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TARLOK SINGH CHAUHAN, J. –

Aggrieved by the judgment dated 02.07.2018 passed by the learned Special Judge, Chamba Division, Chamba, H.P. thereby acquitting the respondent, for the commission of an offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short the ‘Act’), the State has filed the instant appeal.

2. The case of the prosecution as set out in the charge-sheet and thereafter consistently deposed by the official witnesses H.C. Arun Kumar (PW-1), Constable Vikas Dhawan (PW-2), Constable Sandeep Kumar (PW-3) and ASI Dev Raj (PW-13) is that the police party led by ASI Dev Raj (PW-13) consisting of H.C. Arun Kumar (PW-1), Constable Sandeep Kumar (PW-3) and Constable Surinder Singh was going towards Banikhet on 28.11.2016 on patrol in vehicle No. HP-73-0918 which was being driven by Constable Vikas Dhawan (PW-2).

3. At about 6.30 p.m., the aforesaid police party had stopped near a bridge about 500 metres away from the petrol pump, Banikhet. When the police party was checking the vehicles, respondent was noticed coming towards the bridge from the side of Banikhet carrying a blue coloured polythene bag (Ex. P2) in his right hand. On seeing the police party, the respondent got perplexed and started running backwards but was nabbed by ASI Dev Raj with the help of accompanying staff and was brought near the vehicle.

4. On inquiry, the respondent divulged his antecedents. The carry bag which was in possession of the respondent was checked and it was found containing in it a sky blue coloured carry bag (Ex.P3) containing charas (Ex. P4) in it. In the meantime, vehicle bearing registration No. HP-46A-7777 came from the side of Pathankot being driven by Parth Sharma (PW-4), who was associated in the investigation along with HC Arun Kumar. In their presence, ASI weighed the charas along with the sky blue coloured carry bag which was found to be 1.562 kg. When the charas was weighed separately, it was found to be 1.540 kg. The recovered charas was put back in the same manner and then packed in a cloth parcel (Ext. P1) which was sealed with eight seals of impression ‘DJ’.

5. Thereafter, ASI Dev Raj filled in NCB form (Ext. PW-13/A) in triplicate and also retained specimen of seal impressions on a piece of cloth Ext. PW-1/A. Seal impressions were put on the NCB forms and thereafter the seal was handed over to witness Parth Sharma. The parcel containing charas was taken into possession through seizure memo Ext. PW-1/B which was signed by H.C Arun Kumar and Parth Sharma.

6. The proceedings were also photographed by Constable Vikas Dhawan, who got developed photographs Exts. P5 to P9. Rukka Ext. PW-3/A was prepared by ASI Dev Raj and it was handed over to Constable Sandeep Kumar, who took the same to Police Station, Dalhousie, on the basis of which FIR Ext. PW-12/A was registered by SI/SHO Sunny Guleria. A carbon copy of rukka Ext. PW-10/A was also sent to Sub Divisional Police Officer, Dalhousie, for information through the same constable. ASI Dev Raj prepared the site plan Ext. PW-13/B and also recorded the statements of the witnesses as per their versions. The respondent was arrested vide memo Ext. PW-1/C.

7. The case property was produced before SI/SHO Sunny Guleria, who after verifying the same, resealed the parcel with four seals of impression ‘X’ vide memo Ext. PW-5/A. He filled in relevant columns of the NCB-I form in triplicate and also put seal impressions on them and thereafter deposited the case property with MHC Bhagwan Chand (PW-6), who made an entry in this behalf in ‘malkhana’ register at Serial No.143.

8. On 29.11.2016, the sealed parcel containing charas was handed over to ASI Dev Raj for certifying the inventory and for obtaining a certificate from the court of learned Judicial Magistrate 1st Class, Dalhousie in this regard. Certificate of correctness of inventory Ext. PW-13/E and copy of order passed by the Court Ext. PW-13/D were obtained and thereafter the parcel was deposited with the MHC and entry in this regard was made in the ‘malkhana’ register, the extract of which is Ext. PW-6/A.

9. The Investigating Officer also sent special report Ext. PW-10/B to the Sub Divisional Police Officer, Dalhousie, through Constable Rajinder Kumar (PW-9).

10. On 30.11.2016, MHC Bhagwan Chand (PW-6) sent the bulk parcel containing charas along with NCB form in triplicate, sample seal and docket vide R.C. No.117/16, copy of which is Ext. PW-6/B to State Forensic Science Laboratory (SFSL), Junga through Kuldeep Chand (PW-7) for analysis, who after depositing the same had handed over the receipt to the MHC.

11. On 22.12.2016, the case property and SFSL report Ext. PX were brought back by Constable Naresh Kumar (PW-8) and deposited with the MHC. The Chemical Examiner found that the exhibit was extract of cannabis and sample of charas.

12. The charge-sheet further reveals that during investigation on 06.01.2017, the case property was produced before the learned Judicial Magistrate 1st Class, Dalhousie, where two samples of 25 grams each were separated from the bulk which were handed over to ASI Dev Raj, who in turn deposited the same with the MHC along with the copy of order Ext.PW-13/E passed by the Court and the photographs Ext.P10 to Ext. P12.

13. The MHC sent the bulk as well as sample parcels to the District ‘malkhana’, Chamba on 19.11.2017 vide R.C. No. 137/2017 through Constable Sandeep Kumar.

14. During investigation, the Investigating Officer also obtained the copies of the G.D. entries, the extract of ‘malkhana’ register and copies of R.Cs. After completion of the investigation, a charge sheet was prepared against the respondent and filed in the Court.

15. On finding a prime facie case, the respondent was charged and put to trial for offence punishable under Section 2)(b) (ii) (C) of the Act.

16. In order to prove its case, the prosecution examined 13 witnesses in all including H.C. Arun Kumar (PW-1), Constable Vikas Dhawan (PW-2), Constable Sandeep Kumar (PW-3) and ASI Dev Raj (PW-13), all members of the police party. They supported the prosecution case. The prosecution also examined Parth Sharma (PW-4), an independent witness, besides link evidence in the shape of statement of Constable Anil Kumar (PW-5), a witness to reseal memo Ext. PW-5/A, MHC Bhagwan Dass (PW-6), who had dealt with the case property when it was deposited with him by SI/SHO Sunny Guleria. PW-7 is Constable Kuldeep Chand, who took the case property to SFSL, Junga, PW-8 is Constable Naresh Kumar, who after analysis brought back the case property and report from the SFSL, Junga, PW-9 is Constable Rajinder Kumar, who took and delivered the special report to Sub Divisional Police Officer, Dalhousie. PW-10 is Constable Daleep Kumar, Assistant Reader, who had made entries in the receipt register regarding receipt of copy of rukka and special report, PW-11 is H.C. Hem Raj, who while officiating as MHC had handed over the case property for conducting proceedings under Section 52A of the Act to ASI Dev Raj which the latter had again deposited with him on the same day along with two samples of 25 grams each regarding which he had made an entry in the ‘malkhana’ register, PW-12 is Sunny Guleria, the then Station House Officer, Police Station, Dalhousie, who on the basis of the rukka recorded FIR Ext. PW-12/A and had also resealed the parcel containing charas with four seals of impression ‘X’ and PW-13 is ASI Dev Raj, the Investigating Officer in this case.

17. After closure of the prosecution evidence, the incriminating evidence on record was put to the respondent and his statement was recorded as per the provisions of Section 313 Cr.P.C. He raised a plea of false implication in this case. The respondent examined DW-1 doctor Sahil Arora, Sub Divisional Police Officer, Dalhousie, in his defence.

18. The learned Special Judge after recording evidence and evaluating the same acquitted the respondent constraining the State to file the instant appeal.

19. It is vehemently argued by Shri I.N.Mehta, learned Senior Additional Advocate General that the findings recorded by the learned Special Judge are perverse and, therefore, need to be set aside.

20. On the other hand, Shri N.K. Thakur, Senior Advocate assisted by Shri Divya Raj Singh and Shri Karan Veer Singh, Advocates, would argue that the judgment passed by the learned Special Judge is in tune with the facts which are so glaring that let alone the Special Judge, any other judge, who would have been in his place, would have no option, but to acquit the respondent.

21. We have heard the learned counsel for the parties and have gone through the records of the case.

22. As observed above, the categorical accusation and thereafter depositions of the official witnesses is that the charas as recovered was from sky blue coloured bag that was put in the blue coloured polythene bag and it is thereafter that the polythene bag was put in a cloth parcel and sealed. However, such evidence is firstly belied by the photographs on the record because photograph Ext. P-6 shows that the alleged contraband contained in the sky blue coloured bag is being weighed on an electronic weighing machine and by the side of which a blue coloured polythene bag can been seen lying. In the photograph Ext. P-7, the respondent is seen in the process of signing a document and one of the police officials can be seen holding a white coloured parcel in which a sky blue coloured carry bag can partially be seen. In photograph Ext. P-9, the white cloth parcel can be seen being sealed by the police officials and on one side a blue coloured polythene bag can be seen lying there just in front of the respondent.

23. Now, it is not the case of the prosecution either in its charge-sheet or in the evidence led on record that this blue coloured polythene bag shown in photographs Ext. P-6 and P-9 is not the same polythene bag in which sky blue coloured bag containing charas was found and there was some other polythene bag. In such circumstances, the learned Special Judge has rightly concluded that in absence of such evidence, the Court has no option but to conclude that the polythene bag containing the sky blue coloured bag having charas in it had not been parceled and sealed in parcel Ext. P-1 on the spot. This would further be evidently clear from the report of the Chemical Examiner Ext. PX which refers to the charas being found in a blue coloured carry bag inside a polythene pack as having been taken out on opening of the outer parcel Ext.P-1 in SFSL, Junga. There is no explanation as to how the polythene bag came to be there in the parcel Ext. P-1, more particularly, when this was not so found at the time when the contraband was produced before the learned Judicial Magistrate under Section 52A (2)of the Act.

24. It needs to be noticed that in the application filed by PW-13 ASI Dev Raj under Section 52 A(2), the Magistrate while issuing a certificate under Section 52A (3)) of the Act had passed the following order:

“In the Court of Anish Kumar, Judicial Magistrate 1st Class, Dalhousie, District Chamba (H.P.).

State

Vs

Ashok Kumar, S/o Sh. Kartar Singh, R/o Village Padhar, P.O. Radi, Sub Tehsil Dharwala, P.S. Bharmour, Distt. Chamba (H.P.).

….Accused Person.      

FIR No. 85/16, Dt. 28.11.2016,

u/s 20 of NDPS Act, P.S.

Dalhousie, Distt. Chamba, H.P.

29.11.2016.

Present : Sh. Soham Kaushal, Ld. APP for the State.

Accused Ashok Kumar produced in custody of C. Dharminder Kumar No. 487, HHG Kishori Lal No. 8/4-54 and under overall supervision of ASI Dev Raj of P.S. Dalhousie, who has also brought the police file.

Ms. Vijay Kumari, Ld. Remand Counsel for the accused person.

ASI Dev Raj moved an application u/s 52A(2) of NDPS Act for procuring certificate regarding correctness of inventory of the seized cannabis. A white coloured cloth parcel sealed with eight seals of impression “DJ” and four seals of impression “X” stated to be containing a blue coloured carry bag having 1 kg 540 gm cannabis is produced. The seals are found intact. The present application filed by ASI Dev Raj is allowed and aforesaid parcel is directed to be opened in my presence. On opening the parcel, a blue coloured carry bag having cannabis in the same is found. The cannabis is weighed in my presence on an electronic balance brought by the police and the same is found to be 1 kg 540 gm. I am satisfied with the correctness of inventory of seized cannabis prepared in the case in hand. The cannabis is again resealed as it is in the abovesaid cloth parcel with three seals of this Court. The seal impressions of Court seal are taken on three cloth pieces. A certified copy of this order, certificate under Section 52A(3) of NDPS Act showing correctness of inventory prepared by the police, cloth pieces bearing seal impressions of Court seal and police file are handed over to ASI Dev Raj.

Announced.

sd/-

(Anish Kumar)

29.11.2016.                                                                               JMIC, Dalhousie.”

25. A perusal of the aforesaid order would go to show that there is only one blue coloured carry bag and no polythene bag of blue colour. Even, as per the application moved by PW-13 under Section 52A(2) of the Act, a white coloured cloth parcel sealed with eight seals of impression ‘DJ’ and four seals of impression ‘X’ stated to be containing a blue coloured carry bag having 1kg 540 gm cannabis and on opening of the parcel, even, the Magistrate has recorded that it was the blue coloured carry bag that was containing 1kg and 540 gm cannabis in it.

26. If that be so, obviously, the entire story of the prosecution regarding there were two bags, one sky blue and the other being a polythene bag of blue colour is clearly belied from the records. Meaning thereby, what the Chemical Examiner analyzed was not the case property of this case and what was produced before the Magistrate was not the alleged contraband recovered from the conscious possession of the respondent or else there ought to be two bags i.e. one sky blue colour bag and another blue coloured polythene bag, as is otherwise the story of the prosecution.

27. What further strengthens our view is that when a copy of NCB form (Ext. DX-1), which was placed on record by the respondent, is perused, it contains the signatures of SI/SHO Sunny Guleria (PW-12) as has otherwise been admitted by him. This NCB form does not pertain to this case but pertains to case FIR No.93 of 2016 dated 25.12.2016. A perusal of the document would reveal that even in the aforesaid case, the case property had been resealed by SI/SHO Sunny Guleria with a seal of seal impressions ‘DJ’ as impressions of such seal are there on it.

28. It is the admitted case of the prosecution and it has so been specifically stated by the official witnesses that the case property in the instant case was seized and sealed on 28.11.2016 with seal impressions ‘DJ’. The Investigating Officer (PW-13) has specifically stated in his evidence that the seal ‘DJ’ after use was handed over by him to witness Parth Sharma, the so-called independent witness, who has not supported the case of the prosecution and was declared hostile.

29. As regards independent witness Parth Sharma, he neither produced the seal ‘DJ’ in the Court when he was examined on 20.11.2017 nor there is any evidence to the effect that at any point of time prior to 25.12.2016, this witness had redeposited the seal ‘DJ’ with the police at Police Station, Dalhousie. There is also no evidence on record to show that more than one seal of seal impression ‘DJ’ was available at the police station.

30. Now, in case the impression of seal ‘DJ’ impressed on the copy of NCB form in FIR No. 93 of 2016 Ext. DX-1 is compared with NCB form Ext. PW-13/A in this case, it would go to indicate that these are not only similar but the seal is one.

31. If that be so, it remains a mystery how SI/SHO Sunny Guleria could have resealed the case property with seal ‘DJ’ in case FIR No. 93 of 2016 dated 25.12.2016 when admittedly as per the prosecution case seal ‘DJ’ was not in possession of police but was stated to have been handed over to independent witness PW-4 Parth Sharma.

32. In such circumstances, the learned Special Judge has rightly concluded that seal impression ‘DJ’ never changed hands and it had not been handed over to witness Parth Sharma after its use.

33. Once that be so, the entire case of the prosecution becomes suspect and obviously the respondent has to be given the benefit of doubt as has been given by the learned Special Judge. The view taken by the learned Special Judge is a probable and possible view which calls for no interference.

34. In view of the aforesaid discussion and for the reasons stated above, we find no merit in this appeal and the same is accordingly dismissed.

35. Records be sent back forthwith.

Appeal dismissed.

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