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2013 DIGILAW 662 (UTT)

POORAN SINGH v. STATE OF UTTARAKHAND

2013-10-22

ALOK SINGH

body2013
JUDGMENT Hon’ble Alok Singh, J. Present appeal is directed against the judgment and order dated 05.05.2012, passed by Special Sessions Judge [N.D.P.S. Act]/Additional Sessions Judge Nainital, District Nainital, in Special Session Trial No. 37 of 2011, whereby appellant was held guilty for the offence punishable under Section 20 of the N.D.P.S. Act and was sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.1 lac and in default of making payment of fine, to undergo additional imprisonment of two years. 2. As per the prosecution story, PW1 S.I. Kailash Singh Negi alongwith Constable PW2 Harshvardhan Singh, PW3 Constable Prakash Chandra and Ramesh Rana left the Police post vide G.D.No. 7 for checking; when police party reached near Kawarath Bridge, Police personnel noticed appellant was standing on the side of the road with a bag; having seen the police party, appellant started running; he was asked to stop, however, he started rushing towards the river; on suspicion, he was chased and apprehended at about 9:15 a.m.; appellant was asked as to why he has started running after seeing the police party; on this, appellant disclosed that he was carrying charas in the bag to sell the same in the Haldwani city; appellant was told about his right to be searched before the Gazetted officer or Magistrate; appellant told the police party that he did not want to be searched in the presence of Magistrate or Gazetted Officer; thereafter, bag was taken from the appellant and it was found that he was carrying 1 kg. and 120 gram charas; 50 gram charas was taken out as sample; contraband and sample so recovered were kept under the seal and signature of PW1 S.I. Kailash Singh Negi and sample seal was also got prepared on the spot and, thereafter, appellant, sample so drawn, sample seal and contraband so recovered were taken to the police post Koshyakutoli and chick F.I.R. was got registered. 3. 3. Initially, investigation was commenced by PW1 S.I. Kailash Singh Negi himself; however, on 06.03.2011, investigation was handed over to PW5 S.I. Umed Singh Danu; sample of contraband drawn on the spot was sent for chemical examination to F.S.L. Dehradun on 07.03.2011 through Constable Diwan Ram PW4; sample was delivered at F.S.L. Dehradun on 10.03.2011 by Constable PW4 Diwan Ram; F.S.L. reported vide report dated 13.07.2011 that sample was of the charas; having investigated the matter, PW5 S.I. Umed Singh Danu submitted the chargesheet. 4. Learned Trial Court was pleased to frame charges against the appellant for the offence punishable under Section 20 of the N.D.P.S. Act. Appellant denied the charges and claimed trial. 5. To prove the prosecution story, Arresting Officer PW1 S.I. Kailash Singh Negi, PW2 Constable Harshvardhan, PW3 Constable Prakash Chandra, PW4 Constable Diwan Ram and PW5 Investigating Officer Umed Singh Danu were examined and, thereafter, statement of appellant was also recorded under Section 313 of the Cr.P.C. 6. Having examined the entire material made available on record, learned Trial Judge was pleased to pass the judgment and order impugned in the present appeal. Feeling aggrieved, appellant has preferred the present appeal through Jail authorities. 7. I have heard Mr. Narayan Har Gupta, learned Amicus Curiae for the appellant and Mr. Asif Ali, learned Brief Holder for the he State and have carefully perused the record. 8. Perusal of the case diary as well as the lower Court’s record would reveal that appellant was produced for the first time for remand under Section 167 Cr.P.C. before the Special Sessions Judge, N.D.P.S. Act on 28.02.2011 itself. However, neither the ordersheet nor the case diary demonstrate that alongwith appellant, contraband so recovered from the appellant or sample so drawn were produced before the Special Judge, N.D.P.S. Act. Learned Special Judge has recorded in the ordersheet that appellant was produced before him alongwith case diary and appellant was sent to judicial custody till 14.03.2011. 9. As per the prosecution story, sample seal was prepared by PW1 S.I. Kailash Singh Negi on the spot while keeping the sample of contraband and contraband under his seal and signature. However, sample seal and malkhana register were not produced on the record. 10. 9. As per the prosecution story, sample seal was prepared by PW1 S.I. Kailash Singh Negi on the spot while keeping the sample of contraband and contraband under his seal and signature. However, sample seal and malkhana register were not produced on the record. 10. As per the statement of PW4 Constable Diwan Ram and PW5 Investigating Officer Umed Singh Danu, sample so drawn by PW1 S.I. Kailash Singh Negi on 28.02.2011 was sent for chemical examination to F.S.L. Dehradun under the order of the Special Sessions Judge N.D.P.S. Act, Nainital dated 07.03.2011 through PW4 Constable Diwan Ram. However, F.S.L. report dated 13.07.2011 reveals that sample was handed over at F.S.L. Dehradun on 10.03.2011. 11. I have carefully examined the statement of PW1 S.I. Kailash Singh Negi, PW4 Constable Diwan Ram and PW5 Investigating Officer Umed Singh Danu. It has not been made clear under whose custody contraband and sample of contraband were kept and remained between 28.02.2011 to 07.03.2011. Moreover, if sample was handed over to PW4 Constable Diwan Ram on 07.03.2011 as to why same was delivered to F.S.L. on 10.03.2011. In the absence of malkhana register, it cannot be said as to whether contraband and sample were deposited in the malkhanan in intact condition and remained intact and untouched till sample was produced before the Court on 07.03.2011. In the absence of sample seal so prepared by the Arresting Officer PW1 S.I. Kailash Singh Negi, it cannot be said that contraband and sample were kept in the seal and signature of PW1 S.I. Kailash Singh Negi. 12. Hon’ble Apex Court in the case of State of Rajasthan Vs. Gurmail Singh, reported in (2005) 3 SCC 59 , in paragraph 3 has held as under:- “We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20-5-1995, the malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW6 on 5-6-1995. We further find that no sample of the seal was sent along with the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. We further find that no sample of the seal was sent along with the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent.” 13. In view of the dictum of the Hon’ble Apex Court in the case of Gurmail Singh (Supra), sample seal and malkhana register are most important link evidence and in the absence of important link evidence, prosecution story becomes highly doubtful. 14. PW1 S.I. Kailash Singh Negi and PW2 Constable Harshvardharn stated on oath that information to the superior officers were sent through telephone on 28.02.2011 itself about the arrest of the appellant and seizure of the contraband. While seizure memo, exhibit A3, contains that information about the arrest of the appellant and seizure of the contraband would be sent to the superior officer by telephone as well as through proper channel. There is absolutely no paper on record to suggest that information about the arrest of the appellant and seizure of the contraband from the appellant was ever sent to the superior officers as required under Section 57 of the N.D.P.S. Act. 15. In view of the discussion made hereinbefore, in the firm opinion of this Court, prosecution has failed to prove the prosecution story beyond reasonable doubt. Therefore, conviction of the appellant seems to be totally unjustified. Consequently, impugned judgment does not sustain in the eyes of law. 16. Therefore, present appeal is allowed. Impugned judgment and order passed by the learned Special Judge N.D.P.S., Naintial is hereby set aside. 17. Appellant stands acquitted from the charges leveled against him. Appellant is in jail. He shall be released forthwith, if not wanted in any other case. 18. Let copy of the judgment alongwith L.C.R. be sent back to the lower court for information and compliance.