High Court of Himachal Pradesh Shimla Cr · 2008

The Hon(cid:146)ble Mr. Justice Deepak Gupta, Judge, The Hon(cid:146)ble Mr. Justice V.K.Ahuja, Judge. Whether approved for reporting? For the Appellant : Mr. R.M.Bisht, Deputy Advocate General. For the Respondent(s) ________________________________________________________________ Deepak Gupta, J (Oral). : None This petition for leave to appeal is directed against the judgment of the Additional Sessions Judge, Kullu in Cr.Appeal No. 6 of 2008 decided on 19.6.2008, where by he has accepted the appeal of the respondent and set aside the judgment of the learned Judicial Magistrate Ist Class, Manali dated 9.1.2008 convicting the accused of having committed an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). 2 The brief facts of the case according to the prosecution are that at about 3.30 am, on 22.11.2006, a police party headed by ASI Ram Saran was present at the link road leading from National Highway-21 to village Bran.

The accused allegedly came towards the National Highway-21 from village Bran side and on seeing the police, he got scared. This aroused the suspicion of the police officials and he was questioned. Since the accused was apprehended in the early hours of the morning, no independent witness could be associated. Therefore, the search of the accused was done by associating the police officials. On search 35 grams of Charas was allegedly recovered. Out of this Charas, two samples of 10 grams each were taken and sealed with seal impression (cid:147)T(cid:148). NCB forms were also filled-in at the spot. Thereafter the sample was sent to CFL, Chandigarh and was reported to be Charas. Thereafter the accused was challaned for commission of the offence under Section 20 of the NDPS Act before the learned Judicial Magistrate Ist Class, Manali. After recording the evidence, the learned Judicial Magistrate convicted the accused and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs.

3000/-. In default of 3 payment of fine, he was to undergo further imprisonment of one month. An appeal respondent/accused before the learned Appellate Court. The learned Additional Sessions Judge, acquitted the accused mainly on the ground that the link evidence in the case is totally missing. The sealed separate parcel of charas containing the remaining charas was never produced before the Court. Once there was no order for disposal of the case property, it should have been produced before the Court. According the prosecution evidence, samples of seal impression (cid:147)T(cid:148) was fixed on each parcel. The SHO Sanjay Sharma (PW7) has deposed that when the investigating officer deposited the parcel with him, he re-sealed the same by affixing three seal impressions of (cid:147)A(cid:148) on each parcel. Thus, there should have been four seal impressions of (cid:147)T(cid:148) and three seal impressions of (cid:147)A(cid:148) on each parcel, i.e. a total of seven seals.

In this case, the accused had moved an application before the learned trial Court for sending the second sample for analysis. Two parcels were produced before 4 the learned trial Court. Surprisingly, the parcels produced before the trial Court were having eight seals. As already demonstrated above, the total number of seals on each parcel should have been seven. This clearly indicates that the sample produced in court was not the same sample which was taken on the spot. In view of the above discussion, we find no error in the judgment passed by the learned Additional Judge in acquitting the respondent/accused and the same calls for no interference. Hence, the petition for leave to appeal is rejected. ( Deepak Gupta ), J September 25, 2008. ( V.K. Ahuja ), J. s.