of the person who had taken the charge of seized article, it creates a doubt. 15. It is further pertinent to mention here that Ganga Singh PW1 had written an application to the Sessions Judge, Almora that the said seized article be kept in the Sadar Malkhana of Almora which was permitted by the Sessions Judge. It reveals that the said article was taken out from the malkhana on 30.7.2005 for being depositing it in the Sadar Malkhana, Almora. The prosecution has not produced the GD by which the said article was taken out from the malkhana. It is the bounded duty of the prosecution to prove that the said articles were kept intact in the custody of the malkhana Mohrir. The prosecution did not adduce any evidence before the trial court that from 30.07.05 to the date of production before the court the seized ‘Ganja’ was kept in the Sadar Malkhana, Almora. No ‘malkhana’ register was produced before the trial court. This fact becomes more important, when the sample of the seal which was fixed on the seized article was not produced before the court. It was incumbent on the prosecution to examine ‘Malkhana Mohrir’ to show that the said articles were not tampered till it was handed over to the chemical examiner. It is also not known who had taken the seized article from the police station to the court. These facts also create a doubt in the testimony of the prosecution witnesses. I am fortified with the view taken by Allahabad High Court in Shiv Charan Vs. State A.C.C. 1999(38) p/181 in which it has been held as under:- “6. A perusal of the record of the case shows that the prosecution had not given link evidence. It is not given link evidence. It is not known where the seized charas was kept after it was recovered from the possession of the appellant. It is also not known that who had carried it from the place of recovery to the place of storage. No evidence was also adduced as to who had carried the charas in question to the Chemical Examiner. The said Charas is said to have been recovered on 11.10.1990 and the report of the chemical examiner is dated 26.8.1993 from which it appears that it was received in the office of chemical examiner by means of letter dated 5.11.1991. No evidence is given to show that the Charas in question remained intact in the sealed bag for a period of more than one year i.e. from 11.10.1990 to 5.11.1991. In view of this, it cannot be said that the same Charas was sent to the chemical examiner for his report which was recovered from the possession of the appellant. Hon/ble the Supreme Court in the case of Valsala Vs. State of Kerala 1993 (30) ACC 605 S.C. has held that in the absence of link evidence, the conviction under the N.D.P.S. cannot be sustained.” 16. It has also been held in Valsala Vs. State of Kerala 1993 Supp.(3) S.C.C. p/665 that :- “We have seen the report of the Chemical Examiner and there no doubt it is mentioned that one sealed parcel was received containing a powder and it was analysed to be brown sugar. But from the records it is clear and it is also noted by both the courts below that the seized article was produced in the court only on 14.1.1988 i.e. after a period of more than three months and there is no evidence whatsoever at all to show with whom the seized article was lying and even assuming that it was in the custody of PW6, the Officer in charge of the police station who seized it, there is again nothing to show whether it was sealed and kept there. The learned counsel for the State no doubt argued that the provisions of Section 55 of the Act are not mandatory but only directory. We need not go into this legal question in this case. Suffice it to say that the article seized appears to have been not kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the Chemical Examiner. There is a big gap and an important missing link. In the mahazar Ex. P- 2 which is immediately said to have been prepared, there is nothing mentioned as to under whose custody it was kept after seizure. Unfortunately for the prosecution even PW6 does not say that he continued to keep it in his custody under seal till it was produced in the court on 14.1.1998. The evidence given by PW6 Police Sub-Inspector, who seized the article is absolutely silent as to what he did with the seized article till it was produced in the court. As a matter of fact he did not produce it in the court. PW3, A.S.I. is supposed to have produced the same in the court. But PW3 does not say anything about this. It is only PW7 the Circle Inspector who comes into the picture at a later date, who admitted in the cross examination that the seized article was sent by PW3 (A.S.I.) to the court and PW7 in his cross examination further admitted that he did not even see if the recovered material object was sealed but still he claims that he made the necessary application for sending the material object for chemical examination and it is only through PW7 that the Chemical Examiner’s report is marked. PW7 further admitted that he did not even know when it reached the court. We are constrained to say that the investigation in this case has been perfunctory and on important aspects the evidence of the concerned officers is highly discrepant and unconvincing and does not throw much light. Therefore, the evidence adduced is wholly insufficient to conclude that what was seized from the appellant alone was sent to the Chemical Examiner. Though this is purely a question of fact but this is an important link. Both the courts below have not examined this aspect in a proper perspective. No doubt the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof, the courts cannot convict.” 17. It has been held in State of Tamil Nadu & another Vs. Muniandi 2001 J.Cr. SC p/308 that :- “9……………………………………….The I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness PW1 and was kept him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under section 55 of the NDPS Act. The prosecution had not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser. …………….. ” 18. The Hon’ble Supreme Court has observed in State of Rajasthan Vs. Gurmail Singh 2005 SCC(Cri) p641 that :- “2. ……………..In the first instance, though the seized articles are said to have been kept in the malkhana on 20.5.1995, the malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW6 on 5.6.1995. We further find that no sample of the seal was sent alongwith the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles.” 19. It has also been held by this Court in Mr. Harman Chrust Vs. State 2005(1) U.D. p/736 that the prosecution cannot prove its case against the accused without the link evidence that the seized article was not tampered with during the period it remained in the custody at police station and thereafter at malkhana is completely missing. 20. Ganga Singh PW1 has stated categorically stated that the sample of the seal was not available on the record. He has not produced the seal affixed on the seized article before the court. The evidence of the prosecution was recorded on 18.11.06 i.e. after one year of the incident. It is also pertinent to mention here that if the seal affixed on the sample was not produced before the court for the purpose of tallying it with the seal affixed on the seized article which was produced before the court, the identity of the seized article cannot be established as to whether the seized article which has been produced before the court is the same article which was seized on the date of the incident. It was duty of the prosecution to establish that the seal of the sample have been sent to the court and the court while taking into consideration would compare the seal of the seized article with the sample of the seal produced before the court. Moreover, the person who had taken seized article from the ‘malkhana’ to the court and from court to the Forensic Laboratory, Agra has not been examined before the court. The sample of the seized article was sent to Forensic Science Laboratory, Agra by the court with its own seal. It is also evident from the report of Laboratory that the sample of the seized article contained no other seal, except the seal of the court. The seal of S.H.O. Ganga Singh PW1 which was alleged to have been affixed at the time of the seizure should have been shown if it was so. According to the prosecution, two separate samples were prepared from the article seized at the spot, and both the samples were sealed on the spot. From the record, it is also revealed that sample of the seized article which was kept separately for its chemical examination was sent to Forensic Science Laboratory, Agra on 11.8.2005 by the Sessions Judge, Almora and the said sample was received to F.S.L., Agra on 16.8.2005. The prosecution failed to explain the delay in sending the said sample to the Forensic Science Laboratory, Agra. The Hon’ble Apex Court in the case of Valsala (supra) has held that if there is an inordinate delay in sending the seized article to the magistrate the evidence of the prosecution becomes doubtful. 21. It is also important to mention here that the provisions of the Narcotic Act are very stringent and it provides all the necessary formalities to be done before taking the accused into the custody in order to safeguard the appellant from false implication. If the law is stringent, it is obligatory on the part of the prosecution to prove all the formalities as provided under the Act. 22. The learned Amicus Curiae further contended that there is difference of weight regarding the sample sent for the chemical examination. Learned A.G.A. refuted the contention. The report of Joint Director, Forensic Science Laboratyr, Agra shows that 750 grams of the sample of contraband article was received there for its chemical examination, whereas the prosecution case is that only 500 grams of ‘ganja’ was sent for chemical examination out of 25 kgs recovered from the possession of the appellant. In the application of Ganga Singh PW1 addressed to Sessions Judge, Almora, it has been categorically stated that the article recovered