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2013 DIGILAW 243 (HP)

HARI OM v. STATE OF HIMACHAL PRADESH

2013-04-05

DEV DARSHAN SUD

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JUDGMENT DEV DARSHAN SUD, J. - 1. THE appellant challenges his conviction under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act') to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.20,000/- and in default of payment of fine to further undergo simple imprisonment for six months. 2. THE prosecution case is that HC Krishan Chand PW-1, HHC Padam Singh, HHC Ramesh Chand PW-2, C.Manoj Kumar, C.Hitender Kumar and HC Prem Pal PW-8 were present at a naka at Rs.5 Miles' on 13.3.2008. At around 4.45 P.M., they spotted the accused coming from Pandoh with a backpack Ex.P-2 on his left shoulder. On seeing the police he became frightened and perplexed and tried to run away, but was apprehended by the police party. The prosecution case is that the place where he was apprehended was a lonely and deserted. On interrogation, he revealed his name as Rahul son of Jai Bhagwan. The circumstances were such that no independent witness was available in which eventuality HC Krishan Chand PW-1 and Constable Manoj Kumar were associated as witnesses. The police party gave their personal search to the accused and the accused was informed about his legal right to be searched before a Magistrate or Gazetted Officer, but the accused adopted the search by the police. On searching of the backpack, one transparent plastic bag Ex.P3 was found containing black coloured substance Ex.P4 which was suspected to be 'charas'. It was weighed and found to be 800 grams. Conductor license Ex.PW-1/C and one name badge bearing No.C-115520 Ex.PW-1/D were recovered from the accused. Two samples each weighing 25 grams were separated to be sent for the purposes of analysis and the remaining 'charas' was resealed. The contraband was sent for chemical analysis. The testimony of ten witnesses was recorded and on conclusion of the trial, the learned Court holds that it was proved beyond reasonable doubt that the contraband recovered from the accused was 'charas' in which eventuality, the accused was found to be guilty for offences under Section 20(b)(ii)(B) of the NDPS Act supra. 3. The testimony of ten witnesses was recorded and on conclusion of the trial, the learned Court holds that it was proved beyond reasonable doubt that the contraband recovered from the accused was 'charas' in which eventuality, the accused was found to be guilty for offences under Section 20(b)(ii)(B) of the NDPS Act supra. 3. BEFORE the learned trial Court it was pointed out that there were material contradictions in the testimony of the witnesses' inter alia PW-1 HC Krishan Chand has stated that the party had gone to the spot in a bus, whereas PW-2 HC Ramesh Chand has stated that they have proceeded on foot. PW-1 HC Krishan Chand stated that the accused was caught on the hill side at a distance of about 15-20 meters towards Pandoh, whereas PW-2 HC Ramesh Chand stated that he was apprehended near a river. Again the point urged was that PW-1 HC Krishan Chand stated that it took about 10 minutes to find out the name of the accused, whereas PW-2 HHC Ramesh Chand stated that the Investigating Officer had waited for independent witnesses for about 30 minutes, but nobody was found. Lastly, PW-1 HC Krishan Chand has stated that the Investigating Officer had not stopped any vehicle, whereas PW-2 HHC Ramesh Chand stated that the Investigating Officer had stopped 2/4 vehicles and asking the occupants to join as independent witnesses. The learned trial Court, on the settled law that minor contradictions do not in any manner efface the veracity of the prosecution evidence, found as a fact that this contradiction was insufficient, more especially, when the testimony of the police officials is consistent with the material particulars of the case. The Court accepted the report of the Forensic Science Laboratory Ex.PW-9/C and proceeded to convict the appellant holding that there was no evidence on record to show that the seals etc. have been tampered with, which point seems to have been urged before the learned trial Court. 4. BEFORE me it was urged by learned counsel appearing for the appellant that proper attention has not been paid by the learned Court below to fundamental fact that the sample had not been properly sent/received in the laboratory and then again received back in the Malkhanna by the police. Learned counsel for the appellant submits that the NCB Form Ex.PW-8/A does not support the case of the prosecution. Learned counsel for the appellant submits that the NCB Form Ex.PW-8/A does not support the case of the prosecution. He submits that section-I of the form does state that the contraband was seized from the accused, but the second part of the form has not been filled in properly. Section-II, which is a form to be used in the laboratory, contained three columns (1) date of receipt in the laboratory, (2) weight (net weight) as found in the laboratory and (3) date of conducting the test and the results of the test and had the sample contained the signatures and stamp of the Chemical Examiner. Between these two, there is a green line which has been drawn but nobody says anything about what these details are. In opposition, learned Additional Advocate General submits that Ex.PW-9/C, which is the result of analysis, is itself sufficient to show that the sample was infact intact when it was received by the laboratory and in this eventuality there was no need to fill in the NCB form. 5. ADVERTING to the evidence of PW-6 HHC Nand Lal, he states that he was posted as MHC in Police Station Sadar from 2005 till 2010. SHO Ashok Kumar handed over him three parcels which were sealed with 7 impressions of seal 'D' and resealed with five impressions of seal 'A', which were marked as A, A-1 and A-2 alongwith NCB-1 form in triplicate, copy of seizure memo, memo of reseal sample seals 'D' and 'A'. These were handed over to him on 13.3.2008. He made an entry in the Malkhana Register at Sr.No.862, copy of which is Ex.PW-6/A and deposited the same in Malkhana. He sent one sample of 'charas' marked as A-1, NCB Form in triplicate, sample seals 'D' and 'A', copy of seizure memo, memo of sealing and resealing to FSL, Junga for analysis through HHC Prabhu Ram on 14.3.2008 vide RC No.78/08 Ex.PW-6/B. He deposited all these articles in the Malkhana and handed over the receipt to him on his return. He states that the case property remained intact in his custody. In cross- examination he states that he did not mention the details of the articles sent by him which according to him were mentioned in the RC. He had taken signatures of Prabhu Ram PW-7 on the register. He states that the case property remained intact in his custody. In cross- examination he states that he did not mention the details of the articles sent by him which according to him were mentioned in the RC. He had taken signatures of Prabhu Ram PW-7 on the register. He could not remember the date of the return of the sample, but it was deposited in the Malkhana. He admits that the entry regarding the return of the case property was not made in the register. PW-7 Constable Prabhu Ram states that he had deposited all the articles with the FSL, Junga on 15.3.2008 and handed over the receipt to MHC on his return. What I find from Ex.PW-9/C is that the specimen seal is not decipherable and is round, whereas in Ex.PW-9/B as also on the NCB Form Ex.PW-8/A seal is in square form. PW-9/C also does not contain the sample of seal 'D' which has been affixed on NCB Form Ex.PW-8/A, coupled with the fact that PW-6 HHC Nand Lal states that no entry was made on the samples having been received back in the Malkhana, indeed creates a serious doubt in my mind that deposited sample which is seized and the sample which was first seized from the accused are not similar. As held by me, I also find that the sample seals do not tally and there is no explanation as to why part-II of the NCB form has not been filled in. The learned trial Court did not pay any attention to this fact. Offences under the Act are serious, but at the same time require certainty of evidence before conviction can follow. 6. IN these circumstances, I hold that the prosecution having not established its case beyond reasonable doubt as the safe custody of the sample has not been established, the judgment of conviction cannot be sustained. This appeal is allowed. The appellant be set at liberty forthwith if not wanted in any other case. The fine amount deposited shall be refunded to him. Appeal is allowed.