Narcotic Drugs and Psychotropic Substances Act, 1985, Section 20 - Contraband

Rajin­der Kumar v. State of HP 21.03.2011

2011(2) AICLR 642

Surinder Singh, J.

Cr. Appeal No. 400 of 2009.

For the Appel­lant :- Mr. Manoj Pathak, Advo­cate.

For the Respon­dent :- Mr. A.K. Bansal, Addl. Advo­cate Gen­eral.

Nar­cotic Drugs and Psy­chotropic Sub­stances Act, 1985, Sec­tion 20 — Con­tra­band — Con­vic­tion chal­lenged — Acquit­tal — 525.72 grams resin of cannabis plant alleged to have recov­ered from pos­ses­sion of accused — Inves­ti­gat­ing offi­cer who effected the alleged recov­ery nowhere stated as to whom he entrusted the case prop­erty — NCB forms which were allegedly pre­pared on the spot and pro­duced before Inspec­tor SHO, not deposited along with case prop­erty in Malkhana — One of the sam­ples par­cel stated to have been sent for analy­sis through wit­ness on 27 Feb — Wit­ness on exam­i­na­tion did not tes­tify it — How sam­ple reached on 28 Feb, in FSL not explained — No expla­na­tion where sam­ple was kept dur­ing inter­ven­ing night of 27th and 28th Feb­ru­ary — Court can­not read between the lines and fill up the lacuna left by the pros­e­cu­tion by draw­ing infer­ence against the accused — Con­vic­tion set aside — Fur­ther held -(a) To prove guilt of accused, it is incum­bent upon pros­e­cu­tion to prove that right from the time of recov­ery till the sam­ple reaches the lab­o­ra­tory for analy­sis, link evi­dence is com­plete. (b) When sam­ple has changed many hands before reach­ing the lab­o­ra­tory, the pros­e­cu­tion is also obliged to prove that sam­ple taken from recov­ered stuff had reached lab­o­ra­tory intact and there has been no pos­si­bil­ity of its tampering.[Paras 18 to 20]Cases Referred :State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314.JUDGMENTSurinder Singh, J. (Oral) – [/excerpt] Appel­lant herein was con­victed by the learned trial Court for the offence pun­ish­able under Sec­tion 20 of the Nar­cotic Drugs and Psy­chotropic Sub­stances Act, 1985, Read more

in short “the Act”

for allegedly keep­ing in his pos­ses­sion 525.72 grams resin of cannabis plant in the recov­ered stuff of 1.400 kg., hence sen­tenced to undergo impris­on­ment for a period of seven years and to pay a fine of ’70,000/- with default clause. Read more

Hence the present appeal. 2. In short, pros­e­cu­tion case can be stated thus. On 23.2.2007, PW7 HC Pushp Dev was head­ing a police search party to locate/trace the accused in a mur­der case FIR No. 19/1997. In this process, they reached the bifur­ca­tion road of “Tihni” falling in Police Sta­tion Ani. Around 5 p.m., they spot­ted the appel­lant, who was car­ry­ing a poly­thene bag in his hand, on see­ing the police party he tried to escape. This raised sus­pi­cion and he was over­pow­ered. His iden­tity was asked. It was a lonely place. No inde­pen­dent wit­ness could be asso­ci­ated but how­ever, an option Ext. PW1/A was given in writ­ing to the appel­lant whether he wanted to be searched before a Mag­is­trate or a Gazetted Offi­cer as it was his legal right. The appel­lant opted to be searched by the Police party and to this effect he appended his thumb-impression to such an endorse­ment. There­after police party ren­dered them­selves to be searched by the appel­lant but no incrim­i­nat­ing mate­r­ial was found. To this effect, memo Ext. PW1/B was exe­cuted. There­after police con­ducted the search of the polythene-bag to which the appel­lant was car­ry­ing in his hand and recov­ered 1.400 kg. of cha­ras. Two sam­ples of 25 grams each were sep­a­rated from the recov­ered stuff and sealed with seal impres­sion ‘A’. The remain­ing bulk was also sealed with the same seal. The spec­i­men of the seal was taken on a piece of cloth Ext. PW7/A. The NCB forms in trip­li­cate out of which one is Ext. PW2/A were pre­pared on the spot and the fac­sim­i­les of the seal so used was also taken thereon. Police also pre­pared the site plan Ext. PW7/C of the place of recov­ery. 3.

Case prop­erty was taken into pos­ses­sion vide memo Ext. PW1/C. 4. Read more

Ruka Ext. PW7/B was sent for the reg­is­tra­tion of the case which cul­mi­nated into FIR Ext. PW5/A. 5. The case prop­erty was pro­duced before PW2 Inspec­tor SHO Daya Sagar. He re-sealed the case prop­erty with seal impres­sion ‘H’ and com­pleted rel­e­vant columns of NCB forms. There­after he handed over the case prop­erty along with spec­i­men seal impres­sion and NCB forms to PW5 HC Tain Singh MHC Police Sta­tion Ani for its safe cus­tody. Its entry was made in the Malkhana Reg­is­ter Ext. PW5/C. 6. On 27.2.2007 one of the sam­ples par­cel was allegedly handed over to PW4 HHC San­tosh Kumar for its analy­sis vide RC Ext. PW5/D to deposit it in Foren­sic Sci­ence Lab­o­ra­tory, Junga which also included sam­ple of seals, FIR etc. On 28.2.2007, case prop­erty was deposited in the lab­o­ra­tory. After obtain­ing the receipt on the RC, it was deposited with the MHC. 7. On analy­sis, the sam­ple tested pos­i­tive for cha­ras. It con­tained resin 37.48% weight-in-weight and it was also hav­ing cys­t­ho­lethic hair as detected on the micro­scopic exam­i­na­tion. The report is Ext. PW6/A. Accord­ing to its, the sam­ple con­tained con­tents of cha­ras. 8. The appel­lant was arrested and grounds of arrest were informed to him. 9. The spe­cial report was sent to the Offi­cer supe­rior through PW4 HHC San­tosh Kumar within the statu­tory period. 10. After record­ing the state­ments of the wit­nesses and com­plet­ing the inves­ti­ga­tion, the case was pre­sented in the Court for the trial of the appel­lant for the offence afore­said. 11. The appel­lant was accord­ingly charge– sheeted for the offence afore­said. He abjured his guilt and claimed trial. 12. To prove its case,

pros­e­cu­tion exam­ined its wit­nesses and the appel­lant was also exam­ined under Sec­tion 313 of the Code of Crim­i­nal Pro­ce­dure. He denied the cir­cum­stances which were found atten­dant upon him. Read more

13. When called upon to enter into his defence, no evi­dence in defence was led. 14. Learned trial Court, at the end of the trial believed the pros­e­cu­tion evi­dence and con­victed and sen­tenced the appel­lant, as afore­said. 15. Shri Manoj Pathak, Advo­cate vehe­mently argued that in the instant case, report of analy­sis Ext. PW6/A could not be con­nected with the alleged recov­ery and that the link evi­dence in the instant case is not com­plete. He also argued that there has been con­tra­dic­tion in the state­ments of the offi­cial wit­nesses which ren­ders the pros­e­cu­tion case doubt­ful. 16. Con­tra Shri A.K. Bansal, learned Addi­tional Advo­cate Gen­eral sup­ported the impugned judg­ment of con­vic­tion and sen­tence and ven­ti­lated that the link evi­dence in the instant case is com­plete and the minor con­tra­dic­tions with respect to the tim­ing appear­ing in the state­ments of the pros­e­cu­tion wit­nesses are ignor­able. 17. I have given my thought­ful con­sid­er­a­tion to the rival con­tentions of the par­ties and have closely and cau­tiously exam­ined the evi­dence on record. 18.

To prove the guilt of the accused, it is incum­bent upon the pros­e­cu­tion to prove that right from the time of recov­ery till the sam­ple reaches the lab­o­ra­tory for analy­sis, link evi­dence is com­plete. When the sam­ple has changed many hands before reach­ing the lab­o­ra­tory, the pros­e­cu­tion is also obliged to prove that the sam­ple taken from the recov­ered stuff had reached the lab­o­ra­tory intact and there has been no pos­si­bil­ity of its tam­per­ing. This fact has to be proved affir­ma­tively. Read more

The reliance in this behalf can be placed to the judg­ment of the Supreme Court ren­dered in State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314. 19. In the instant case PW7 HC Pushp Dev is the Inves­ti­gat­ing Offi­cer. He effected the alleged recov­ery from the bag of accused and the sam­pling process was also com­pleted by him. Though dur­ing the trial, he iden­ti­fied one of the sam­ples par­cel and remain­ing bulk but he nowhere stated as to whom he entrusted the case prop­erty. Although PW2 Inspec­tor Dya Sagar stated that it was HC Pushp Dev who deposited with him three sam­ple parcels sealed with seal impres­sion ‘A’ along with spec­i­men seal impres­sion and NCB forms. He re-sealed the case prop­erty with seal impres­sion ‘H’ and deposited it in the Malkhana with PW5 HC Tain Singh. Per­ti­nently, he stated that one of the sam­ples par­cel was stated to have been sent through PW4 HHC San­tosh Kumar for analy­sis on 27.2.2007 vide RC Ext. PW5/D. PW4 HHC San­tosh Kumar when exam­ined in the Court did not tes­tify it.

In absence of this evi­dence it is not under­stood by which process, the case prop­erty in the instant case reached on 28.2.2007 in the Foren­sic Sci­ence Lab­o­ra­tory and where it was kept dur­ing the inter­ven­ing night of 27th and 28th Feb­ru­ary, 2007. The court can­not read between the lines and fill up the lacuna left by the pros­e­cu­tion by draw­ing infer­ence against the accused. Need­less to say that it is incum­bent upon the pros­e­cu­tion to prove the case against the accused beyond a rea­son­able doubt. Read more

In the above back­ground, on the facts put forth, the link evi­dence is miss­ing. 20. Also I find that the NCB forms which were allegedly pre­pared on the spot and pro­duced before PW2 Inspec­tor SHO Daya Sadar, were not deposited along with case prop­erty in the Malkhana, as it does find men­tioned in the abstract of the Malkhana Reg­is­ter Ext. PW5/C which, in my opin­ion, also raises doubt that the pros­e­cu­tion wit­nesses did not speak the whole truth. 21. For the fore­go­ing rea­sons, the pros­e­cu­tion has failed to prove the case against the appel­lant in accor­dance with law. There­fore the appeal is allowed and the judg­ment of con­vic­tion and sen­tence passed by the learned trial Court is set aside and the appel­lant is acquit­ted by giv­ing him the ben­e­fit of doubt. He being in Jail serv­ing out sen­tence, is ordered to be set free forth­with if not required in any other case. Reg­istry to take imme­di­ate steps in com­pli­ance. 22. The appeal stands accord­ingly dis­posed of. Send down the record.

Narcotic Drugs and Psychotropic Substances Act, 1985, Section 20 - Contraband