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Himachal Pradesh High Court · body

2010 DIGILAW 1261 (HP)

Kamla v. State of H. P.

2010-12-15

R.B.MISRA, V.K.SHARMA

body2010
JUDGMENT : R.B.Misra, Judge The present appeal has been preferred under Section 374 of the Code of Criminal Procedure, against the judgment dated 18th June, 2007, passed by learned Special Judge, Mandi, (H.P.), in Sessions Trial No.22 of 2006, whereby learned Special Judge convicted the accused under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) awarding sentence to convict-appellant to undergo rigorous imprisonment for ten years with fine of Rs.1 lac and in case of default of payment of fine, to undergo imprisonment for a period of one year. 2. The prosecution case is that a team of police officials comprising of Inspector Dabe Ram (PW-8), along with HC Krishan Lal, Lady Constable Bimla Devi and Constable Surjit Kumar at about 5 P.M. left for traffic checking duty on 12.3.2006 in vehicle No.HP-33-0365,when reached at Khalyut Mor on Kandha-Chail Chowk road and at about 6 P.M. observed a taxi No.HP-01-3696, coming in high speed from Kandha side on its way to Chail Chowk was stopped at some distance despite signal having been given by the police officials. A lady was found sitting on the back seat with a bag on her side. On asking by PW.8, the driver could not produce the driving licence as he was only holding a learners licence, as such, the vehicle was challaned under the Motor Vehicles Act vide challan Ext.PG and on enquiry the lady disclosed her name as Kamla Devi and she was informed about her checking. Thereafter, (PW-1), Sohan Lal, Pradhan, Gram Panchayat, was called by PW-8 and formal search of bag Ext.P-3 was carried out and poly bag Ext.P-4, containing Charas, was recovered from there. HC Kishan Chand arranged scale and weights from the shop of Narotam Ram, a Karyana Merchant at Naun and on weighment 5 Kilograms of Charas was recovered, out of which two samples of 25 grams each were taken out and sealed with seal ‘K’ and marked them as A-1 and A-2 and remaining bulk Charas was put in separate parcel and sealed with seal ‘K’ at 12 places. Samples were sent for the chemical examination and after investigation, convict-appellant was charged for the above offence. 3. Samples were sent for the chemical examination and after investigation, convict-appellant was charged for the above offence. 3. In order to prove its case, the prosecution has examined as many as eight prosecution witnesses, whereas, the accused / respondent through her statement under Section 313 Cr.P.C. denied the prosecution case and has also denied that the bag Ext.P-3 was not in her conscious possession from which contraband goods were recovered and DW-1 Raju and DW-2 Mane Ram were produced on behalf of the defence. 4. The travelling of accused / respondent (Kamla) in said taxi with PW-2 Rakesh Kumar and DW-1 Raju is not disputed on 12.3.2006. The bag being carried in the said taxi is also not disputed. The vital question therefore, for determination is whether Kamla while travelling in the said taxi was carrying the bag Ext.P-3 with herself and the same was in her conscious possession from which poly bag containing Charas was recovered. Prosecution has been found by learned Special Judge to have proved its case beyond reasonable doubt, as such, the prosecution and defence witnesses are required to be scrutinized exhaustively. 5. PW-1, (Sohan Lal), the Pradhan Gram Panchayat, Naun, when joined the investigation with police officials on 12.3.2006 at Khalyut Mor on Kandha Chail Chowk Road, at that time Ramesh Kumar (PW-2) and one other person with the police officials, were already present and at that time one taxi came from Kandha side which was on way to Chail Chowk in which a lady was sitting in the said vehicle, who disclosed her name as Kamla Devi, however, PW-1 had not seen anything in possession of Kamla Devi as PW-1 has stated that “I have not seen anything in possession of Kamla Devi as I came later-on. I have seen one bag lying on the road by side of vehicle. The said bag was opened by the police and Charas was recovered from the said bag wrapped in polythene envelope.” PW-1 has further stated that on weighment, 5 Kilograms of Charas was found and samples of the Charas were taken and other formalities, as usual, as stated in the testimony of PW-1, were made. In view of the testimony of PW-1, taking of sample, putting of seal impression etc. and putting of signatures by himself and by accused were affirmed. In view of the testimony of PW-1, taking of sample, putting of seal impression etc. and putting of signatures by himself and by accused were affirmed. PW-1, in his cross examination, has stated that Max vehicle No.HP-01M-3696 was a taxi and Rakesh Kumar (PW-2) was driver in the said vehicle in which accused / respondent was sitting in the rear seat. However, carrying of bag Ext.P-3 was denied by the accused. PW-1 has indicated in his cross examination that though he is matriculate and normally puts signatures on papers after going through the contents of the same, however, she had put signatures on the relevant papers in the present case, without reading the contents thereon. PW-1 has further stated in his cross examination that house of PW-1 is at a distance of half kilometer from the place of incident and he joined the police later-on and when he reached the spot, the police was enquiring from the accused, Rakesh Kumar (PW-2) and another occupant of the vehicle regarding the possession and ownership of the same. It was almost dark when PW-1 reached on the spot, thereafter, PW-1, along with other person and police went to Police Station, Gohar in the said vehicle and had further stated in his cross examination that, “I was sitting outside the Police Station in the verandah and police conducted the proceedings inside the Police Station. ... ... It is incorrect that later-on we were called inside the room by the police and signatures obtained by police on papers.” 6. PW-2, (Rakesh Kumar), the driver of taxi No.HP-01M-3696, has deposed that he was standing at the Taxi Stand along with taxi at Thunag and Raju (DW-1) was also with PW-2 at the relevant time. PW-2 has stated that he was driver of taxi No.HP-01M-3696 and accused Kamla Devi came to PW-2 and hired his taxi to go to Chail Chowk Bassa. Kamla Devi was known to PW-2 as she was running maniyari shop and was carrying bag in her hand when she boarded taxi of PW-2. She sat on the back seat of his taxi. Raju sat with PW-2 on the front seat of taxi and started at 4 P.M. and reached at Khaliun Mor near Village Naun when police after giving signal stopped the taxi and on formal checking of vehicle, police challaned PW-2 for his not having driving licence. She sat on the back seat of his taxi. Raju sat with PW-2 on the front seat of taxi and started at 4 P.M. and reached at Khaliun Mor near Village Naun when police after giving signal stopped the taxi and on formal checking of vehicle, police challaned PW-2 for his not having driving licence. Thereafter, the bag, carried by the accused, was also checked by the police. A poly bag containing Charas was found inside the said bag. Charas was taken out from the bag and weighed in scale and found to be 5 kilograms. Police had also called Pradhan, Sohan Lal (PW-1) on the spot. Thereafter, two samples of Charas were taken separately and same were put in different parcels of cloth and same were sealed with some seal. Signature of PW-2 were obtained on sample parcel as well as bulk parcel which was also sealed with the same seal. PW-2 has seen sample seal parcel Ext.P-1 which bears his signatures and that of Sohan Lal, Pradhan and thumb marked by the accused. PW-2 did not remember to whom the seal was handed over. PW-2 has further stated that the police had prepared search and seizure memo and attachment form Ext.PB where PW-2 had put his signatures and PW-2 had paid fine in the Court of SDJM, Gohar vide receipt Ext.PF and the copy of challan is Ext.PG under Motor Vehicles Act. PW-2, in his cross examination, has further stated that, “My signatures were obtained by the police on the various papers in the Police Station. We were sitting on bench in the verandah of the Police Station. I do not know where the police had prepared the parcels and papers as I was sitting outside the Police Station in verandah. My signatures were obtained after 10 – 15 minutes of arrival in Police Station. It was almost darkness at that time.” PW-2 has further denied that he was carrying Ext.P-3 in his taxi in the dicky and when police started searching vehicle he foisted the same on the accused. PW-2 has further denied that he got frightened because he was carrying Charas, as such, he stopped the vehicle after covering some distance. According to PW-2 in his cross examination, it is incorrect that in connivance with the police, he foisted false case against accused Kamla Devi and has also denied that the recovered Charas belonged to PW-2. PW-2 has further denied that he got frightened because he was carrying Charas, as such, he stopped the vehicle after covering some distance. According to PW-2 in his cross examination, it is incorrect that in connivance with the police, he foisted false case against accused Kamla Devi and has also denied that the recovered Charas belonged to PW-2. 7. PW-3, Lady Constable Purnu Devi, had received special report Ext.PJ on 14.3.2006 which she delivered to the Superintendent of Police, Mandi at his residence at 3.30 P.M. 8. PW-4, HC Vinod Kumar, while posted as Assistant Reader in the office of S.P.Mandi, has received special report Ext.PJ. PW-5, HC Inder Dev, posted at relevant time as MHC in Police Station, Gohar, had received two sample parcels sealed with seal impression ‘K’ (marked as A-1, A-2 and a bulk parcel Ext.P-2) which were sealed with seal ‘K’ at 12 places along with specimen seal ‘K’, NCB Form, search and seizure form and other documents and accordingly PW-5 had entered the same in Malkhana Register at Sr.No.536 on 12.3.2006 Ext.PL. 9. PW-6, Constable Jai Singh, who received sample sealed parcels on 13.3.2006 with seal having impression ‘K’ at six places along with specimen seal, NCB Form and other documents vide R.C.No.178/5-06 had deposited at CTL Kandaghat on 14.3.2006. The report of Chemical Examiner in that respect was obtained as Ext.PD/1. 10. PW-7, ASI Paras Ram, received Rukka Ext.PO through Constable Surjit Kumar and accordingly F.I.R. Ext.PQ was registered by him. 11. PW-8, Inspector Dabe Ram, while posted as S.H.O. in Police Station, Gohar, in his endeavour to support the prosecution case, has stated that on giving signal, the driver of the vehicle in question stopped the vehicle after covering some distance. The vehicle in question was driven by PW2 Rakesh Kumar and his relative Raju (DW-1) was sitting along with him by his side and a lady was sitting on the back seat who was carrying a bag putting the same at her side on the seat. On asking PW-2 Rakesh Kumar, could not produce learner’s licence, as such, the vehicle was put under the challan and accordingly a fine of Rs.500/- was imposed by the Court against PW-2. On asking PW-2 Rakesh Kumar, could not produce learner’s licence, as such, the vehicle was put under the challan and accordingly a fine of Rs.500/- was imposed by the Court against PW-2. PW-8 has further stated that on enquiry from the lady, she disclosed her name Kamla alias Dassi, resident of Thunag and she was told for formal check up of her bag and she was bit reluctant, therefore, Sohan Lal, Pradhan, from the nearby Gram Panchayat was called who joined the investigation along with PW-2 Rakesh Kumar and on opening the bag Ext.P-3, a polythene envelope was taken out containing Charas Ext.P-5. Thereafter, PW-8 sent HC Krishan Chand to arrange scale and weights from Naun. Accordingly, he arranged the same from the shop of Narotam Ram, Karyana Merchant and on weighment of the recovered Charas it was found to be 5 Kilograms and two samples of 25 grams each were separated and sealed with seal impression ‘K’ at six places each and marked as A-1 and A-2. The remaining bulk Charas was separately put in a parcel sealed with seal ‘K’ at twelve places. The specimen of seal ‘K’ was taken on pieces of cloth, one of which was Ext.PC bearing the signatures of witnesses and thumb impression of the accused. After fulfilling the formalities, the case property was deposited with MHC Inder Singh along with NCB Form, specimen seals and other documents along with two sample parcels and bulk parcel. Seal ‘K’ after use was handed over to PW-1 Sohan Lal witness. Witness Sohan Lal, Narotam Lal and accused were related to each other. PW-8 has further stated that Kamla Devi (accused) had hired the taxi of Rakesh Kumar (PW-2) for going to Chail Chowk Bassa and was carrying the Charas in her bag Ext.P-3. In cross examination, PW-8 has stated that he was doing traffic checking on that day and had not challaned any other vehicle on that day and it took half an hour for searching, sealing and preparing the memos on the spot. PW-8 had sent Surjit Kumar Constable to call PW-1 Sohan Lal Pradhan of concerned Panchayat. However, PW-8 has very specifically indicated in his cross examination that “I felt no necessity to call any other person as Rakesh and Raju were already present on the spot. PW-8 had sent Surjit Kumar Constable to call PW-1 Sohan Lal Pradhan of concerned Panchayat. However, PW-8 has very specifically indicated in his cross examination that “I felt no necessity to call any other person as Rakesh and Raju were already present on the spot. I felt no necessity to call two other persons from the locality.” PW-8 has denied that all the inmates of the vehicle, including the accused and driver, were brought outside and thereafter search of the vehicle was done and has also denied that Ext.P-3 was recovered from the dicky of the vehicle as there is no dicky in the said vehicle. PW-8 has also denied that the proceedings were conducted inside the room at Police Station, Gohar and also denied that all the three persons along with Pradhan were made to sit out side the Police Station in Verandah. PW-8 has also stated in his cross examination that he had not made any enquiry that Kamla (accused ) boarded the vehicle along with bag at Thunag except from Rakesh (PW-1) and Raju (DW-1) both related to each other as uncle and nephew in relation. 12. DW-1 (Raju) has stated that accused Kamla is his siste/cousin and on 12.3.2006 when he, along with the accused, was going to Gohar to his relation, he came to Thunag to get the bus but he could not get the same on the said date. DW-1 had also made enquiry from the taxi drivers as to whether any taxi was going to Gohar, but Rs.700/-was demanded by them as charges, in the meanwhile, taxi (Jeep) No.HP01M-3696 driven by Rakesh Kumar came from Janjehali side and on giving signal, it stopped nearby to DW-1, on enquiry he told that he was going to Ner Chowk. DW-1 requested PW-2 Rakesh Kumar to take him also to Gohar to which he agreed. Accordingly, DW-1 and accused occupied the seats in the Jeep. DW-1 requested PW-2 Rakesh Kumar to take him also to Gohar to which he agreed. Accordingly, DW-1 and accused occupied the seats in the Jeep. At that time, as per testimony of DW-1, both were not holding any bag and both sat on the back seat of the driver and when they reached near village Naun, they were stopped by the police party and after stopping the vehicle, they took DW-1 and accused out and searched the taxi and one bag was taken out by them from the back side of the seat kept on the parapet, thereafter, one person was called by the police and then DW-1 and accused were taken to Police Station, Gohar and were made to sit on the bench in the Police Station outside the room and after some time signatures were obtained on many papers. DW-1 and PW-2 (Rakesh Kumar) were sent by the police, whereas, accused Kamla was taken into custody. In cross examination, DW-1 has stated that he did not remember the name of his grand father, however, the name of his grand father and that of accused is the same and subsequently said that the name of his grand father is Daru Ram and accused Kamla has no nick name and denied that accused is known by the name of Dassi and had also denied that Rakesh Kumar (PW-2), driver of the taxi in question was his friend and mostly was accompanying him. DW-1 in his cross examination has also stated that when the taxi was intercepted, at that time DW-1, accused Kamla Devi and driver Rakesh Kumar (PW-2) were present and none else were inside the taxi and DW-1 has also stated that it is incorrect that he was not sitting with the driver on the front seat and Kamla Devi was sitting on the back side of the seat and has further stated that DW-1 and accused were sitting on the back seat and also stated that the accused was also holding the bag under her hands on the back seat of the taxi. 13. Mr.Guleria, learned counsel appearing for and on behalf of the convict / appellant, has made following submissions:-(i) No independent witness was associated by the prosecution. 13. Mr.Guleria, learned counsel appearing for and on behalf of the convict / appellant, has made following submissions:-(i) No independent witness was associated by the prosecution. Nothing is emanating from the prosecution witnesses or the defence witnesses that endeavour was made on the part of the prosecution and Investigating Officer to associate independent witness of the locality; (ii) Samples, which were drawn by the Investigating Officer, were not according to the provisions of Section 55 of the NDPS Act, as such, the prosecution case has been shattered; (iii) PW-2 (Rakesh Kumar), the driver and DW-1 (Raju) though were occupants of the vehicle when alleged recovery of contraband goods were made from Kamla Devi (convict – appellant) but for the reasons best known to the prosecution they were not treated as co-accused or accomplices; (iv) Samples allegedly taken out from the contraband goods recovered on the relevant date were not properly handled and were not kept in the Malkhana, as such, the possibility of tampering of samples cannot be ruled out; and (v) The contraband goods alleged to have been recovered cannot be said to be recovered from the exclusive and conscious possession of the convict / appellant Kamla Devi. (vi) PW.2 Rakesh Kumar, the driver of the taxi HP-01M-3696 has not supported the prosecution case and was not even declared hostile, as such, the testimony of PW.2 is binding on the prosecution but defence can derive the benefit of the testimony of PW.2. (vii) PW.1 (Sohan Lal), the Pradhan Gram Panchayat has stated in cross-examination that normally he puts signatures on papers after going through the contents therein. However, in present case, he has put the signatures on the relevant papers without reading the contents therein. PW.1 has also stated that,” I was sitting outside the Police Station in the verandah and police conducted the proceedings inside the Police Station…… ….. ….. …..It is incorrect that later-on we were called inside the room by the police and signatures obtained by the police on papers.” PW.1 has also stated that “I have not seen anything in possession of Kamla Devi as I came later-on. I have seen one bag lying on the road by side of vehicle. ….. …..It is incorrect that later-on we were called inside the room by the police and signatures obtained by the police on papers.” PW.1 has also stated that “I have not seen anything in possession of Kamla Devi as I came later-on. I have seen one bag lying on the road by side of vehicle. The said bag was opened by the police and Charas was recovered from the said bag wrapped in polythene envelope.” PW.1 (Sohan Lal) though said to have been relied upon by the prosecution, however, his testimony does not support the prosecution case as he has put the signatures without looking the contents in the search and seizure and had not seen anything in possession of convict / appellant Kanta Devi as he came later-on and he has only observed that bag from which the alleged recovery of contraband goods was made was lying on the road by side of the vehicle. Likewise, PW.2 (Rakesh Kumar) the driver of the taxi, accompanying all along the convict / appellant, has stated that that PW.1 (Sohan Lal) was called on the spot and PW.2 did not remember to whom the seal was handed over. PW-2, in his cross examination, has further stated that, “My signatures were obtained by the police on the various papers in the Police Station. We were sitting on bench in the verandah of the Police Station. I do not know where the police had prepared the parcels and papers as I was sitting outside the Police Station in verandah. My signatures were obtained after 10 – 15 minutes of arrival in Police Station. It was almost darkness at that time.” (viii) In view of the testimony of PW.2 made in cross-examination, he was sitting outside the Police Station and his signatures were obtained by the police on various papers only after 10-15 minutes of his arrival in the Police Station. The prosecution was to declare him (PW.2) hostile, however, since PW.2 was not declared hostile and his testimony was binding upon the prosecution, in these circumstances the defence can derive the benefit to the extent testimony of PW.2 supports the defence case. It appears that nothing has happened in his presence and his signatures were obtained in Police Station. The prosecution was to declare him (PW.2) hostile, however, since PW.2 was not declared hostile and his testimony was binding upon the prosecution, in these circumstances the defence can derive the benefit to the extent testimony of PW.2 supports the defence case. It appears that nothing has happened in his presence and his signatures were obtained in Police Station. However, PW.2 has only supported the prosecution case that he did not keep bag Ex.P3 in dicky of his taxi and in view of his testimony he has not connived with the police to falsely implicate Kamla Devi, convict / appellant and has indicated that a poly bag containing charas was found inside the said bag Ex.P3 which was being carried by the convict / appellant Kamla Devi. 14. Mr.Guleria, learned counsel for the convict / appellant, has referred and relied upon the following decisions:-In Ajmer Singh versus State of Haryana, (2010) 3 SCC 746, it was observed by Hon’ble Supreme Court that while searching the bag, briefcase etc. carried by the accused person, compliance of provisions of Section 50 of the NDPS Act is not required. It was also observed that the testimony of official witnesses, even in absence of its corroboration by independent witness, can form basis of conviction if the Court is satisfied, on careful and cautious appreciation of evidence that it is otherwise believable. Arrest and recovery made by the police could not necessarily be vitiated if the Court finds that despite making reasonable efforts, police failed to associate public witnesses with the raid or arrest. The relevant paragraphs of the judgment of Ajmer Singh’s case (supra) are being referred as below:-“19. The learned counsel for the appellant has submitted that the evidence of the official witnesses cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned counsel. It is clear from the testimony of the prosecution witnesses PW-3, Paramjit Singh Ahalwat, DSP, Pehowa; PW 4, Raja Ram, Head Constable and PW-5, Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced.” 20. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts, which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence. 21. In the present case, both the trial court andthe High Court by applying recognized principle of evaluation of evidence of witnesses have rightly come to the conclusion that the appellant was arrested and charas was recovered from the possession of the appellant for which he had no licence. We find no good reason to differ from that finding.” In Union of India versus Bal Mukund & Others= (2009) 12 SCC 161=2009(3)Criminal Court Cases 806 (Three Judges Bench) Hon’ble Supreme Court has observed in Paragraphs 10 and 39 as below:-“10. The manner in which a sample of narcotic is required to be taken has been laid down by the Standing Instruction No.1/88, the relevant portion whereof reads as under: (e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package / container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.” “39. There is another aspect of the matter which cannot also be lost sight of Standing Instruction No.1/88, which had been issued under the Act, lays down the procedure for taking samples. There is another aspect of the matter which cannot also be lost sight of Standing Instruction No.1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW-7 had taken samples of 25 grams each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law.” In Noor Aga versus State of Punjab & Another, 2009(1) Criminal Court Cases 230, the Hon’ble Supreme Court has observed as below;-“16. The provisions of the Act and the punishment prescribed therein being indisputably stringent flowing from elements such as a heightened standard for bail, absence of any provision for remissions, specific provisions for grant of minimum sentence, enabling provisions granting power to the Court to impose fine of more than maximum punishment of Rs.2,00,000/- as also the presumption of guilt emerging from possession of Narcotic Drugs and Psychotropic substances, the extent of burden to prove the foundational facts on the prosecution, i.e., ‘proof beyond all reasonable doubt’ would be more onerous. A heightened scrutiny test would be necessary to be invoked. It is so because whereas, on the one hand, the court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but, on the other, it is also necessary to uphold the individual human rights and dignity as provided for under the UN Declaration of Human Rights by insisting upon scrupulous compliance of the provisions of the Act for the purpose of upholding the democratic values. It is necessary for giving effect to the contempt of ‘wider civilization’. The courts must always remind itself that it is a well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. A higher degree of assurance, thus, would be necessary to convict an accused. It is necessary for giving effect to the contempt of ‘wider civilization’. The courts must always remind itself that it is a well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. A higher degree of assurance, thus, would be necessary to convict an accused. In State of Punjab Versus Baldev Singh, 1999 (2) Apex Court Journal 261(S.C): (1999) 3 SCC 977, it was stated: “It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed.” (See also Ritesh Chakravarty Versus State of Madhya Pradesh, 2006(4) Criminal Court Cases 405 (S.C): JT 2006(12) SC 416) It is also necessary to bear in mind that superficially a case may have an ugly look and thereby, prima facie, shaking the conscience of any court but it is well settled that suspicion, however high may be, can under no circumstances, be held to be substitute for legal evidence. “32. Recently, this Court in State of Kerala & ors. Versus Kurian Abraham (P) Ltd & Anr (2008) 3 SCC 582, following the earlier decision of this Court in Union of India Versus Azadi Bachao Andolan (2004) 10 SCC 1 held that statutory instructions are mandatory in nature. Logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance of these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution. Omission on the part of the prosecution to produce evidence in this behalf must be linked with second important piece of physical evidence that the bulk quantity of heroin allegedly recovered indisputably has also not been produced in court. Respondents contended that the same had been destroyed. However, on what authority it was done is not clear. Law requires that such an authority must flow from an order passed by the Magistrate. Respondents contended that the same had been destroyed. However, on what authority it was done is not clear. Law requires that such an authority must flow from an order passed by the Magistrate. Such an order whereupon reliance has been placed is Exhibit PJ; on a bare perusal whereof, it is apparent that at no point of time any prayer had been made for destruction of the said goods or disposal thereof otherwise. What was necessary was a certificate envisaged under Section 110 (1B) of the 1962 Act. An order was required to be passed under the aforementioned provision providing for authentication, inventory etc. The same does not contain within its mandate any direction as regards destruction. The only course of action the prosecution should have resorted to is to obtain an order from the competent court of Magistrate as envisaged under Section 52-A of the Act in terms whereof the officer empowered under Section 53 upon preparation of an inventory of narcotic drugs containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs of psychotropic substances or the packing in which they are packed, country of origin and other particulars as he may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings there-under make an application for any or all of the following purposes: “(a) Certifying correctness of the inventory so prepared; or (b) Taking, in the presence of such Magistrate, photographs substances and certifying such photographs as true; or (c ) Allowing to draw representative samples of such drugs or substances in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.” Sub Section (3) of Section 52A of the Act provides that as and when such an application is made, the Magistrate may, as soon as may be, allow the application. The reason wherefor such a provision is made would be evident from sub section (4) of Section 52A which reads as under: ‘52A. Disposal of seized narcotic drugs and psychotropic substances. The reason wherefor such a provision is made would be evident from sub section (4) of Section 52A which reads as under: ‘52A. Disposal of seized narcotic drugs and psychotropic substances. (4) Notwithstanding anything contained in theIndian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub section (2) and certified by the Magistrate, as primary evidence in respect of such offence. Concededly neither any such application was filed nor any such order was passed. Even no notice has been given to the accused before such alleged destruction.” In Gaunter Edwin Kircher versus State of Goa, AIR 1993 SC 1456, where recovery of two pieces of Charas weighing 7 grams and 5 grams were made. However, only one of the pieces, weighing less than 5 grams, was sent for chemical analysis, in such circumstances, it could not be said that 12 grams of narcotic drug was recovered from the accused, as such, concerned authorities were directed to send entire quantity or sufficient quantity by way of samples from each piece for chemical analysis. In Javed A. Bhat versus Union of India, 2007 Cri.L.J. 3145, learned Single Judge of Bombay High Court, has observed that when recovery of contraband goods in pieces in the form of cigars or flats were made from the accused then the failure of the prosecution that in not sending the entire seized quantity found with the accused and sending only some pieces weighing 50 grams for chemical analysis even if found to be containing Charas, then it cannot be presumed that other pieces also contained Charas and in these circumstances it has to be concluded that the accused was in possession of only 50 grams of Charas, consequently, the accused cannot be convicted and sentenced under Section 20(b)(ii)(B) of the NDPS Act but was to be convicted and sentenced under Section 20(b)(ii)(A) of the NDPS Act. In Krishan Chand versus State of H.P., Latest HLJ 2009 (HP) 890, learned Single Judge of this Court in Paragraph-14 has observed as below:-“14. ... ... Wherein the recovery of 1.35 KG Hashish was made from the accused comprising of numerous cigar flats and flat slabs. In Krishan Chand versus State of H.P., Latest HLJ 2009 (HP) 890, learned Single Judge of this Court in Paragraph-14 has observed as below:-“14. ... ... Wherein the recovery of 1.35 KG Hashish was made from the accused comprising of numerous cigar flats and flat slabs. The sample material was taken 705 grams randomly on analysis was positively tested. The remaining bulk was not analyzed. Thus the accused was given the benefit of doubt that the remaining bulk was not Hashish and the accused was held guilty only of 705 gms of Hashish as having been conclusively proved, thus, this conviction was altered to one under Section 20(b) (ii) (B) of the Act.” In Bhola Ram Kushwaha versus State of Madhya Pradesh, AIR 2001 SC 229, where the accused allegedly was in possession of brown sugar and glaring discrepancies were noticed in the statements of prosecution witnesses and all material particulars Investigating Officer contradicted panch witnesses. There was failure on the part of the prosecution to associate three Constables, who accompanied Investigating Officer as witnesses, as such, the prosecution was said to have failed to prove offence beyond all reasonable doubts and the accused was entitled to acquittal. 15. In view of the decision in Mukhtiar Ahmed Ansari versus State (NCT of Delhi), (2005) 5 SCC 258, learned counsel for the convict / appellant has submitted that the evidence of prosecution witness did not support the prosecution case, the said witness was not declared hostile, however, it was observed that the accused can rely the testimony of such witness i.e. the testimony of such prosecution witness who did not support the prosecution case and had not been declared hostile. For reference, Paragraphs-29, 30 and 31 are being reproduced herein-below:- “29. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case as PW-1. He, however, did not support the prosecution. The prosecution never declared PW-1 "hostile". His evidence did not support the prosecution. Instead, it supported the defence. The accused hence can rely on that evidence. 30. A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan, JT (2000) 7 SC 549. He, however, did not support the prosecution. The prosecution never declared PW-1 "hostile". His evidence did not support the prosecution. Instead, it supported the defence. The accused hence can rely on that evidence. 30. A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan, JT (2000) 7 SC 549. In that case, the evidence of the Doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The Doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the Doctor and it was binding on the prosecution. 31. In the present case, evidence of PW-1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to police in which police had gone to Bahai Temple and apprehended the accused. When Goel did not support the case, accused can rely on that evidence.” 16. In Raja Ram versus State of Rajasthan, (2005) 5 SCC 272, similar view has also been taken indicating that the prosecution witness, who was not declared hostile, defence can rely upon evidence of such witness and it would be binding on the prosecution that the testimony of such prosecution witness who did not support the prosecution case and has not been declared hostile, and the evidence of such witness, if relied upon by the defence, would bind the prosecution. 17. In Bhagwan Dass etc. versus State of Himachal Pradesh, 2003 Cri.L.J. 536, this Court (DB) has observed that search of the bag lying between accused persons, sitting on the roadside, was carried out and the accused persons were alleged to have found in possession of container containing frozen ghee and underneath it Charas in the form of tablets, wrapped with paper, was recovered. However, no evidence was shown as to in whose conscious possession the bag was recovered and guilt of the accused was not established beyond reasonable doubt, as such, their conviction was set aside. 18. However, no evidence was shown as to in whose conscious possession the bag was recovered and guilt of the accused was not established beyond reasonable doubt, as such, their conviction was set aside. 18. In the light of above submissions made on behalf of the convict/appellant, we see that Inspector Dabe Ram (PW.8) alongwith H.C. Krishan Lal, Lady Constable Bimla Devi and Constable Surjit Kumar on 12.3.2006 checked the taxi No.HP.01-3696 coming from Kanda side on its way to Chail Chowk and on search of the convict/appellant, associating Sohan Lal (PW.1) Pradhan Gram Panchayat, 5 Kgs of charas was recovered from poly bag Ex.P4, out of which two samples of 25 grams each were taken out and sealed with seal ‘K’ and marked them as A-1 and A-2 and remaining bulk charas was put in separate parcel and sealed with seal ‘K’ at 12 places. The specimen of seal ‘K’ was taken on pieces of cloth, one of which is Ext.PC bearing thumb impression of accused and signatures of the witnesses. The Investigating Officer took into possession the sample parcels as well as bulk parcel and attachment from Ext.PB vide memo Ext.PA bearing signatures of PW-1 Sohan Lal. The copy of the search memo Ext.PA was supplied to the accused and the Investigating Officer also took specimen of the seal on NCB form Ext.PO and prepared Rukka Ext.PQ and the same was sent through Constable Surjit Kumar to Police Station, Gohar for registration of the case on the basis of which F.I.R. Ext.PQ was registered and in that sequence accused was arrested. Thereafter, Dabe Ram (PW-8), the Investigating Officer, produced and deposited the case property with Inder Dev (PW-5) deployed as MHC in Police Station, Gohar which was entered in the Malkhana register at serial No.536 vide Ext.PL and PW-5 handed over the sample parcel along with specimen seal and NCB form vide R/C No.178/05-06 to Jai Singh (PW-6) who took the same and deposited with CTL Kandaghat on 14.3.2006 and on back journey, deposited the R/C with the MHC and the report of Chemical Examiner Ext.PD/1 was obtained. 19. It is clear, that the samples were taken randomly, and the formalities of putting seal on the samples and making formalities of sending the samples for chemical examination, were made by the prosecution. 19. It is clear, that the samples were taken randomly, and the formalities of putting seal on the samples and making formalities of sending the samples for chemical examination, were made by the prosecution. But at the initial stage as well as at the trial stage, the procedure adopted by the prosecution for taking out the samples and sending the same for chemical examination was not challenged. No cross-examination to that effect was also made on behalf of the convict/appellant. It is also not the case of the convict/appellant that the samples taken from the contraband goods, were not representative. The sampling process was also not assailed on behalf of the convict/appellant in the cross-examination of the prosecution witnesses. No suggestion was also put to PW.8 Inspector Dabe Ram, who made search and assessed the contraband goods and took out the samples. The non compliance of standing instruction No.1/88 regarding manner of taking out or drawing out the samples, was also not taken as a ground of appeal. Therefore, in the facts and circumstances, it is too late in the day for the appellant/convict to come out with a plea that the sample of the recovered contraband goods was not representative. It would be pertinent to refer some observations made by this Court (D.B) in its judgment dated 15.10.2009, in Criminal Appeal No.77 of 2006 titled as Harjit Singh Versus State of H.P. For convenience, relevant paragraph of Harjit Singh (supra) extracted as below:-“To establish that the recovered stuff was Charas, Pw11 stated that The case property alongwith the samples was deposited with MHC in the malkhana and one of the two samples was sent through C. Pawan Kumar alongwith police docket, which also contained NCB forms and sample of seal as testified by C. Pawan Kumar on oath before the learned trial court. The sample was deposited in the Laboratory. The report of the Chemical Analyst Ex.PW11/H certifies that on 21st April, 2005 the sample was deposited in the laboratory by the said constable and the seals tallied with the sample of seal sent separately and also with facsimile of the seal on the NCB form, which were found intact and unbroken. The said report also testified that the sample tested positive as it contained 32.7% resin, which is a content of Charas. The said report also testified that the sample tested positive as it contained 32.7% resin, which is a content of Charas. We find that the link evidence is also complete from the time of recovery of the alleged offending article and taking sample of the contraband till its examination in the laboratory. Thus in these circumstances even the nonproduction of seal by PW2 Sardari Lal, who turned hostile to the prosecution, is not fatal to the prosecution and there is overwhelming evidence to hold that the recovered stuff from the appellant is Charas. Thus the learned counsel for the appellant Sh. Vinay Thakur, confronted with the above position put his reliance on the judgment of apex Court in Mr.Gaunter Edwin Kircher Vs. State {AIR 1993 SC 1456} and submitted that the recovered stuff was in the shape of wicks and balls and the Investigating Officer not spell out whether he had taken the sample from the wicks or from the balls or after mixing and making it homogenous, so as to make it a representative sample. The learned counsel further submitted when there is no such evidence on record, it cannot be presumed by any stretch of imagination that the sample so taken was of a representative character thus it can also not be said that the remaining stuff would be ‘Charas’. According to him, at the worst the appellant can be held responsible for keeping in his possession the resin contents in 50 grams sample parcel which was tested positive on its examination by the laboratory, which falls within the definition of “small quantity”. We have carefully examined the above submissions and have carefully gone through the judgment of the apex court. In Mr. Gaunter Edwin Kircher’s case supra, the accused was arrested with only two pieces of charas weighing 7 gms. and 5 gms. Respectively and only one piece was sent for chemical analysis and the said piece was found to have been less than 5 gms. In Mr. Gaunter Edwin Kircher’s case supra, the accused was arrested with only two pieces of charas weighing 7 gms. and 5 gms. Respectively and only one piece was sent for chemical analysis and the said piece was found to have been less than 5 gms. Considering these facts, the Supreme Court observed that from the report of the chemical analyst it could not be presumed or inferred that the substance and the other piece weighing 7 gms, which was not sent for analysis also contained Charas and it was also observed that it had to be borne in mind that the act applied to certain Narcotic drugs and psychotropic substances and not to all kind of intoxicating substances and in any event, in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it would not be safe to hold that the prosecution could prove that 12 gms. of Charas was recovered from the accused. The Supreme Court thus held that the prosecution could prove positively that the Charas weighing about 4.57 gms. was recovered from the accused and the failure to send the other piece had given rise to that inference. In the case at hand, the total quantity recovered was 5 Kgs. or say a huge quantity. The Act and the Rules do not provide for sending the entire quantity for analysis nor do say that some portion of each piece from the recovered stuff should be separated as sample. Samples are normally taken by picking up a few pieces at random. But in the present case, it is not the case of the defence that the sample taken from the stuff, recovered from the appellant, was not representative. The sampling process was not assailed in the cross-examination of any of the witnesses. In particular no suggestion was put to PW11 Inspector Gurdial Singh, who seized the stuff and took out a sample, that the sample taken by him did not represent the recovered stuff. It is also pertinent to note even no such ground was taken in the grounds of appeal. Therefore, we are of the considered view that it is too late in the day for the appellant to come out with a plea that the sample of the recovered stuff was not representative. 20. It is also pertinent to note even no such ground was taken in the grounds of appeal. Therefore, we are of the considered view that it is too late in the day for the appellant to come out with a plea that the sample of the recovered stuff was not representative. 20. The relevant observation of this Court D.B. made in its judgment dated 3.11.2009 in Criminal Appeal No.242 of 2006, titled as Deepak Thapa Versus State of Himachal Pradesh are also necessary. The relevant paragraph is extracted as below:- “We have also considered this aspect of the matter. In fact, in the present case, the total quantity recovered was 12.700 Kgs., which is a huge quantity. The Act and the Rules do not provide for sending of the entire quantity of the recovered stuff to the chemical examiner for its analysis nor there is any provision that some portion of each piece from the recovered stuff should be separated as sample. Samples are normally taken randomly by picking up a few pieces. It is not the case of the appellant that the sample taken from the stuff, recovered from the appellant, was not representative. No such suggestion was put to PW.6 Head Constable Narain Singh or any other witness, who seized the stuff and witnessed the sampling process that the sample taken by him did not represent the recovered stuff. Therefore, we are of the considered view that it is too late in the day for the appellant to come out with the plea that the sample of the recovered stuff was not representative.” 21. In the present case, the contraband goods were recovered from the conscious and exclusive possession of the convict/appellant Kamla and minor contradictions and inconsistencies as have been highlighted by learned counsel for the convict/appellant do not make the prosecution case fatal. 22. In the present case, the contraband goods were recovered from the conscious and exclusive possession of the convict/appellant Kamla and minor contradictions and inconsistencies as have been highlighted by learned counsel for the convict/appellant do not make the prosecution case fatal. 22. The learned Senior Additional Advocate General has rightly referred and relied upon several decision e.g., Dimple Gupta (minor) Versus Rajiv Gupta, AIR 2008 SC 239, Kulwinder Singh Versus State of Punjab, AIR 2007 SC 2868, Kalegura Padma Rao & Another Versus State of A.P., AIR 2007 SC 1299, State of Punjab versus Hakam Singh, (2005) 7 SCC 408, Krishna Mochi & Others versus State of Bihar,(2002) 6 SCC 81 and Leela Ram (Dead) through Duli Chand Versus State of Haryana & Another, (1999) 9 SCC 525, and has submitted that since in the facts and circumstances, there are no material discrepancies or contradictions in the testimony of the witnesses, and their evidences cannot be disbelieved merely on the basis of some normal, natural or minor contradictions, inconsistencies, exaggerations, embellishments etc. 23. In totality of the facts and circumstances and on appraisal of the evidence and materials on record, in our considered view the police team apprehended the appellant/convict and on search recovered contraband goods and the same were sent for chemical analysis and all the formalities were made in usual course and in view of the chemical examination, it was found that the contraband goods recovered from the appellant/convict, were charas. Though the independent witnesses have not been associated at the spot, even then the prosecution witnesses cannot be disbelieved. In the facts and circumstances, the learned Special Judge has rightly arrived at the findings that the prosecution has able to prove its case beyond reasonable doubt and there is no scope of interference in the conclusion arrived at by the Special Judge in his judgment dated18.6.2007. Criminal Appeal 246/2007 being devoid of merits, is accordingly dismissed.