State of Himachal Pradesh vs Khem Chand

Surjit Singh, J.—State has appealed against the judgment dated 28th March, 2000 of learned Sessions Judge, Kullu, whereby respondent, Khem Chand, who had been tried for an offence u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has been acquitted.

Case of the prosecution is that on 11.10.1996 when PW-9 Inspector, Sanjeev Lakhanpal was present in Gandhi Nagar locality of Kullu town, he received information that a man with charas was going towards Bhuntar on a scooter from Jari side and he has planned to sell that charas at Bhuntar. Written report on the basis of information received by PW-9, Sanjeev Lakhanpal was prepared, which is Ex.PW-6/A1 and it was despatched to Police Station, Kullu for registration of case. Case was registered vide F.I.R. Ex.PW-6/B. Thereafter raiding party was formed by PW-9, Inspector, Sanjeev Lakhanpal. PW-1 Guru Dutt and PW-2, Kamla Devi were associated as independent witnesses. Naka was organized at a place called Hathi Than. Around 9.30 a.m. respondent appeared alongwith a bag. That bag was searched and charas weighing 2 Kgs. 250 Grams was recovered. Two samples each weighing 25 grams were separated from the recovered stuff. Samples and the bulk were made into separate parcels and the same were sealed with a seal that produced impression of letter "D" of English alphabet.

Case property was produced to the S.H.O., who affixed his own seal on all the three parcels. One sample parcel alongwith N.C.B. Form was then returned to PW-9, Sanjeev Lakhanpal, who sent the same alongwith N.C.B. form to Chemical Laboratory through Constable Shiv Ram, PW-8. Another sample was sent to Central Forensic Science Laboratory, Chandigarh by PW-5, Head Constable Sato Kumar, Incharge, Malkhana through ASI Moti Ram. The Central Forensic Science Laboratory, Chandigarh vide report Ex.PW-9/F opined that the sample was of charas.

Respondent was challaned by the trial Court for an offence u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, to which he pleaded not guilty. He was, therefore, put on trial.

During trial, both the independent witnesses turned hostile. Prosecution relied upon the testimony of PW-9, Sanjeev Lakhanpal and sought conviction of the respondent. Trial Court acquitted the respondent holding that since the independent witnesses have not supported the prosecution version, respondent could not be convicted.

We have heard learned Additional Advocate General and also the counsel representing respondent and gone through the record.

We may state at the outset that the view taken by the learned trial Court that the respondent cannot be convicted on account of the independent witnesses not supporting the prosecution case, without analyzing the evidence of police official, who conducted the search and effected recovery, is not right approach. There may be cases where conviction can be based upon the sole testimony of the police officer, who conducts the search and recovers the contraband, if the evidence of such police officer inspires confidence.

However, from the record, we find that the report of the Central Forensic Science Laboratory, Ex.PW9/F does not stand connected with the stuff recovered from the respondent and also the report cannot be used as evidence to come to the conclusion that the recovered stuff was, in fact, charas.

Initially one sample was sent for chemical analysis by PW-9 himself, per his own testimony through Constable Shiv Ram, PW-8. There is no evidence on record suggesting as to what happened to that sample. Second sample was sent to Central Forensic Science Laboratory by PW-5, Shri Sato Kumar, Incharge, Malkhana through ASI, Moti Ram. Moti Ram has not been examined. According to PW-5, sample was entrusted to A.S.I. Moti Ram on 22nd July, 1997. However, the report Ex.PW-9/F shows that the sample was received on 25.7.1997. It is not explained where the sample remained on 23rd and 24th July, 1997. Further, in the report, it is initially type-written that the sample was received through Constable Tikam Ram, No. 122, but after scoring out the name of Tikam Ram, name of Moti Ram, ASI has been handwritten. How and why this change was effected, has not been indicated. Again, the report was though signed on 18th September, 1997 and it bears despatch date as 22.9.1997, it was forwarded to Kullu C.I.D. on 17.12.1997, as is clear from the endorsement appearing on the report.

Above stated position apart, the report does not state as to what tests were carried out to come to the conclusion that the stuff was charas. Even this much is not mentioned as to what was found in the sample which led the Chemical Examiner to conclude that the stuff was charas. The report lacks the basis of the opinion of the concerned Examiner.

For the foregoing reasons, the appeal is dismissed.