R.B. Misra, J.@mdashIn view of our order dated 07.07.2010, this Court ordered for the issuance of non bailable warrants against the accusedrespondent for ensuring his presence. However, keeping in view the prevailing law and order situation and unusual circumstances in Jammu and Kashmir, the service could not be effected upon the accusedrespondent.
2. At the request of the learned Additional Advocate General, for the appellantState, the matter is being dealt with on merits and Ms. Nishi Goel, Advocate, is appointed as Legal Aid Counsel for the accusedrespondent to assist this Court on his behalf.
3. The brief of the case has been given to Ms. Nishi Goel, Advocate. Heard Mr. Rajinder Dogra, Additional Advocate General, for the appellantState and Ms. Nishi Goel, Advocate, for the accusedrespondent.
4. 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 and order dated 24.03.1995, passed by the learned Sessions Judge, Shimla, District Shimla, in Sessions Trial No. 32S/7 of 1994, acquitting the alleged accused u/s 20 of the Narcotic Drugs and Psychotropic Substances Act in reference to FIR No. 75 of 1994.
5. Prosecution case in brief is that on 18.03.1994, Head Constable Bhumi Singh alongwith Yogesh and Bikram Singh, Constables, while on patrol duty in Lower Bazar, Shimla, at about 9 a.m. noticed accusedrespondent coming from bus stand towards Ram Bazar. On seeing the police party, accusedrespondent tried to escape, however, he was overpowered and on search of his ''Thela'' (bag), which he was carrying on his shoulder, charas was recovered. Accusedrespondent was told that whether he wants to be searched before a Gazetted Officer or Magistrate or by the same police party. On search of his bag, 2 kg 300 grams of charas was recovered and samples were taken and both charas and samples were sealed with seal impression ''B'' and FIR was lodged. Before the search of the accusedrespondent, Additional S.P. arrived at the spot and participated in the proceedings. Later on, samples were sent for chemical examination and after completion of the investigation, accusedrespondent was charged for the offence u/s 20 of the NDPS Act.
6. In order to prove its case, prosecution examined as many as ten witnesses, whereas, accused through his statement u/s 313 Cr.P.C. denied the prosecution case.
7. While making search and apprehending the accused respondent, two independent witnesses, namely, Pawan Kumar (PW1) and Purshotam Dass Sood were associated, but out of these two, only Pawan Kumar was examined and Purshotam Dass Sood was given up allegedly having been wonover by the accused respondent. Pawan Kumar (PW1), an eyewitness, has put his signatures on the recovery memo by saying that the accused respondent had put his thumb impression. The accused before search was given grounds of arrest vide memo, Ex. PW1/C. Charas and samples were taken into possession vide recovery memo, Ex. PW1/B. PW1 has also stated that from where the accused was apprehended, the police station is about 100 meters from there. 1520 persons were at that time near the place of incident.
8. PW2 R.M. Sharma, Additional S.P., in support of the prosecution case has stated that on recovery of charas, Ex. P2, from the bag, Ex. P1, two samples, weighing 50 grams each, were taken and the charas and samples were sealed with seal ''B''. Seal after use was handed over to witness Pawan Kumar. Charas was taken into possession vide memo, Ex. PW1/B. The specimen impressions of the seal were taken on a piece of cloth, Ex. PW2/A. According to PW2, the bag was lying on the floor where police and the accused were present. PW2 has stated that the consent memo had already been prepared by the Head Constable before his arrival.
9. PW3 Himat Kumar carried the information to Additional S.P. On 18.03.1994. On the same day, at about 4 p.m., information about the arrest of the accused and seizure of case property was received from the police station in the office of Additional S.P.
10. PW4 Bhup Ram, Head Constable, recorded the FIR, Ex. PW4/B. PW5 Rup Lal proved on record copy of rapat rojnamcha No. 64 dated 18.03.1994, Ex. PW5/A. PW6 Sita Ram, Constable, carried the sample to Chemical Examiner, Kandaghat.
11. PW7 Yogesh Kumar deposed that he alongwith Bikram Singh and Bhumi singh, Head Constable, was on patrol duty in Ram bazar. They suspected the accused and apprehended him. He was having a jute bag with him. Search of that bag was made and contraband was recovered. As per the testimony of PW7, there were 20 to 25 persons at the spot.
12. PW8 Bikram Singh deposed that he carried the ruka, Ex. PW4/A, to the police station.
13. PW9 Inspector Kuldeep Sharma, stated that samples were sealed with seal ''B''. accused was put in police lockup and the case property was retained by him in the Malkhana. On the next day, he handed over one sample to Constable Sita Ram to be carried to Kandaghat for chemical analysis. When he retained the case property in the Malkhana but he had not affixed his seal on the case property. When the sample was handed over to constable Sita Ram, to be carried to Chemical Examiner, Kandaghat, he did not affix his seal. Alongwith the sample he did not sent C.F.S.L. form to Chemical Examiner, Kandaghat. PW9 had admitted that other case properties were also lying in the Malkhana apart from the case property of this case.
14. PW10 Bhumi Singh, Head Constable, while deposing in favour of the prosecution has stated that he alongwith Bikram gave their personal search to the independent witnesses vide memo, Ex. PW1/D. Thereafter, the recovery was made and two samples, 50 grams each, were taken out and sealed with seal ''B'' and charas was taken into possession vide memo, Ex. PW1/B. He identified the bag, Ex. P1, and charas Ex. P2. Specimen impression of the seal was also taken on a piece of cloth, which is, Ex. PW2/A. The grounds of arrest were given to the accused vide memo, Ex. PW10/A. Spot map, Ex. PW10/B, was prepared by PW10. After completion of the investigation and on receipt of the report of Chemical Examiner, Ex. PX, challan was prepared by the SHO. As per the testimony of PW10, he did not fill up C.F.S.L. form at the time of taking the sample. PW10 has denied that when the accused was apprehended a lot of people were coming upwards and going downwards. PW10 has also denied that charas was lying in the Malkhana and he has planted a case against the accused.
15. As per PW1 Pawan Kumar, independent witness, the recovery was made from a ''Thela'' (bag) carried by the accused, whereas, other independent witness, i.e., Purshotram Dass Sood, referred by the prosecution was not examined. The consent of the accused vide memo, Ex. PW1/A, was also prepared by the Investigating Officer and the same was prepared before arrival of Additional S.P. It is not known as to why Bhumi Singh did not produce the accused before a Magistrate and waited for the arrival of the Additional S.P. As per the testimony of PW10, at the time of recovery of charas 1520 persons were present on the spot. However, reasons are not known, as to why other persons present on the spot were not associated and only Pawan Kumar and Purshotram Dass Sood were picked out of them. Pawan Kumar also did not fully support the prosecution case and Purshotam Dass Sood was given up for the reasons best known to the prosecution. Prosecution has also not indicated anywhere about the report u/s 57 of the Act was sent to the higher officer, as envisaged by this section. This special report is not addressed to anyone. It appears that the entire documents were prepared by the Investigating Officer later on in order to cover up the lacunae.
16. The case property was retained by the SHO in the Malkhana and he has not put his seal when the case property was retained by him. PW10 and the SHO have admitted there are other case properties lying in the Malkahana apart from this case property in question. As such, it cannot be presumed that sample, which was taken from the charas recovered from Nazir Ahmad, accusedrespondent, was the same sample which was sent for chemical analysis. No C.F.S.L. form was filled in by the Investigating Officer at the spot when the sample was drawn in order to ensure that the sample was the same which was recovered from the accused.
17. From the perusal of the report of the Chemical Examiner, it appears that he has not mentioned or written in Ex. PX that the seals were found intact. The Chemical Examiner in casual and routine manner has put his seal and he has not given any detail what type of these seals were, whether these seals tallied with the seal sample and specimen seal. The SHO, when he sent the sealed parcel for chemical examination, he simply referred that the specimen of seal attached herewith. He has also not mentioned what type of specimen seal was sent to Chemical Examiner with the sealed parcel. It is not understandable as to how in report, Ex. PX, the Chemical Examiner has certified that the seal impressions were identical to the seal specimen enclosed. We also notice that jute bag, which was allegedly carried by the accused has neither been produced in the Court nor the same was shown to the witnesses.
18. In these circumstances, a doubt has been created in the prosecution case. Keeping in view the totality of the facts and circumstances, material on record and the prosecution witnesses, learned Sessions Judge has rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt and we also find no scope of interference in the judgment of the trial court as such appeal being devoid of merit is dismissed.
