State of H.P. vs Lalman

Surinder Singh, J.—Respondent was acquitted for the offence punishable u/s 20 of Narcotic Drugs & Psychotropic Substances Act, 1985 (in short the ''Act''), for allegedly keeping in his possession 1 Kg 800 gms of contraband, i.e. ''charas''. State felt aggrieved by his acquittal, as such, filed the present appeal.

Respondent was unrepresented. Mrs. Bhawna Dutta, Advocate, vide our separate order, has been appointed as Legal Aid Counsel from the approved list of Advocates.

In short, prosecution story can be summed up thus. During the intervening night of 7/8-10-2000 at about 0.25 AM, a private bus bearing registration No. HP-01-1722 was stopped for checking by (PW-8) Head Constable, Chhota Ram at police barrier, Swarghat. (PW-1) Atma Ram was driver of the said bus. PW-8 along with constable Ram Pal entered the bus and carried out checking of the passengers. Respondent was found sitting on seat No. 32 with a bag which was red in colour, on his lap. On its search, it was found that there was ''charas'' in it. After weighing, the same came out to be 1 Kg 800 gms. Respondent was alighted from the bus. Two samples of 25 gms each were separated from the recovered stuff and sealed with seal producing the impression of English letter ''T'' in the present of (PW-1), driver Atma Ram and (PW-2) Surinder Verma, a shopkeeper, who had provided scales and weights for weighing the contraband.

The case property was taken into possession vide seizure memo Ex PB which was signed by Atma Ram and Surinder Verma aforesaid, copy of which was handed over to the Respondent.

A rukka Ex PE was sent for registration of the case. (PW-9) Inspector Devi Ram, SHO, P.S. Sadar, Bilaspur was informed. He reached the spot around 3 AM.

The case property, which was earlier sealed and seizure memo were handed over to Inspector Devi Ram aforesaid, who re-sealed the case property with his own seal producing the impression of English letter ''A''.

The police also prepared site plan Ex PH of the place of alleged recovery. Special report was sent to the official superior within stipulated time.

PW-9 Inspector Devi Ram deposited the case property with MHC, Police station and made its entry in the Malkhana register, one sample was sent for its examination by MHC through constable (PW-4) LHC Sukh Ram on 10.10.2000. On the same day, it was deposited at CTL, Kandaghat.

On the examination of the sample parcel, as per the report Ex PL issued by Assistant Chemical Examiner, it tested positive for ''charas'' and it contained the stuff of resin 43.0 % and on examination microscopic cystolythic hair was found present. The resin was opined to be of Indian hemp After recording the statements of witnesses and recording evidence of the prosecution, challan was presented against the Respondent for his trial under the aforesaid section.

Respondent was charge-sheeted. He pleaded not guilty and claimed trial.

To prove the prosecution case, independent witnesses, i.e. PW-1, driver of the bus, PW-2 Surinder verma and other official witnesses were examined. The Respondent was also examined u/s 313 of Code of Criminal Procedure He admitted that he was travelling in the bus at the relevant time. He also admitted that the police had checked up the bus and passengers during night as aforesaid, but denied that he was occupying seat No. 32. He also denied the recovery of bag from his possession and the ''charas recovered there from. When called upon to enter into his defence, he did not lead any evidence in defence. At the end of the trial, Respondent was acquitted on the ground that the independent witnesses turned hostile to the prosecution and the statement of the official witnesses were insufficient to sustain the conviction of the Respondent.

Sh. R.K. Sharma, learned Senior Additional Advocate General vehemently argued that the statement of the official witnesses inspire confidence, link evidence is complete, therefore, acquittal of the Respondent is wrong and illegal.

On the other hand, Mrs. Bhawna Dutta, Advocate, appearing for the Respondent, supported the impugned judgment of acquittal and further ventilated that the link evidence, in the instant case, is not complete and that the prosecution has failed to prove that NCB forms were filled up on the spot and deposited in Malkhana alongwith sample of seal either by the Investigating Officer or the Inspector/SHO, further that there is also no evidence that these items were also handed over to LHC Sukh Ram along with sample parcel which were deposited in the laboratory in order to find out that the seals which were found on the sample parcel corresponded to the seals so sent. In absence of that and also when none of the official witnesses stated that the NCB forms were prepared on the spot and sample of seals were not taken on the separate piece of cloth, the acquittal of the Respondent cannot be interfered with as the prosecution has failed to link the report of analysis with the stuff recovered.

We have given our thoughtful consideration to the rival contentions of the parties and have carefully re-examined the evidence on record.

True it is that the independent witnesses have not supported the case of the prosecution may be for obvious reasons, but the statement of official witnesses are required to be cautiously and meticulously examined. If their statements are worth inspiring confidence, it can safely be acted upon.

(PW-8) HC Chhota Ram stated that Respondent was travelling in the bus in question and the bag was in his lap which contained contraband. It was taken into possession and two samples of 25 gms each were separated and sealed with seal impression ''T''. He further stated that seal after its use was handed over to Surinder Verma, which fact was not substantiated by Surinder Verma in his statement. On the top of it, this witness (PW-8) did not say that he had taken sample of seal used on a separate piece of cloth or paper. Although he stated that during the proceedings of recovery, Inspector/SHO Devi Ram reached there and he handed over to him the case property which was sealed and this fact has also been corroborated by the Inspector, yet we did not find that any inventory was prepared by PW-8 HC Chhota Ram vide which case property and sample of seals etc. were handed over to the said inspector. Had this document been there, it would have made been available to the Respondent to facilitate him in cross examining the witness to test their veracity.

Further PW-9 Devi Ram, Inspector/ SHO though stated that he received the case property with seal impression ''T'' but he did not mention any where that he had taken sample of seal separately and it was also deposited in the Malkhana along with sample of seal. Not only this, one of these witnesses has stated having prepared the NCB form in triplicate on the spot. Pertinently, NCB forms does not bear the facsimile used at the spot and also at the time of re-sealing by Inspector (PW-9) Devi Ram. This fact has not even been substantiated by HC (PW-3) Ram Lal. Although, he stated that Inspector /SHO had made entry in the Malkhana in his own hand, but neither the Malkhana register nor its extract was placed on record and exhibited in evidence in order to show that apart from the parcel samples remaining bulk sample seals and NCB forms were deposited in the Malkhana.

LHC Sukh Ram had taken the sample parcel for analysis, but he did not make even a passing reference in his statement that the sample of seals used by the Investigating Officer on the spot and also at the time of re-sealing by the Inspector (PW-9) Devi Ram were handed over to him, to facilitate the examiner to find out that the seal of the said parcel corresponded to the seals so sent. Even the road certificate against which the sample parcel was taken for analysis, has not been proved though MHC stated that he had brought the RC register with him, but he failed to pin point what were other contents sent through the said RC to the laboratory.

In view of above, we agree with the contention raised by the learned Counsel for the Respondent that the report of analysis Ex PL could not be connected with the stuff recovered from the Respondent as alleged.

Therefore, in view of the aforesaid facts, in our considered view, the prosecution has not been able to prove its case against the Respondent beyond reasonable doubt. Therefore, the acquittal of the Respondent cannot be interfered. Hence, the appeal is dismissed being without merit.

The Respondent is discharged of his bail bonds entered by him at any time during the proceedings of this case. Send down the records.