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2005 DIGILAW 337 (HP)

RAKESH KUMAR v. STATE OF H. P

2005-09-13

SURJIT SINGH

body2005
JUDGMENT Surjit Singh, J.—Appellant Rakesh Kumar has been convicted of an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for a period of five and half years and to pay fine of Rs. 30,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of two and half years. He is aggrieved by his conviction and sentence for the aforesaid offence. 2. Facts leading to the trial and the conviction and sentence of the appellant may be noticed. On 6.6.2003, Head Constable Ram Pal (PW-13) Investigating Officer, Police Post Mehtapur, was present at check post Mehatpur, when around 3.25 a.m., Bus No. HP-36-5813 which started from Faridabad and was bound for Jassur reached at the said check post. He and his companion police officials, namely Head Constable Ram Pal No. 12 (PW-12), Constable Jaswant Singh (PW2) and Constable Govind Ram (PW-6) carried out checking of the passengers. The conductor of the bus, namely Sanjiv Kumar (PW-1) was also associated in the checking of the passengers and their luggage. One Prem Chand (PW-3), posted as peon at the Excise Barrier, Mehatpur, which is close to the police check post, Mehatpur, was also associated. During the course of the checking, two passengers occupying seat Nos. 35 and 42 were founded to be holding bags in their laps. One of them was appellant Rakesh Kumar and the other one was Satbir Singh. The bags were checked and poppy husk was found therein. The poppy husk found in the bag, which the appellant was holding in his lap weighed 14 Kilograms. The quantity of the poppy husk recovered from the bag of other passenger, namely Satbir Singh weighted 12 kilograms. Two samples, each weighing 100 grams were separated from each of the two bags. Those samples were made up into four separate parcels and were sealed with a seal that produced the impression of English letter H. The bags containing the bulk poppy husk were also made up into separate parcels and the parcels were sealed with the same seal as the samples. NCB form, was filled in Seizure memo was prepared. A report of the search and seizure was prepared and sent to the police station concerned for the formal registration of the case. NCB form, was filled in Seizure memo was prepared. A report of the search and seizure was prepared and sent to the police station concerned for the formal registration of the case. On the basis of that report, a case was registered against the present appellant and the other passenger Satbir Singh, vide FIR No. 341 of 2003. Head Constable Ram Pal (PW-13) produced four parcels containing the samples and two parcels containing the bags with bulk poppy husk therein, to the Station House Officer, who affixed his own seal, which produced the impression of English letter A, on all the four samples parcels as also the two parcels containing the bulk poppy husk. The parcels together with NCB form and specimen impressions of the seal were then deposited with the Moharar Head Constable by the Station House Officer. Moharar Head Constable sent two samples to the Chemical Laboratory together with the NCB form. The Chemical Examiner reported that both the samples contained poppy husk. On receipt of the aforesaid report from the Chemical Examiner, challan was filed. The Sessions Court charged the appellant with an offence, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The appellant pleaded not guilty. Thereafter evidence of the prosecution was taken. Accused in his statement under Section 313 of the Code of Criminal Procedure denied that he was carrying any bag in his lap and pleaded innocence. The learned trial Court found him guilty of the charge convicted and sentenced him as aforesaid. 3. Appellant is aggrieved by his conviction and sentence. The finding of the trial Court has been assailed on a number of grounds. However, during the course of arguments, learned Counsel for the appellant assailed the judgment of the trial Court on two grounds, namely the evidence that the bag containing poppy husk was recovered from the appellant, was highly doubtful and that the link evidence was missing in the case. 4. Having heard the learned Counsel for the appellant and the learned Deputy Advocate General for the State and also having gone through the record, with their assistance, though I am not inclined to uphold the first ground of attack, I do feel that the second ground of attack is well founded. 5. 4. Having heard the learned Counsel for the appellant and the learned Deputy Advocate General for the State and also having gone through the record, with their assistance, though I am not inclined to uphold the first ground of attack, I do feel that the second ground of attack is well founded. 5. As regards the first ground of attack, the learned Counsel argued that the sole independent witness in the case, namely the conductor of the bus PW-1 Sanjeev Kumar has not supported the prosecution evidence and that the evidence of the police officials, namely PW-12 Ram Pal, Head Constable No. 12 and PW-13 Ram Pal, Head Constable No. 46 and the Excise peon PW-2 Prem Chand is contradictory. I do not find any contradiction or discrepancy in the testimony of the above named three official witnesses, that is two Head Constables and one Excise peon worth noticing. Their testimony also do not suffer from any serious discrepancy or inconsistency. All of them have stated with one voice that the present appellant and one more passenger were carrying bags which were placed in their laps and that on search of those bags, poppy husk was found therein. They have also stated that the bag which was being carried by the appellant contained of 14 kilograms of poppy husk while the bag which the other passenger was holding in his lap contained 12 kilograms of poppy husk and that two samples from each of the two bags were taken and made up into four separate parcels and those parcels were sealed with a seal that produced the impression of English fetter H and that the bags recovered from the appellant and the other man were also made up in two parcels and those parcels were also sealed with the same seal. They have stated that seizure memo was prepared. Photostat copy of the seizure memo is Ext. PC. In view of the aforesaid categorical testimony of PW12 Ram Pal, PW-3 Prem Chand and PW-13 Ram Pal, Investigating Officer, the contention that the evidence regarding recovery of a bag containing poppy husk from the appellant is doubtful, cannot be upheld. 6. The other submissions of the learned counsel appears to be well founded. PC. In view of the aforesaid categorical testimony of PW12 Ram Pal, PW-3 Prem Chand and PW-13 Ram Pal, Investigating Officer, the contention that the evidence regarding recovery of a bag containing poppy husk from the appellant is doubtful, cannot be upheld. 6. The other submissions of the learned counsel appears to be well founded. Admittedly, two persons carrying two bags sitting on two separate seats, one on seat No. 35 and another on seat No. 42 of the same bus were apprehended by the police. Poppy husk was found in both the bags. The police prepared one seizure memo in respect of the recovery and search of the bags from both the persons and also registered one F.I.R. Two samples each were taken from the bag recovered from the present appellant and the bag recovered from the other passenger, namely Satbir Singh. All the four samples were made up into separate parcels and all the parcels were sealed with the same seal. The bags with bulk poppy husk therein were made up into separate parcels and those parcels were also sealed with the same seal. Only one NCB form was filled in, in respect of all the four samples, viz. two taken from the bag which the appellant was carrying and two taken from the bag recovered from the other passenger. The four sample parcels and two parcels containing the bulk poppy husk were produced by PW-13 Ram Pal to the Station House Officer, namely PW-10 Surinder Sharma, Inspector, who affixed the same seal, which produced the impression of English letter A, on all the four sample parcels and the two parcels containing the bulk stuff. No mark of distinction was put on the samples indicating which were taken from the stuff recovered from the appellant and which two were taken from the stuff recovered from other passenger, named Satbir Singh. In the NCB form Ext.PM, also no distinguishing mark was indicated. The parcels containing the samples and the parcels containing the bulk poppy husk were deposited with the Moharar Head Constable Ved Prakash (PW-11) alongwith the NCB form, who sent two of the four sample parcels to the Chemical Laboratory for analysis. In the NCB form Ext.PM, also no distinguishing mark was indicated. The parcels containing the samples and the parcels containing the bulk poppy husk were deposited with the Moharar Head Constable Ved Prakash (PW-11) alongwith the NCB form, who sent two of the four sample parcels to the Chemical Laboratory for analysis. There being no mark of distinction on the sample parcels or even in the NCB form indicating which two samples pertained to the stuff found in the bag of the appellant and which two samples pertained to the stuff found in the bag of the other passenger, it can legitimately be presumed that the Moharar Head Constable did not know, when he sent two sample parcels to the Chemical Laboratory, if both such parcels contained the samples taken from the stuff found in the bag of the appellant or they contained the sample of the stuff recovered from the other passenger, namely Satbir Singh, or that one sample was in respect of the stuff recovered from the appellant and the other in respect of the stuff recovered from other passenger. Under these circumstance the possibility cannot be ruled out that both the samples which were sent to the Chemical Examiner, were in respect of the stuff recovered from the other passenger. Thus the report of the Chemical Examiner Ext. PN, recorded on the reverse of Ext. PM does not stand linked to the stuff recovered from the appellant. In Ram Lai and another v. State of H.P. [Latest HLJ 2004 (HP)(DB) 143, in which the facts were similar to the facts of the present case, a Division Bench of this Court held that the prosecution had failed to link the samples with each one of the two persons, from whom contraband stuff was alleged to have been recovered and consequently acquitted both of them. 7. In view of the above stated position, the appeal is accepted, the conviction and the sentence of the appellant are set aside and he is acquitted. He, being in custody, is ordered to be released forthwith in case his detention is not required in any other case. Appeal allowed.