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Himachal Pradesh High Court · body

2002 DIGILAW 118 (HP)

TITU SINGH v. STATE OF H. P.

2002-04-26

M.R.VERMA, R.L.KHURANA

body2002
JUDGMENT M.R. Verma, J. - This appeal is directed against the judgment dated 3.7.2000 rendered by the learned Special Judge, Solan whereby the appellant/accused (hereafter referred to as the accused) has been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act1) and has been sentenced to undergo rigorous imprisonment for twelve years and to pay fine of rupees one lac and in default of payment of fine, to undergo rigorous imprisonment for five years. 2. The case against the accused is that on 23.11.1999, ASI Chaman Lai (PW-8) along with some other police officials including HC Ranjit Singh (PW-3) and Constable Amarjit Singh (PW-4) was on patrol duty at Industrial Area Baddi. When they reached near Winson Factory, PW-8 received secret information against the accused as to his habitual involvement in the commission of offences concerning narcotic drugs and psychotropic substances. PW-8 recorded the information and reasons for believing it to be correct vide Ext. PN, one copy each whereof was sent through PW-4 to the Station House Officer, Police Station, Barotiwala, namely, Vijay Kumar (PW-9) and Superintendent of Police, Solan. Thereafter PW-8 associated two independent witnesses, namely, Joginder Singh (PW-1) and Mela Ram (DW-1) and conducted the search of the premises known as Himachal Stationery Factory Plot No. 64, Industrial Area, Baddi. At the time of search, the accused was found present in one of the rooms. The reasons for search were disclosed to him by PW-8 who also gave option to the accused whether he desired to be searched by him (PW-8) or before some Magistrate or Gazetted Officer. The accused consented to be searched by PW-8 vide memo Ext. PE. Thereafter the police officials and the witnesses joined to witness the search, gave their search vide memos. Exts. PB and PC. The search of the premises occupied by the accused was then taken and one attache-case kept under the cot of the accused was noticed and was opened and Charas: weighing 1.4 kgs. Was found therein kept in a Polythene pouch Ext. P-3. Out of the Charas so found, two samples of 10 Gms. each were separated for chemical analysis and thereafter the bulk of the Charas and the two samples were separately sealed with seal T vide memo. Ext. PF. Was found therein kept in a Polythene pouch Ext. P-3. Out of the Charas so found, two samples of 10 Gms. each were separated for chemical analysis and thereafter the bulk of the Charas and the two samples were separately sealed with seal T vide memo. Ext. PF. Seal T" used for sealing the case property, after taking the sample thereof, was handed over to Mela Ram (DW-1) vide memo. Ext. PH. PW-8 drew up Rooka1 Ext. PL and sent the same through PW-3 to the Police Station where formal FIR ext. PM was recorded. On receipt of Rooka Ext. PL, .SHO Vijay Kumar (PW-9) proceeded to the spot. On arrival of PW-9 on the spot, PW-8 handed over the case property and the other memos. Already prepared by him to PW-9 who re-parceled the case property and samples and sealed the same with seal A vide memo. Ext. PG. After taking the sample, seal A was handed over to Mela Ram (DW-1) vide memo. Ext. PK. Other legal formalities like preparation of the site plan Ext. PQ, disclosure of ground of arrest to the accused and submission of the report under Section 57 of the Act followed. One of the samples of the seizure Charas was sent to the Chemical Laboratory at Kandaghat and on analysis of the sample; the contents thereof were found to be charas vide report Ext. PR. On being satisfied of involvement of the accused in the commission of an offence punishable under Section 20 of the Act, the Officer Incharge, Police Station Barotiwala submitted a charge-sheet against the accused who came to be tried on a charge under Section 20 of the Act. 3. To prove the charge against the accused, the prosecution examined 9 witnesses. Statement of the accused under Section 313 of the Code of Criminal procedure was recorded wherein he denied the prosecution case as a whole and claimed that he was apprehended by the police on 22.11.1999 and was taken to Police Station Barotiwala and on the next day, i.e. 23.11.1999, a false case was foisted on him whereas he was never found in possession of the charas. The accused led defence and examined one of the search witnesses, namely, Mela Ram (DW-1) in his defence. 4. The accused led defence and examined one of the search witnesses, namely, Mela Ram (DW-1) in his defence. 4. On the basis of the material on record, the learned Special Judge found the accused guilty of the commission of the offence, punishable under Section 20 of the Act and accordingly convicted and sentenced him as aforesaid. Hence the present appeal. 5. We have heard the learned Counsel for the accused and the learned Assistant Advocate General for the respondent-State and have also gone through the records. 6. The learned Counsel for the accused assailed the impugned conviction and sentence on the following grounds:- (i) That compliance of the provisions of Section 42(2) of the Act is not proved beyond reasonable doubt; and (ii) That there is no link evidence to connect the bulk of the allegedly seized contraband with the sample which was analyzed by the Assistant Chemical Examiner, Kandaghat. 7. Ground No. (i) It was contended by the learned Counsel for the accused that the reasons allegedly recorded by the Investigating Officer under Section 41(1) of the Act regarding his receipt of the information and for his belief that the information was correct, are not proved to have been sent to his immediate superior officer within 72 hours as required under sub-section (2) of the Section 42 of the Act and non-compliance of the said provisions is fatal to the case-of the prosecution. 8. ASI Chaman Lal (PW-8) who received the information and conducted the initial investigation in the case, has stated that on receipt of the information that the accused is habitual of committing excise offences, he recorded the reasons for believing the information vide Ext. PN and sent copies thereof through constable Amarjit Singh to SHO. Police, Station, Barotiwala and the Superintendent of Police, Solan. A perusal of Ext. PN reveals that the information as alleged was received by PW-8 and was believed by him to be true, thus, be complied with the provisions of sub-section (1) of Section 42 of the Act. He forwarded copies of so recorded information and reasons of believe Ext. PN to the Superintendent of Police through constable Amarjit Singh (PW-4) who corroborates the statement of PW-8 on this count. Yoginder Singh, HC (PW-5) has stated that document Ext. He forwarded copies of so recorded information and reasons of believe Ext. PN to the Superintendent of Police through constable Amarjit Singh (PW-4) who corroborates the statement of PW-8 on this count. Yoginder Singh, HC (PW-5) has stated that document Ext. PN was received at the residence of the Superintendent of Police on 23.11.1999 at 11.30 a.m. He has identified the signatures of the Superintendent of Police on Ext. PN. Above the seal and signatures of the Superintendent of Police dated 23.11.1999, there is an endorsement that this document was received at the residence by the signatory at 11.30 a.m. on the said date. 9. In view of the above discussed evidence, there remains no doubt that a copy of the information reduced into writing and the ground for his belief recorded by PW-8, that is Ext. PN, was sent to his superior officer within four hours of the receipt of the information. Thus, there has been due compliance of Section 42(2) of the Act. The contention of the learned Counsel for the accused that compliance of the provisions of Section 42(2) of the Act by PW-8 is doubtful, therefore, does not hold good. 10. Ground No. (ii) It was contended by the learned Counsel for the accused that there is no link evidence to connect the sample of the allegedly seized contraband with the bulk thereof, therefore, the impugned conviction and sentence are bad in law and deserve to be set aside. 11. According to PW-9, after recovery and seizure of the charas, which weighed 1 kg? 400 Gms. two samples of 10 Gms. each were separated from the bulk of the contraband and thereafter both the samples and the bulk were wrapped, packed and sealed on the spot with seal impression T vide memo. Ext. PF and the seal after use was handed over to Mela Ram (DW-1) vide receipt Ext. PH. It is so mentioned in the recovery memo. Ext. PF. However, neither it is mentioned in the recovery memo, as to how many seal impressions were affixed to each of the packets of the sample and the remaining case property nor it is stated by PW-8, though usually the number of seal impressions affixed to the parcels containing the case property is indicated in the Panchnama. 12. As per the contents of receipt Ext. 12. As per the contents of receipt Ext. PH, the seal T used for sealing the case property by PW-8 was handed over to one of the independent witnesses, namely, Mela Ram Chandel. However, the prosecution has not examined said Mela Ram but was examined by the accused as DW-1. He has not been cross-examined by the prosecution regarding the whereabouts of the seal T allegedly handed over to him nor was he ever called upon to produce such seal in the Court. 13. SI, SHO, Vijay Kumar (PW-9) on receipt of the information Ext. PN, proceeded to the spot and took over the case property and other documents prepared by PW-8 vide memo. Ext. PG. Even in Ext. PG it is not mentioned as to how many seal impressions were affixed to each of the three packets of the samples and the bulk contraband though it is mentioned that those were sealed with seal T. PW-9 re-wrapped all the three packets of the samples and the bulk of the case property in the form of packets and sealed each of them with seal A vide memo. Ext. PG and the seal A used for sealing the packets was handed over to said Mela-Ram (DW-1) vide receipt Ext. PK. However, Mela Ram has not been cross-examined by the prosecution even about the whereabouts of seal A nor he was ever called upon to produce such seal, if any, handed over to him. Again, it has not been mentioned even in Ext. PG as to how many seal impressions of seal A were used for sealing the re-parceled case property. In any case, what is evident from the statements of PW-8 and PW-9 and the documents Ext. PF and Ext. PG is that the inner packets of the sample and the bulk contraband were sealed with seal T1 and the outer packets were sealed with seal A. 14. PW-8 or PW-9 has not stated anything about the preparation of NCB form Ext. PR. Prima facie, it appears to have been prepared on 23.11.1999 by the SHO, and as per this form, the seal used for sealing the two samples was A and the number of seals put on the samples has been mentioned as two (though not properly legible). PR. Prima facie, it appears to have been prepared on 23.11.1999 by the SHO, and as per this form, the seal used for sealing the two samples was A and the number of seals put on the samples has been mentioned as two (though not properly legible). The Chemical Examiner in his certificate though mentions that the seals of the sample were intact but he does not mention as to what seal impressions were affixed to the sample packets. Thus, there is no evidence on the record to find out as to when the NCB form was prepared and what seal impressions were affixed to the samples received by the Chemical Examiner. 15. PW-8 or PW-9 in their statements have not stated as to whether the ease property and the samples remained with either of them or these were handed over to anyone else for being kept in safe custody. Madan Lai, MHC.(PW-7), however, has stated that the case property of this case was handed over to him by SHO Vijay Kumar (PW-9) on 23.11.1999 and "the case property was in the form of contraband charas having three packets duly sealed with seal "T." He has further stated that on 24.11.1999 he handed over the two samples packets to Constable Manshu Ram (PW-6) for transmission to the Chemical Laboratory, Kandaghat. Thus, according to this witness, the samples which he handed over to Manshu Ram (PW-6) were sealed with seal T whereas the samples of the contraband allegedly seized in this case, bore seal impression A on the outer packets and evidently the seal used for sealing the inner packets could not be known to this witness. Thus, the samples handed over by him to PW-6 were sealed with seal impressions T. These could not be the samples of the case property outer packets whereof were sealed with seal A. Manshu Ram (PW-6), who took the samples to the Laboratory at Kandaghat, has also stated that on 24.11.1999 PW-7 handed over two packets to him which were sealed with seal \T. The statement of this witness corroborating the version of PW-7, leaves no doubt that the samples which were sent to the Laboratory, were sealed with seal T1 whereas the samples of the case property in this case bore the visible seal impressions A on the outer packets. It is thus not proved that the samples which were sent to the Laboratory were those of the contraband seized in the case as there is no link evidence to connect the bulk of the allegedly seized contraband with the samples which were analysised by the Assistant Chemical Examiner, Kandaghat and the possibility, of the samples of some different case property having been sent to the Chemical Laboratory is not ruled out. 16. This Court in Sandeep Kumar v. State of H.P., Criminal Appeal No. 111 of 2001, decided on 12.4.2002, while dealing with the importance of link evidence, held as under :- "22. It may be pointed out that link evidence with reference to any psychotropic or narcotic substance seized when found in unlawful possession, is the evidence which provides link in the evidence from the stage of taking the sample till its examination by the Chemical Examiner. This evidence is very material to connect the sample with the remaining case property. The prosecution is duty bound to lead link evidence to prove that the articles/samples sent to the Chemical Examiner were the same which were recovered/were samples of the contraband recovered from the accused and the sample(s) analyzed by the Chemical Examiner is in fact of the bulk of the contraband recovered from the accused. In the absence of such evidence where accused has denied recovery of the contraband from his possession or at his instance, he cannot be convicted for possession thereof." 17. In State of H.P. v. Gurdeep Lal and another, Criminal Appeal No. 224 of 2000, decided on 14.3.2002 and Amar Singh v. State of H.P., Criminal Appeal No. 303 of 1998 decided on 22.3.2002 this Court took similar view as in Sandeep Kumars case (supra). 18. In view of the above position in law and absence of link evidence connecting the sample with the bulk case property, we are of the view that the charge against the accused is not proved and the impugned conviction and sentence are liable to be set aside. 19. As a result, this appeal is allowed and the impugned conviction and sentence are set aside and the accused is acquitted of the charge against him. 20. The accused is in custody undergoing the sentence of imprisonment awarded to him by the trial Court. 19. As a result, this appeal is allowed and the impugned conviction and sentence are set aside and the accused is acquitted of the charge against him. 20. The accused is in custody undergoing the sentence of imprisonment awarded to him by the trial Court. He be set at liberty forthwith, if not required to be detained under any other process of law. Fine, if recovered, be refunded to the accused.