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2003 DIGILAW 265 (UTT)

Prem Shankar Sharma v. State of Uttaranchal

2003-11-15

IRSHAD HUSSAIN

body2003
JUDGMENT Irshad Hussain, J. 1. This appeal is directed against the judgment dated 28.6.2003 passed by the learned Additional Sessions Judge/III F.T.C., Udham Singh Nagar convicting the appellants Prem Shankar Sharma and Prakash Chandra Arya under section 20 of the N.D.P.S. Act (for short 'the Act') and sentencing them to undergo R.I. for ten years and a fine of Rs. 1,00,000/- (one lac) each, and in default one year's further R.I. 2. The prosecution case, in brief is that on 9.12.2001 P.W.1, S.S.I. D.L. Verma and P.W.2, A.S.I. Ramesh Pal Singh along-with other police personnel of P.S. Khatima, District Udham Singh Nagar were in search of the culprit of some crime registered with the Police Station and when they reached near Melaghaat Nagla Tarai areas, they received information from a Mukhbir that two persons carrying illicit 'Charas' will be coming from Nepal and they will hand over the contraband to some smuggler in the town of Khatima near about 5 p.m. These two police witnesses therefore, took two public witnesses namely Radhey Shyam Chaudhary and Sachin Kumar and went towards the culvert on the Melaghaat road. Two police parties were made to intercept the culprit and necessary precaution by taking search of each of the persons of the police parties was taken. At about 5 p.m. two persons came that way and on the pointing of the Mukhbir they were apprehended. They were told that there is information that they are carrying 'Charas' and, therefore, would you like to be searched in the presence of a Magistrate or a gazetted Officer. Both of them then told that since they have been arrested and it is true that they are carrying 'Charas' from Nepal for being sold and their search may therefore be taken by the members of the intercepting police parties. These two persons disclosed their names who are the appellants. From the possession of these two one kg. of 'Charas' each was recovered. The contraband was in the form of wicks. The recovery as such having been effected both the appellants were told that they are being taken into custody in view of their involvement in an offence punishable under section 18/20 of 'the Act'. 3. From the contraband seized 100 grams each of 'Charas' was taken as sample and these samples were packed and sealed separately. The recovery as such having been effected both the appellants were told that they are being taken into custody in view of their involvement in an offence punishable under section 18/20 of 'the Act'. 3. From the contraband seized 100 grams each of 'Charas' was taken as sample and these samples were packed and sealed separately. The remaining recovered contraband were also packed and sealed separately at the spot. Memo of recovery and arrest (Ex.Ka.2) was prepared at the spot itself and the signatures of the appellants were obtained on the same and copy of the memo was supplied to each of the two appellants. 4. After completion of the above formalities at the scene of the occurrence the appellants and the packets of the recovered contraband were taken to the P.S. Khatima where on the basis of the memo, F.I.R. was lodged against the two appellants and two separate case crime Nos.765/2001 and 766/ 2001 under section 18/20 of the 'the Act' were registered against the appellants Prem Shankar Sharma and Prakash Chandra Arya respectively. The samples of the recovered contraband were sent to Chemical Examiner and on completion of the formalities of the investigation P.W.3, S.I. Het Ram Singh submitted charge sheets, EX.Ka.8 and EX.Ka.9 against these appellants on 30-12-2001. 5. The appellants pleaded not guilty and contended that they have been falsely implicated in the case. 6. In order to prove its case the prosecution had examined three witnesses. P.W.1, S.S.I. D.L. Verma and P.W.2 A.S.I. Ramesh Pal Singh were the members of the police parties which intercepted the two appellants on the day of the occurrence and recovered the contraband from them. They narrated the prosecution version as contained in the memo of recovery and arrest, EX.Ka.2. P.W.3, S.I. Het Ram Singh has proved the various steps of the investigation and formalities completed before submitting the charge sheets against the appellants. The prosecution tendered in evidence the reports of the Chemical Examiner, EX.Ka.6 and EX.Ka. 7 pertaining to the two appellants Prem Shankar Sharma and Prakash Chandra Arya respectively. 7. The learned trial court believed the evidence of both the appellants and sentenced them as aforesaid by the impugned judgment. 8. I have heard Sri D.S. Rawal learned counsel for the appellants and the learned A.G.A. arid have gone through the evidence on record with the help of both of them. 7. The learned trial court believed the evidence of both the appellants and sentenced them as aforesaid by the impugned judgment. 8. I have heard Sri D.S. Rawal learned counsel for the appellants and the learned A.G.A. arid have gone through the evidence on record with the help of both of them. I have also perused the judgment in appeal and considered the legal aspects of the case. 9. The learned counsel for the appellants argued that there was no compliance of the mandatory provision of section 50 of 'the Act' in as much as there Is no evidence to indicate that the appellants were informed of the existence of their right to have their search conducted before a gazetted Officer or a Magistrate so as to enable them to avail of that right. Similar contention was also raised before the trial court but the same was found devoid of merit and in my view rightly so. From the perusal of the memo of recovery and arrest, EX.Ka.2 it is evident that the appellants were told by P.W.1 and P.W.2 that if they wish they could be searched in the presence of a Magistrate or a gazetted Officer and that the appellants volunteered not to avail of the option but offered themselves to be searched by these members of the police parties in the presence of others P.W.1 and P.W.2 have also reiterated the same thing in their evidence and, therefore, it is proved that the offer given to the appellants was a communication about the information that the appellants have a right to be searched before a Magistrate or a gazetted Officer. The Apex Court in the case of Joseph Fernandez Vs. State of Goai(2000) 1 Supreme Court Cases 707 in the face of similar prosecution evidence found that there is substantial compliance of the requirement of section 50 of 'the Act' and the argument that there was no compliance was not accepted. Therefore, I find no merit in the argument of the learned counsel and it could not be said that the compliance of the provision of section 50 of 'the Act' was not made in this case. 10. Therefore, I find no merit in the argument of the learned counsel and it could not be said that the compliance of the provision of section 50 of 'the Act' was not made in this case. 10. The learned counsel for the appellants next contended that there is absolutely no evidence to prove the compliance of section 55 of 'the Act' and further that the link evidence to prove, that right from the stage of recovery the seals of the recovered contraband and the alleged samples taken at the time of the incident were not tampered with, is missing in this case and this in turn tell upon the veracity of the prosecution case as a whole. Section 55 of 'the Act' require that an officer-in-charge of a Police Station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him. No link evidence whatsoever was adduced in this case to prove that right from the time the alleged packets of the recovered contraband and also the alleged sample packets of the contraband handed over at the police station by P. W.1 were kept In the safe custody in the sense that the seals of the packets were not tampered with. Further according to P.W.1 and as is also evidenced by G.D. report No. 39 of 9.12.2001 regarding the registration of the case all the four was registered. It cannot be doubted that the two packets of the sample were taken from the Malkhana of the police station for being sent to the Chemical Analyst after receiving an authority from the Chief Judicial Magistrate concerned. These samples, therefore, changed hands before reaching the Chemical Analyst. In order to prove that the seals of the samples remained intact or these were not tampered with during this period, link evidence was required to be produced by the prosecution. Similar requirement was also necessary in regard to the sealed packets of the alleged contraband produced in the court at the time of recording of the evidence of P.W.1 and P.W.2 and who have proved that Exhibit-l and Exhibit-2 were the contraband recovered from the appellants and were packed and sealed at the spot at the time of the recovery and arrest. The link evidence to prove that seals of these packets were intact so long as they were in the Malkhana of the police station and were brought to the court was also required to be adduced in the case. - 11. As argued by the learned counsel the above omission assumed great significance in view of the fact that as per the report of the Chemical Analyst both the samples of the contraband received by him were weighing 35 gms. each instead of the description of the samples weighing 100 gms. each. The Chemical Analysts repoft-Ex,Ka.6" and Ex.Ka. 7 reveal this glaring discrepancy in the weight of the samples allegedly taken and received by the Chemical Analyst. It need to be mentioned here that both P.W.1 and P.W.2. gave out that the contraband seized and the samples taken were weighed at the spot by a weighing scale. In a situation like this a considerable difference of 65 gms. each in the weight of both the samples in the face of the absence of necessary link evidence make it highly doubtful that the samples sent to the Chemical Analyst were the same which were alleged to have been recovered from the appellants. No explanation whatsoever had been given by the prosecution about this remarkable discrepancy and there can be no gain saying that it was not proved beyond reasonable doubt that the representative samples examined remained in the safe custody. In the totality of the circumstances of the case the effect is that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period these were allegedly taken from the appellants and till they were received by the Public Analyst. 12. In this connection it shall also be worth while to mention that in the reports of the Public Analyst it is mentioned that the sealed packets of the sample received were having the seal of the Chief Judicial Magistrate, Udham Singh Nagar and which tallied with the samples of the seal sent with the packets. These reports do not prove that the sample packets were having the seal of P.W.1 who is stated to have put his seal on the four packets at the time of the recovery and arrest of the appellants. These reports do not prove that the sample packets were having the seal of P.W.1 who is stated to have put his seal on the four packets at the time of the recovery and arrest of the appellants. If the packets sealed at the spot in the manner as alleged by P.W.1 and P.W.2 the Public Analyst should have observed that the sample packets received were also having the other seals, samples of which were also received by him with the packets. This aspect of the matter further lend credence to the above inference that the prosecution has not proved beyond reasonable doubt that the contraband seized was the 'Charas' which was analysed by the Public Analyst. The learned trial court failed to consider this glaring aspect of the matter in proper perspective and merely observed that the said discrepancy does not effect the veracity of the prosecution version and its evidence. Considering the requirement of law having not been observed and the above factors on record I have no hesitation in coming to the conclusion that the learned trial court fell in error in placing reliance on the evidence of the prosecution. 13. For the above discussion I have no hesitation in coming to the conclusion that the prosecution has not proved beyond reasonable doubt that the alleged 'Charas' recovered was the same which was sent to the Public Analyst and, therefore, the charges levelled against the appellants were not proved beyond reasonable doubt. The judgment of the learned trial court is, therefore, liable to be set aside and the appellants are to be held not guilty and to be acquitted of the charges leveled against them. 14. The appeal is allowed. The judgment dated 28.6.2003 passed by Additional Sessions Judge/ III F.T.C., Udham Singh Nagar in special trial Nos. 46/ 2002 convicting and sentencing the appellants as aforesaid is set aside. The appellants are held not guilty and acquitted of the charges under section 18/20 of the N.D.P.S. Act. They are in jail. They shall be released forthwith, if not wanted in connection with any other case.