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2010 Supreme(HP) 632
HIMACHAL PRADESH HIGH COURT
HON’BLE MR. JUSTICE DEEPAK GUPTA & HON’BLE MR. JUSTICE SANJAY KAROL, JJ.
STATE OF HIMACHAL PRADESH
Appellant
VERSUS
BALAK RAM
Respondent
Criminal Appeal No. 417 of 1996
Decided on 01-04-2010.
For the Appellant:Mr. Vivek Thakur, Additional Advocate General for the
appellant.
For the Respondent:Mr. Vinay Thakur, Advocate, for the Respondent.
The importance of complying with mandatory provisions of the Act and establishing a clear link between the recovery and the report of the sample.
Headnote:
Narcotic Drugs - Non-compliance of mandatory provisions of Sections 42 and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 42, 50
Fact of the Case:
The accused was acquitted of an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 due to non-compliance of mandatory provisions of Sections 42 and 50 of the Act. The prosecution failed to link the report of the chemical examiner to the Charas allegedly recovered from the accused.
Finding of the Court:
The court found that there was a glaring lacuna in the case as the link evidence connecting the recovery to the report of the sample was missing. The court dismissed the appeal on different grounds and ordered the discharge of the accused's bail bonds.
Issues: Non-compliance of mandatory provisions of Sections 42 and 50 of the Act, lack of link evidence connecting the recovery to the report of the sample.
Ratio Decidendi: The court emphasized the importance of complying with the mandatory provisions of the Act and the necessity of establishing a clear link between the recovery and the report of the sample. The court also highlighted the need for scrutiny and caution when independent witnesses turn hostile.
Final Decision: The appeal was dismissed on different grounds, and the accused's bail bonds were ordered to be discharged. The court also made adverse observations about the conduct of a witness and deemed it fit to issue a notice for initiating action against the witness.
Deepak Gupta, J.(Oral)-This appeal by the State is directed against the judgment dated 17.9.1995 delivered by the learned Sessions Judge, Shimla in Sessions Trial No. 14-S/7 of 1995 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).
2. The prosecution case in brief is that on 2.12.1994 ASI – Ram Singh (PW-4) who was thenposted in the C.I.A. branch had gone to apprehend some persons who were allegedly indulging in illicit felling of trees. This witness was accompanied by HC – Kamal Dev, Constable Jagdev (PW-7) and Constable Yashpal. According to the police at about 3.00 p.m. when they were on the junction of Fagu -Cheog road one person was found coming from Cheog side. On seeing the police he tried to run away. This aroused the suspicion of the police party who apprehended him on the spot. They suspected that he may be carrying some contraband substance and therefore gave him an option of being searched. The person disclosed his name to be Balak Ram (accused) and consented to be searched by the police officials itself vide memo Ext. PW 1/A. According to the police the accused was carrying a bag on his shoulder and from this bag 1 k.g. and 900 grams of Charas was recovered. Out of this Charas two samples of 25 grams each were drawn and thereafter the bulk Charas and the two samples were packed in three separate parcels and sealed with seal-‘T’. The Charas was taken into possession vide memo Ext. PW 1/C. Rukka Ext. PW 3/A as well as the case property was sent to Police Station, Theog through Constable Jagdev (PW-7). The case property was kept in the Maalkhana at Theog and thereafter sent to C.T.L. Kandaghat through Constable Rajinder Singh (PW-2). Vide report Ext. PX of the chemical examiner the sample was found to be that of Charas. On this basis challan was filed against the accused. The learned trial Court acquitted the accused mainly on the ground that there had been non compliance of the mandatory provisions of Sections 42 and 50 of the Act. Some passing observations have also been made that the statements of the police officials do not inspire confidence but in fact the learned Trial Court has not really gone into the merits of the case.
Section 42 of the Act is not at all applicable in the present case. Firstly it is not a case of prior information and secondly the recovery was made from a public place. Section 50 of the Act is also not applicable since the recovery was made from a bag and not from the person of the accused.
3. Coming to the merits of the case we find that the only independent witness examined by the prosecution Sh. Ramesh Sharma (PW-1) has turned hostile. The law on the point is very clear. Even if the independent witnesses turn hostile the statements of police witnesses are as good as any other witness. However, they should be scrutinized with greater care and caution.
4. There is a glaring lacuna in the present case. The link evidence connecting the recovery to the report of the sample is totally missing. Therefore, for the sake of arguments, we are assuming that the recovery was made as alleged by the police. According to the police officials the bulk parcel and the sample parcels were sealed with seal-T and taken by PW-7 to the police station at Theog and deposited there. Constable Jagdev Singh (PW-7) states that PW-4 had directed him to take the Rukka alongwith the case property to the police station at Theog. He took the same to Theog and deposited the same with the MHC, Police Station, Theog. He however does not state that during the period the case property remained in his custody it was not tampered with.
5. MHC – Ved Parkash (PW-3) was the incharge of the Maalkhana at Police Station, Theog. According to him he received a Rukka Ext. PW 3/A on the basis of which he recorded F.I.R. Ext. PW 3/B. He states that the case property duly sealed was deposi
