State of Himachal Pradesh vs Naranjan Singh

Deepak Gupta, J.—This appeal filed by the State is directed against the judgment dated 03.08.1998 in Sessions Trial No. 4 of 1998 whereby the learned Special Judge, Bilaspur, acquitted the accused of having committed an offence punishable u/s 18 of the Narcotic Drugs and Psychotropic Substance Act, 1985(hereinafter referred as the Act).

The prosecution case in brief is that on 09.01.1998, PW8 SI Anant Ram, constable Rajesh Kumar, Constable Dhani Ram and Constable Raj Kumar had gone to Village Majari alongwith Head Constable Prakash Chand in connection with investigation of FIR No. 86/96. In the evening when they were going towards Village Dabat, they found a truck parked on the road and two persons Narvair Singh and Karnail Singh were standing near their houses. One person came from the opposite direction who on seeing the police tried to hide behind the truck. This aroused the suspicion of the police officials who apprehended that person. On inquiry the said person disclosed his name to be Naranjan Singh (accused). The Investigating Officer gave an oral option to the accused as to whether he wants to be searched before a Magistrate or a Gazetted Officer or by the police party. The accused gave his consent in writing in Gurmukhi, Ex.PW1/A, to be searched by the police. Thereafter the Investigating Officer gave his personal search to the witnesses vide memo Ex.PW1/C. Thereafter the accused was searched and two polythene envelopes containing opium were recovered and on weighing, this opium was found to be 80 grams. Two samples of 10 grams each were drawn. Thereafter the remaining bulk opium as well as the samples were sealed and the seal was handed over to Narvair Singh. The case property was taken into possession vide memo Ex.PW1/D and the statements of the witnesses were recorded and other codal formalities were completed. The case property was sent for chemical examination on 19.01.1998, but the same was returned with the objection that the sample should be sent alongwith the NCB Form. Thereafter it was again sent to the C.T.L Kandaghat on 27.01.1998 alongwith the NCB Form. After the sample was sent for the second time to C.T.L Kandaghat, the Chemical Examiner vide report Ex.PW-8/C opined that the sample was of opium.

On the basis of this evidence, the accused was challaned for having committed an offence u/s 18 of the Act.

The learned trial court after trial acquitted the accused mainly on the ground that Section 50 of the Act had not been complied with. It is settled law that option of search in terms of Section 50 can be given orally also. If the response of the accused Ex.PW1/A is read, it clearly shows that he was given an option of being searched either by the police or before the Gazetted Officer or a Magistrate. He opted to be searched by the police officials. Therefore, we are not in agreement with the learned trial court that there was non-compliance of Section 50 of the Act.

Having said so, we find that the accused has to be acquitted in view of the missing links in the case. Admittedly, the accused was apprehended on 9th January, 1998. PW6 HC Sumitter Singh, PS Kot, has clearly stated that the case property was deposited in the malkhana by PW8 Investigating Officer on 19.01.1998. Where was this property kept from 09.01.1998 to 19.01.1998? There is no answer to this question. The condition in which this property was kept for 10 days has not been stated by any witness. There is nothing on record to show that this property could not be tampered with during this period. Surprisingly, the Investigating Officer in this case has not even stated as to what was the seal which he used while sealing the case property. This by itself would show that there was a chance of the case property being tampered with. The case property was not resealed by any official and the possibility of the case property being tampered with by the Investigating Officer himself cannot be ruled out. Even the seal impression of the seal has not been produced or proved on record. Therefore, the link evidence especially the evidence from 9th January to 19th January is totally missing and the accused is entitled to be acquitted on this short ground.

There is no merit in this appeal which is accordingly dismissed. Bail bonds are ordered to be discharged.