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2002 DIGILAW 56 (HP)

STATE OF H. P. v. GURDEEP LAL

2002-03-14

M.R.VERMA, R.L.KHURANA

body2002
JUDGMENT Per R.L Khurana, Judge (Oral) - The two respondents (hereafter referred to as the accused) I having been tried for the offence under section 20 of the Narcotic/ Drugs and Psychotropic substances Act (hereafter referred to as the NDPS Act) stand acquitted by the learned sessions judge, Una vide judgment dated January 18, 2000 in Sessions trial No. 19 of 1999. 2. According to the prosecution story, on February 28, 1999 Sub-Inspector Kailash Walia, Station House Officer of police station, Amb was present in village Mairi in connection with the fair, when he received information from constable Jaswant Singh that the two ace -used, who were sitting on the staircase leading to charanganga and talking to each other were suspected of being in possession of Charas. The information so received was duly recorded by Sub-Inspector Kailash Walia and sent to his superior Officer. A Rooka was also sent to the police Station for the registration of the case. Sub-Inspector Kailash Walia thereafter constituted a raiding party in which S/Shri Bidhi Chand and Shadi LaL were associated. The two accused, who were sitting on the staircase leading to charanganga and talking to each other, were apprehended. Sub-Inspector Kailash Walia informed that since he suspected them to be in possession of some narcotics, their personal search was required to be carried out. He, therefore, enquired from each the two accused if they would like to be searched by him or would like to be searched before the .Magistrate or a Gazetted Officer. The two accused are alleged to have opted to be searched by Sub-Inspector Kailash Walia. Thereupon, personal search of the accused was carried out and 88 Gms. Of Charas was recovered from accused Gurdeep Lal while 84 Gms. Of Charas was recovered from the person of accused Shankar. The Charas so recovered from each of the two accused, was separately sealed after taking out two samples each from the quantity of Charas1 recovered from each of the two accused. 3. The samples were sent to the chemical Examiner who found the contents to be that of Charas1. Before the samples were sent to the chemical Examiner for analysis, the sealed packets containing the seized contraband were produced before the learned Additional Chief Judicial Magistrate, Amb. Such sealed packets were photographed and the packets were re-sealed with the seal of "SJ-cum-SDJM Amb". 4. Before the samples were sent to the chemical Examiner for analysis, the sealed packets containing the seized contraband were produced before the learned Additional Chief Judicial Magistrate, Amb. Such sealed packets were photographed and the packets were re-sealed with the seal of "SJ-cum-SDJM Amb". 4. On the completion of the investigation, the two accused were put to trial who pleaded not quilty. During the course of the trial, the case of the two accused has been that of denial of simplicitor. 5. The prosecution in support of its case in order to bring home the offence against each of the two accused, examined 12 witnesses in all. No defence was led by the accused. 6. The learned Sessions Judge, upon consideration of the evidence led before him, acquitted each of the two accused of the offence under section 20 for the NDPS Act vide impugned judgment on January 18,2000. In acquitting each of the two accused, the learned Sessions Judge came to the conclusion that the mandatory provisions of section 50 of the NDPS Act were not complied with and that the CSFL Form was not prepared at the time of recovery of the contraband from each of the two accused. 7. The acquittal of each of the two accused, as recorded by the learned Sessions Judge, has been assailed by the State by way of the present appeal. 8. We have heard the learned counsel for the parties and have also gone through the record of the case. 9. At the very outset, it may be stated that the acquittal of each of the two accused, as recorded by the learned sessions judge, calls for no interference in the present appeal. 10. The learned Sessions Judge has held that there has been non-compliance of the mandatory provisions of the NDPS Act. There is no dispute that the provisions as contained in section 50 of the NDPS Act are mandatory in nature. Under these provisions, before personal search is to be carrying out, the person carried out the search has to inform the person to be searched of his right to be searched before a Magistrate or a Gazetted officer. In the present case, the two independent witnesses alleged to have been joined by the Investigation officer, are pw-10 Bidhi Chand and one Shadi Lal. Pw-10 Bidhi Chand has stated that before carrying out the search. In the present case, the two independent witnesses alleged to have been joined by the Investigation officer, are pw-10 Bidhi Chand and one Shadi Lal. Pw-10 Bidhi Chand has stated that before carrying out the search. The Investigation officer had asked the two accused if they would like to be searched by him (Sub-Inspector Kailash Walia) or before some respectable person. If the statement of PW-10 is accepted, then on the face of it there has been non-compliance of the mandatory provisions of section 50 of the NDPS Act. 11. It was contended by the learned Additional Advocate General that the Investigation officer (PW-12) Sub-inspector Kailash Walia has categorically stated that he had asked the two accused if they would like to be searched by him or before Magistrate or before a Gazetted officer and with this regard the necessary memo. Ext. PD was prepared whereby each of the two accused had given their consent to be searched by the Investigation Officer. 12. A perusal of Ext. PD shows that F.I.R. No is mentioned on the top of this memo. It is not known as to how the F.I.R. came to be recorded on this memo. A reading of the memo it self shows that the case had not been registered by that time and only a Rooka for the registration of the case had been sent. It appears that Ext. PD came to be prepared only after the registration of the case and much after the search alleged to have been carried out. 13. A Division Bench of this Court in Gabriel Vs. The State of H.P 1989 (1) Sim.L.C. 78.Where the seizure memo. Contained F.I.R. number, has held that in no circumstances the memo. Could contain the number of the F.I.R. as it does, because the F.I.R. was recorded in the police Station only on the receipt of the report. The investigation, therefore, was found to be not above board. To the Similar effect a learned Single judge of the Delhi High Court in Mohd. Hashim Vs. State (2000 Cri.L.J. 1510) and Zofar Vs, State (2000 Cri.L.J. 1589) has held the preparation of the memo, to be doubtful. 14. If the memo. Ext. The investigation, therefore, was found to be not above board. To the Similar effect a learned Single judge of the Delhi High Court in Mohd. Hashim Vs. State (2000 Cri.L.J. 1510) and Zofar Vs, State (2000 Cri.L.J. 1589) has held the preparation of the memo, to be doubtful. 14. If the memo. Ext. PD is held to be doubtful, then the statement of the Investigation Officer with regard to the compliance of the provisions of section 50 of the NOPS Act, in view of the specific statement made by pw-10, cannot be accepted. It may be mentioned that the other independent witness to the recovery, namely, Shadi Lal has not been examined and was given up as unnecessary. 15. On the basis of the evidence coming on the record, the Learned Sessions Judge has rightly held that there has been non-compliance of the mandatory provisions of section 50 of the NDPS Act in the present case. 16. There is yet another aspect of the case. The samples of the contraband were allegedly drawn by pw-12 Sub-Inspector Kailash Walia on February 28, 1999. According to him, the samples as well as the remaining part of the contraband were sealed separately in six parcels with the seal "A". There is no cogent and reliable evidence on record to show that any specimen of the seal used by pw-12 in sealing the packets was prepared at the spot and that such specimen of the seal was deposited with the Mohrrer Head Constable alongwith the case property. Similarly, though such sealed packets were produced before the learned Additional Chief judicial Magistrate,, Amb for the purpose of taking photographs and thereafter re-sealed by the Magistrate with his own seal, yet there is nothing in the statement of the Magistrate while appearing as pw-7 that any specific impressions of the seal used by him in re-sealing the packets were prepared. Even the Investigation Officer as pw-12 has not stated anything in this regard. No evidence has come on the record to show that any specimen of the seal used in sealing the samples either by the Investigation Officer or by the Magistrate was sent to the office of the chemical Examiner in a sealed cover while sending the samples for the purpose of analysis. Though the chemical Examiner in his report Ext. No evidence has come on the record to show that any specimen of the seal used in sealing the samples either by the Investigation Officer or by the Magistrate was sent to the office of the chemical Examiner in a sealed cover while sending the samples for the purpose of analysis. Though the chemical Examiner in his report Ext. PM has certified to the effect that the seals found on the sealed packets tallied with the specimen seal, yet in the absence of evidence that the specimen seals were available with the chemical Examiner, this part of his certificate cannot be accepted. 17. Admittedly, the sealed packets as sealed by the Investigation Officer with the seal Mark A were never re-opened by the Magistrate at the time of taking the photographs since the photographs Exts. A-3 and A-4 show the packets in the sealed position. These packets were re-sealed by the Magistrate with his own seal as is evident from the statement of the Magistrate pw-7. Only one seal appears to have been put by him on each of the sealed packets. Therefore, each sealed packet contained for seals, i.e. three seals of mark A and one seal of the court. A perusal of Ext. PM shows that while transmitting the samples to the chemical Examiner on 10-3-1999, each of the sealed packet contained three seals each of "SJ-cum-SDJM "Amb". There is no mention of the seal mark A on such sealed packets. Therefore, the prosecution has not been able to rule out the possibility of the contents of the sealed packets having been tampered with during the period it remained in the custody of the Investigation Officer or during the course of its transit to the office of the chemical Examiner. The necessary link evidence is missing in the present case. 18. Resultantly, we find no merit in the present appeal and the same is accordingly dismissed. 19. Accused Shankar is on bail pursuant to the orders of this court, his bail bounds shall stand cancelled and discharged. Accused Gurdeep Lal, who is in custody, shall be released forthwith, if not required in any other case. The case property shall be dealt with in accordance with the directions of the trial court.