Uttarakhand High Court
"State vs Narendra Gwal" on 18 May, 2023
Author: Alok Kumar Verma
Bench: Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
18th MAY, 2023
GOVERNMENT APPEAL NO. 493 of 2007
Between:
State of Uttarakhand .....Appellant
and
Narendra Gwal .....Respondent
Counsel for the Appellant : Mr. S.S. Adhikari, Deputy
Advocate General assisted
by Mr. Balvinder Singh,
Brief Holder.
Counsel for the Respondent : Mr. Amar Murti Shukla,
Amicus Curiae.
Hon'ble Alok Kumar Verma, J.
Present Government Appeal has been filed against the judgment dated 21.10.2003, passed by learned Special Judge, Pithoragarh in Special Sessions Trial No. 05 of 1997, "State vs. Narendra Gwal", by which, respondent-accused has been acquitted of the charge under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "Act, 1985").
2. The prosecution case, briefly stated, is that on 18.12.1996, Station Officer Amar Singh (PW4) had come for checking at Gauri bridge with Head Constable Ravindra Singh (PW1) and Constable Sate Singh. They were checking 2 with Constable Suraj Pal Singh (PW3) and other police personnel. They saw a jeep, bearing Registration No.UP03- 2184, going from Dharchula towards Pithoragarh. That jeep was checked by them at around 9.15 hrs. Driver Mahendra Singh was driving of that jeep. Accused Narendra Gwal was sitting on the left seat of the said jeep. He had a bag in his lap. His name and address were asked. He told that he had charas in his bag. He was asked if he wanted to give his search before any Judicial Magistrate or Sub-Divisional Magistrate. He had expressed his desire to give his search before the Sub-Divisional Magistrate. The driver and other passengers of the jeep had refused to give evidence. At around 11.45 hrs, accused was produced before Amar Nath Upadhyay (PW2), the then Sub-Divisional Magistrate, Dharchula. Scales and weights were brought. The weight of the recovered charas was found to be 1 Kg. 200 grams. The recovered contraband was sealed. The said contraband was taken into possession vide Recovery Memo (Ext. Ka. 1). An FIR (Ext. Ka. 2) was lodged. Sample was sent to the Chemical Examiner, Agra, who found the same to be "Charas". Charge-sheet was filed after completion of investigation.
3. Charge under Section 20 of Act, 1985 was framed. Accused pleaded not guilty and claimed to be tried. 3
4. At the trial, the prosecution examined five witnesses.
5. Statement of 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 a student of Class IX. He was going to his relative's house. He was falsely implicated by the police.
6. Accused examined Mohan Ram (DW1) in his defence evidence.
7. Learned Trial Court heard arguments, appreciated the evidence and passed the impugned judgment, by which, respondent-accused has been acquitted.
8. Mr. S.S. Adhikari, learned Deputy Advocate General, argued that the prosecution has proved its case against respondent-accused beyond all reasonable doubt; prosecution has examined five witnesses and all of them have supported the case of the prosecution; therefore, judgment of acquittal is not justified in the eyes of law.
9. Mr. Amar Murti Shukla, learned amicus curiae, has supported the impugned judgment.
10. An accused must be presumed to be innocent until he is proved to be guilty is an integral part of the Criminal Justice System and the said presumption is strengthened by the order of acquittal. In case of acquittal there is double presumption in favour of the accused. However, it is equally 4 the duty of the Court to see that the guilt do not escape punishment. Therefore, I have carefully assessed the evidence, available on the record.
11. (PW1) Head Constable Ravindra Singh, (PW3) Constable Suraj Pal Singh and (PW4) In-charge Inspector Amar Singh, informant, were members of the raiding party. According to the prosecution, the sample was taken from the seized contraband in the presence of (PW2) Amar Nath Upadhyay, Sub-Divisional Magistrate, Dharchula and (PW5) Mukhtyar Singh Rana is an Investigating Officer.
12. The prosecution's case is that the respondent- accused was checked on 18.12.1996 at about 9:15 hrs. He was produced before the Sub-Divisional Magistrate, Dharchula (PW2). 1 Kg. 200 grams of charas (Material Ext.
1) was recovered from his bag. The recovered material was sealed before the Sub-Divisional Magistrate, Dharchula (PW2). An FIR was registered by Head Constable Ravindra Singh (PW1). On 04.02.1997, Suraj Pal Singh (PW3) had taken a sample of 50 grams to the Forensic Science Laboratory, Agra. According to the Forensic Science Laboratory's report (Ext. Ka. 7), the same was received by the Laboratory on 07.08.1997 with the seal of the Sub-
Divisional Magistrate, Didihat.
13. As per the recovery memo, the contraband was sealed before (PW2) Amar Nath Upadhyay, the then Sub- 5 Divisional Magistrate, Dharchula. Constable Suraj Pal Singh (PW3) has stated that it is neither written in the recovery memo with whose seal the contraband was sealed nor does he remember with whose seal the recovered contraband was sealed. In his cross-examination, he does state that the recovered article was kept in the Malkhana of the police station, while (PW5) Mukhtyar Singh Rana, Investigating Officer, has stated that the contraband was kept in the Malkhana of the SDM office. But neither the Malkhana register of the police station nor the Malkhana register of the Sub-Divisional Magistrate's office was produced during the trial nor any reason has been given by the prosecution for not producing the Malkhana register.
14. (PW3) Suraj Pal Singh has stated that sample of charas was taken on the spot in the presence of the Sub- Divisional Magistrate to send it to the laboratory. Contrary to this evidence, (PW2) Amar Nath Upadhyaya, the then Sub- Divisional Magistrate, Dharchula has stated that neither the sample was taken by him nor the sample was taken by the Station Officer in his presence to send to the laboratory.
15. As per the report of the Forensic Science Laboratory, Agra (Ext. Ka. 7), the sample was made available to the laboratory with the seal of the Sub- Divisional Magistrate, Didihat. (PW5) Mukhtyar Singh Rana, Investigating Officer, has stated that on 17.01.1997, after 6 receiving the contraband from the Sub-Divisional Magistrate, Didihat, he produced the same before the Sessions Judge, Pithoragarh, but the contraband was not sent for examination by him. Rather, he had directed him to produce the contraband before the Superintendent of Police, Pithoragarh. Therefore, he produced the recovered contraband before the Superintendent of Police, Pithoragarh on 31.01.1997. But, this fact has not been clarified by the prosecution that at what time the recovered contraband was produced before the Sub-Divisional Magistrate, Didihat.
16. According to Suraj Pal Singh (PW3), he took the sample to the laboratory on 04.02.1997, while according to the report of the Laboratory (Ext. Ka. 7), the sample was made available to the laboratory on 07.08.1997. This delay has not been explained by the prosecution. It has not been explained by the prosecution that at which place the sample was kept from 04.02.1997 till it was made available to the laboratory.
17. According to the prosecution case, 50 grams of charas was sent to the laboratory, whereas according to the report of the Laboratory, only 35 grams of charas was made available to the laboratory. These contradictory statements have also not been explained by the prosecution.
18. The onus is on the prosecution to prove that the seized material was in safe custody. The prosecution must 7 prove that the seized material before being sent to the Forensic Science Laboratory was kept in safe custody. There is no evidence on record that the seized article was kept in the safe custody. Malkhana Register was not produced before the Trial Court. Therefore, the prosecution evidence is wholly unconvincing so far as it relates to the question of safe custody of the alleged recovered contraband.
19. The link evidence suffers from the lacunae. The prosecution has not proved beyond reasonable doubt that after the seizure, the sample of the alleged contraband was duly sealed on the spot, and, thereafter, it was kept in safe custody in police Malkhana till it was sent to the Chemical Examiner for examination.
20. The sample was received by the laboratory on 07.08.1997. During this period, it was not tampered with, this fact is not proved by the prosecution beyond reasonable doubt. Therefore, there is a big gap and an important missing link.
21. The variation in the weight of the sample indicates that either the sample was tampered with or the sample sent to the Forensic Science Laboratory was not the sample which was alleged to have been recovered from the respondent-accused.
22. There is no material on record to show in whose custody and where the seized article and the sample were 8 placed from the time of seizure till the time when it was sent to the Chemical Examiner. This is unexplained gap as regards the custody which makes the prosecution case doubtful.
23. According to the prosecution, the driver and other passengers of the jeep had refused to give evidence. Mohan Ram (DW1) has deposed that on 18.12.1996 he was sitting in the jeep on the seat next to the accused. The police personnel took out a bag from the jeep and asked all the passengers whose bag it was. At that time, the accused was vomiting after getting down from the jeep. Prosecution has not given any suggestion to this witness that he was not in the jeep or that the police asked him to give evidence and he refused to give evidence. Under these circumstances, it appears that if a public witness had been examined by the prosecution, his evidence would not have supported the prosecution's case.
24. When there is contradictory evidence regarding the collection of sample and manner of sending the said sample to the Laboratory, the prosecution case becomes doubtful.
25. Thus, in view of aforesaid discussion, I am of the view that the prosecution has miserably failed to prove its case beyond reasonable doubt against the respondent. 9 Therefore, this Court upholds the view taken by learned Trial Court.
26. As a result, the instant Government Appeal is liable to be dismissed; the same is dismissed accordingly.
__________________ ALOK KUMAR VERMA, J.
Dt: 18th May, 2023 Neha