State of Himachal Pradesh vs Thakur Dass

R.B. Misra, J.—The present criminal appeal has come up for consideration after leave to appeal u/s 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment dated 1.3.2002 passed by the learned Sessions Judge, Kullu, District Kullu, H.P., passed in Sessions Trial No. 86 of 2001, acquitting the Respondent/accused for offence punishable u/s 20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the ''NDPS Act'') in reference to F.I.R. No. 65/2001 dated 16.7.2001, Police Station, Banjar, District Kullu, H.P.

The prosecution case in brief is that police party consisting of HC-Harbans Kumar (PW-9), Const. Uttam Singh (PW-8), HC-Sandeep Kumar, Const. Tek Chand, Const. Hari Singh and HC-Chet Ram had gone to Bhallan and Hurcha side regarding investigation of case F.I.R. No. 64 of 2001 of Police Station, Banjar. While coming back at about 6.00 p.m. on 16.7.2001 the police party observed the Respondent/accused coming from Sainj side carrying a bag on his shoulder. On suspicion search was taken after taking his consent vide memo Ext. PW 4/A and a polythene packet containing ''charas'' in the shape of tablets, sticks and chapaties were recovered which on weighment was found to be 1.800 kilograms. Three samples of 25 grams each were separated, packed and sealed with seal impression-''H'' and the remaining ''charas'' was sealed with seal impression-''H''. ''NCB Form''/Ext. PW 6/B in triplicate was filled and sample seal Ext. PW 9/A was retained which was entrusted to Sh. Om Parkash (PW-4). Ruka/Ext. PW 9/B was sent to Police Station, Banjar through Const. Uttam Singh (PW-8) and in reference to that F.I.R. (Ext. PW 6/A) was registered and after investigation the case property was produced before the S.H.O. Sanjay Kumar, who resealed the same with his seal impression-T and deposited it with MHC-Mohan Lal (PW-3), who took the case property into Malkhana. The samples were sent to C.T.L. Kandaghat for chemical analysis.After investigation accused/Respondent was charged for the aforesaid offence.

In order to prove its case prosecution examined as many as nine witnesses and the statement of the accused u/s 313 Code of Criminal Procedure was recorded in which he denied the prosecution case.

PW-2 LHC-Vijay Kumar was handed over the case property sample by MHC-Mohan Lal on 17.7.2001 vide R.C. No. 40 of 2001 for taking to C.T.L. Kandaghat alongwith documents, ''NCB Form'' etc. deposited on 18.7.2001 in C.T.L. Kandaghat. PW-2 have however not revealed that case property was sealed with what seal impression.

PW-3 HC-Mohan Lal posted as MHC received four sealed parcels sealed with seal impression ''L'' and ''T'' which he entered into the Malkhana register on 17.7.2001 itself and sent the sealed sample parcel along with ''NCB Form'' and other documents to C.T.L. Kandaghat through LHC-Vijay Kumar (PW-2).

PW-4 Om Parkash has stated that police called him at Police Station, Sainj and obtained his signatures, as such, PW-4 was declared hostile as he has not supported the prosecution case.

PW-5 Kartar Singh has stated that on 17.7.2001 he had gone to Sainj along with PW-4 Om Parkash and was called by the police. Om Parkash (PW-4) was also called by the police to whom he accompanied, however, was told by police that ''charas'' was recovered. PW-5 has, however, not supported the prosecution case being independent witness, as such, both the independent witnesses PW-4 and PW-5 have not supported the prosecution case.

PW-6 Sanjay Kumar posted as S.H.O. Police Station Banjar has stated that on 16.7.2001 at 9.30 p.m. he received a ruka sent by HC-Harbans Singh and in that reference he registered F.I.R. Ext. PW 6/A. On 17.7.2001 HC-Harbans Singh produced four sealed packets along with ''NCB Form'' which PW-6 sealed with seal bearing impression-T and thereafter deposited the case property to MHC-Mohan Lal. In view of the testimony of PW-6 he had resealed the case property and ''NCB Form'' and had put seal impression-''T'' on the case property as well as the ''NCB Form''

PW-7 SI-Kanwar Singh received the special report Ext.PW 7/A.

PW-8 Const. Uttam Singh stated that Om Parkash and Kartar Singh were waiting for bus at Trehra. At that time one person came from Sainj side carrying a bag on his shoulder and on suspicion the bag was searched and 1 k.g. and 800 grams ''charas'' was recovered from his possession. Three samples of 25 grams each were taken and samples were sealed with seal and balance ''charas'' was kept in the bag and was sealed with seal impression-''H''. Seizure memo was prepared and signed by the witnesses. Seal after use was handed over to witness Om Parkash. PW-8 delivered ruka to S.H.O. at 9.30 p.m.

PW-9 HC - Harbans Kumar has stated that on 16.7.2001 he along with HC-Chet Ram, HC-Sandeep Kumar, Const. Tek Chand, Const. Hari Singh and Const. Uttam Singh had gone to Bhalan for investigating case in reference to F.I.R. No. 64 of 2001 and while coming back had observed a person coming from Sainj side from whom 1 kg and 800 grams of ''charas'' was recovered. Three samples of 25 grams each were taken from the recovered ''charas''. Samples were sealed with seal impression-''L''. The remaining ''charas'' was put in same bag and sealed with same seal. ''NCB Form'' in triplicate was filled. PW-9 kept the seal impression Ext. PW 9/A separately and seal after was entrusted to Om Parkash. Ruka Ext. PW 9/B was prepared and sent through constable Uttam Singh to Police Station, Banjar. PW-9 produced the case property to S.H.O. who resealed the same with his seal. PW-9 has further stated in cross examination that accused was checked on suspicion and witnesses Om Parkash and Kartar Singh were already waiting for bus and ''NCB Form'' was filled with PW-9.

On the analysis of the prosecution witnesses and the materials on record, we observe that on 16.7.2001 when 1 k.g. and 800 grams ''charas'' was alleged to have been recovered from the accused/Respondent three samples were taken which were sealed with seal impressions - ''L'' and ''T'' and HC-Mohan Lal deposited four sealed parcels with seal impressions ''L'' and ''T'' in Malkhana register. However, HC-Mohan lal in his statement Ext. DA has indicated that three samples of 25 grams each were taken and were sealed and seal impressions ''H'' and ''T'' were put over it and resealed samples ''H'' and ''T'' and ''NCB Form'' in triplicate over which seals ''H'' and ''T'' were put were deposited in malkhana and samples were sent for chemical examination. The statement of HC Mohan Lal recorded on 21.7.2001 reveals that seal impressions ''H'' and ''T'' were put by way of resealing, whereas, in his statement dated 16.12.2001 four sealed parcels sealed with seal impression ''L'' and ''T'' were entered in the malkhana register. Nothing is clearly emanating from the testimony of the prosecution witnesses that after resealing what seal impressions were exactly put on the samples. Ext. PW 6/C reveals that seal impression - ''L'' as facsimile of seal ''L'' and ''T'' were put on ''NCB Form'', whereas, testimony of HC- Mohan Lal PW-3 Ext. DA reveals that seal impression ''H'' and ''T'' were put on the samples. This different version about the seal impression creates doubt, more so, when with the same hand writing and same ink at Sr. No. 1 of ''NCB Form'' Ext. PW 6/D and Ext. PW 6/C, F.I.R. number is recorded which reveals that ''NCB Form'' was not prepared at the spot. The two independent witnesses have not supported the prosecution case. None of the prosecution witnesses have come forward to as to reveal wherefrom the weights and measures were arranged.

From the analysis of the prosecution witnesses and the materials on record, learned Sessions Judge has rightly arrived at its findings that the prosecution has not been able to prove its case beyond reasonable doubt. In our considered view the link evidence is missing. It is difficult to know which sample was sent to the chemical examiner and after receipt of the report of the chemical examination whether the report was in respect of the same sample which was recovered and seized on 16.7.2001. In our considered view serious doubt is created in the case of the prosecution. We do not find any reason to interfere with the findings arrived at by the learned Sessions Judge. The appeal, being devoid of any merit, is dismissed. The bail bonds of the accused/Respondent are discharged.