State of H.P. vs Sarita Devi

Deepak Gupta, J.—This appeal by the State is directed against the Judgment dated 31.7.1999 delivered by the learned Special Judge, Solan in Case No. 13-S/7 of 1999 whereby she acquitted the accused of having committed an offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein referred to as the Act).

The prosecution story, in brief, is that on 13.3.1999 PW-7 Nand Lal, ASI, Police Station, Ram Shehar, alongwith PW-6 Des Raj, SHO was on patrolling duty. PW-6 received secret information that one lady by the name of Sarita was sitting in a bus. According to the information this lady was carrying charas with her. He alongwith other police officials went to stop the bus and sent a telephonic intimation to the Police Station Nalagarh to send a lady official since there was no lady constable available at Ram Shehar. The bus was stopped at a place known as Swarg Dwari. According to PW-6 accused Sarita Devi was sitting on a bench having three seats. There were two men sitting with her. All the other passengers in the bus were made to get down and the two persons as well as the accused were asked to remain seated in the bus. In the meantime, PW-5 Dy. S.P. Bindu Rani reached the spot, who then directed the three persons to get down from the bus. An option was given to the accused whether she wanted to be searched before the police officials or not. She agreed to be searched by the police officials. Thereafter, the witnesses as well as the police officials gave their personal search and the accused was searched. She was found carrying a polythene bag in which there was charas. On weighment this charas was found to weigh 250 grams. Two samples of 10 grams each were drawn from the bulk charas. Thereafter the bulk charas and the two samples were sealed in three separate packets with seal "A". Rukka Ext.PW-4/A was sent to the Police Station and special report Ext.PW-5/B was sent to the Superintendent of Police. Other codal formalities were completed at the spot and the accused was arrested after informing her about the grounds of arrest. Thereafter one of the samples was sent for chemical examination to CTL Kandaghat and on analysis it was found to be charas. On the basis of the material collected a challan was filed in the Court and the accused was charged with having committed the aforesaid offence. The learned trial Court acquitted the accused. Hence the present appeal.

The learned trial Court has acquitted the accused on various grounds including the non-compliance of Section 42 and Section 50 of the Act. In our view these two section would not come into play in the present case since though it is a case of prior information, the recovery was made from a public carrier bus, which is a public place and therefore, Section 43 and not Section 42 would be applicable. As far as the application of Section 50 is concerned, even as per the prosecution the recovery was not made as a result of the personal search of the accused but from the polythene bag being carried by the accused in her hand. Therefore, in view of the law laid down in State of Himachal Pradesh v. Pawan Kumar Latest HLJ 2004 (2) (SC) 1247 provisions of Section 50 would not be applicable.

Having held so, we now come to the third aspect of the matter i.e. link evidence. The search was carried out under the supervision of PW-5 Dy. S.P. Bindu Rani. She only stated that the samples were sealed and the same was handed over to Daulat Ram. She does not state what was the seal actually affixed. In our opinion, the person who appears in the witness box to prove the recovery must give description of the same.

The other person present at the time was PW-6 Des Raj. He also does not state what was the seal which was affixed on the samples. In fact PW-1 the independent witness had not stated in his cross-examination what was the description of the seal affixed on the third parcel. It was only in response to a Court question he stated that the seal impression appeared to be like the English letter "A" and the Court on examination found that the seal on the sample bore the seal impression "A".

PW-5 under whose supervision the search was carried out is totally silent as to what was done with the samples. She only stated that the seal was handed over to Daulat Ram but does not make a mention about the bulk charas and the sample of the charas. PW-6 stated that after sending the report to the Sessions Judge he handed over the investigation to ASI Nand Lal and the case property was deposited with the MHC on 13.3.1999. PW-4 Ram Singh is the MHC. According to him the case property was deposited with him on 13.3.1999 and one sample was sent through constable Bhag Singh to CTL Kandaghat. PW-3 Bhag Singh stated that he took one packet which was handed over to him by Ram Singh for delivering the same to CTL Kandaghat.

On close examination of the aforesaid statements of the witnesses, it is clear that none of the witnesses who were present at the time of seizure has stated that any seal impression was obtained either on a piece of cloth or on the NCB form. We ourselves have gone through the NCB form Ext.PW-7/B. Against column No. 7(a), description of seal, the words "seal A" are no doubt written but there is no facsimile or seal impression on the form. Not a word has been stated by any witness that seal impression was taken on a separate piece of cloth and that piece of cloth was handed over to the MHC or that the MHC handed over such seal impression to Bhag Singh. Bhag Singh also only talks about having taken one packet to the CTL. He does not state that he took any seal impression with him. Therefore, the link evidence in the case is missing. It cannot be said with certainty that the NCB form Ext.PW-7/B relates to the sample which was sealed. This Court in Vineh Kumar v. State of H.P. Latest 2008 HLJ 1443 (HP) on similar grounds gave benefit to the accused. In the present case also there is nothing to show that the seal impression was sent to the chemical laboratory. Therefore, the chemical laboratory could not have compared the seal on the sample with any other seals. The prosecution has not even produced the Malkhana register which may have indicated whether any other items other than the sample was deposited in the Malkhana. Even the road certificate has not been produced. Therefore, the prosecution has miserably failed to link the sample in question with the report.

In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged.