State Of Uttarakhand vs Kishan Singh Joshi

Alok Kumar Verma, J

Present Government Appeal is directed against the judgment dated 20.05.2004, passed by learned Sessions Judge, Pithoragarh in Sessions Trial No.5 of 2000 titled “State vs. Kishan Singh Joshi”, whereby, learned Trial Court has acquitted the respondent-accused of the charge of Section 18 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “Act, 1985”).

Briefly stated the prosecution story as it emerges from re-appreciation of the evidence on record is that on 02.02.2000, Sub-Inspector, Bhuvnesh Dutt Sharma, In-Charge Special Operation Group, Pithoragarh (PW1), Head Constable Ashok Kumar (PW2) along with other police personnel were present on patrolling duty. When they reached the bridge, they saw the accused carrying a bag coming from the front. Seeing the police, he started going back. On suspicion, he was apprehended. On enquiry, he told his name and address. There was a smell of Charas in the said bag. Accused was informed that they wanted to search him and he was asked whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. He gave his consent for being searched before the Sub-Divisional Magistrate. Thereafter, he was produced before the Sub-Divisional Magistrate. A search was conducted before Subhash Chandra Uttam, Sub-Divisional Magistrate, Sadar (PW3). About one kilogram of Charas wrapped in a newspaper was recovered from the bag of the accused. Out of the recovered Charas, about 50 grams of Charas was taken out for sample and it was kept in a cloth and the rest of the material was kept in the same bag and sealed. Accused was arrested at 13:15 hrs. The said contraband were taken into possession vide Recovery Memo (Ext. Ka 1). An FIR (Ext. Ka 2) was lodged by Bhuvnesh Dutt Sharma (PW1). The said sample so taken was sent to the Chemical Examiner through Subhash Chandra Uttam (PW3) on 07.02.2000. The said sample was made available to the Forensic Science Laboratory, Agra on 18.02.2000. As per the report of the Forensic Science Laboratory, Agra (Ext. Ka 5), the tested material was found to be Charas. Charge-sheet (Ext. Ka 6) was filed after completion of investigation.

Charge under Section 18 read with Section 20 of the Act, 1985 was framed. Respondent-accused pleaded not guilty and claimed to be tried.

In order to bring home the guilt of the accused, prosecution examined as many as seven witnesses.

(PW1) S.S.I. Bhuvnesh Dutt Sharma and (PW2) Head Constable Ashok Kumar were members of the arresting party.

(PW3) Subhash Chandra Uttam was Sub Divisional Magistrate, Sadar.

(PW4) Constable Laxmi Dutt is the scribe of the First Information Report.

(PW5) Mathura Prasad Juyal and (PW6) Ashok Arora are Investigating Officers.

According to the prosecution, (PW7) Constable Vipun Pal took the said sample to the Sub-Divisional Magistrate, Subhash Chandra Uttam on 07.02.2000 and made the said sample available to the Forensic Science Laboratory, Agra on 18.02.2000.

Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973. He denied all the incriminating evidence, produced by the prosecution. He stated that he was in his shop on 02.02.2000. The police came to the shop and searched the shop. The police had found half-a-quarter bottle of liquor in his shop. They took him to the police station in the case of liquor and falsely implicated him in this case. He has examined witness Prakash Chandra Bhatt (DW1) in support of his submissions.

(DW1) Prakash Chandra Bhatt deposed that on 02.02.2000, police had come to the accused’s shop. At that time, he had gone to Jagat Singh’s shop to deliver biscuits. The shop of Jagat Singh was in front of the shop of the accused. The police searched the shop of the accused. They had found half-a-quarter bottle of liquor in his shop. They had taken the accused with them. He later came to know that the accused had been falsely implicated in the case of Charas. He further deposed that he was the President of the Trade Union at the time of the incident. A delegation headed by him met the District Magistrate and Superintendent of Police. He had also given an application (Ext. Kha 1) in this regard to the Superintendent of Police, Pithoragarh on 04.02.2000.

Mr. S.S. Adhikari, learned Deputy Advocate General, contended that the case of the prosecution as narrated in the First Information Report has been duly proved. Therefore, the judgment of the acquittal is not justified in law and as such the same is liable to be set aside.

On the other hand, Mr. Lokendra Dobhal, learned counsel for the respondent, has supported the impugned judgment.

The law is well settled that the order of acquittal strengthens the presumption of innocence of the accused. It is equally the duty of the Court to see that the guilty do not escape punishment.

As per the Table prepared in terms of Section 2 (XXiiia) and Section 2 (Viia) of the Act, 1985, lesser than 100 grams of Charas is small quantity and greater than 1 kg is commercial quantity (Entry No. 23). Therefore, according to the prosecution, recovered contraband was non-commercial.

In the present case, as per the Recovery Memo (Ext. Ka 1), the recovered materials were neither weighed nor the sample taken was sealed. It is for the prosecution to prove that right from the stage of seizure till it reached before the Chemical Examiner, there was no possibility of change or tampering with the sample of the recovered material. The prosecution is bound to produce the entire link evidence in this respect.

In his cross-examination, S.S.I. Bhuvnesh Dutt Sharma (PW1) has stated that the recovered materials were not weighed and the sample was also taken randomly. Sub-Divisional Magistrate Subhash Chandra Uttam (PW3) clearly stated in his cross-examination that 50 grams of Charas was taken out for sample but as per the recovery memo it was not sealed on the spot. Laxmi Dutt Bhatt (PW4) deposed that on the basis of the recovery memo, he had registered the First Information Report on 02.02.2000 at 15:20 hrs and had deposited that recovered materials in the Malkhana of the police station. The Malkhana register was not produced during the trial.

Investigating Officer Mathura Prasad Juyal (PW5) has stated that during the investigation, he had seen a 50 grams sample bundle in the Malkhana which had Bhuvnesh Dutt Sharma’s (PW1) seal on it. Therefore, in the light of this evidence, it is also clear that the seal of the Officer-in-charge of police station was not affixed on the sample bag. Whereas, it was mandatory on the part of the Officer-in-charge of the police station to affix his seal on the sample bag and also on the bag of the seized contraband. A duty is cast upon the Officer-in-charge of the police station to affix his own seal also.

The most important factor in this case is that according to Mathura Prasad Juyal (PW5), the sample was sent to the Forensic Science Laboratory, Agra through Constable Vipun Pal (PW7) on 16.02.2000 by the order of the Special Judicial Magistrate. Contrary to this evidence, Constable Vipun Pal (PW7) deposed that on 07.02.2000, he and Inspector Mathura Prasad Juyal (PW5) had gone to Sub-Divisional Magistrate, Sadar along with two bundles of the recovered materials and papers were prepared in the Court of Sub-Divisional Magistrate to take the said material to the Forensic Science Laboratory. He was directed to take the sample to Agra. After these proceedings, the said materials were deposited in the Malkhana of the police station and on 17.02.2000, after taking out the sample from Malkhana, he took it to Agra and made it available to the Forensic Science Laboratory, Agra on 18.02.2000.

According to the prosecution, 50 grams of sample was sent to the Forensic Science Laboratory, Agra for examination. While according to the report of the Forensic Science Laboratory, Agra (Ext. Ka 5), the material received by the Laboratory was only 6 grams.

During the arguments, a clarification was sought from Mr. S.S. Adhikari, learned Deputy Advocate General, in this regard, but he could not explain the fact that when 50 grams of sample was sent to the Forensic Science Laboratory, Agra according to the prosecution, under what circumstances, the laboratory received only 6 grams of material. Therefore, it cannot be said that the prosecution has ruled out the possibility of the sample parcel having not been tampered with by any body till it reached before the Chemical Examiner.

These circumstances make the case of the prosecution a suspect. Therefore, I am in complete agreement with the view taken by learned Trial Court and see no reason to interfere with the judgment impugned herein.

Consequently, the Government Appeal (No.463 of 2007) is liable to be dismissed; the same is dismissed accordingly.

The Lower Court Records be sent back.