"State vs Kishan Singh Joshi"
2023 Latest Caselaw 983 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

           THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA

                       12th APRIL, 2023

            GOVERNMENT APPEAL NO. 463 of 2007



Between:

State of Uttarakhand                           .....Appellant

and

Kishan Singh Joshi
                                               .....Respondent


Counsel for the Appellant   :   Mr. S.S. Adhikari, Deputy
                                Advocate General assisted
                                by Mr. Balvinder Singh and Mrs.
                                Shivangi Gangwar, Brief Holder.

Counsel for the Respondent      :    Mr. Lokendra Dobhal.


Hon'ble 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").

2. 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.

3. Charge under Section 18 read with Section 20 of

the Act, 1985 was framed. Respondent-accused pleaded not

guilty and claimed to be tried.

4. In order to bring home the guilt of the accused,

prosecution examined as many as seven witnesses.

5. (PW1) S.S.I. Bhuvnesh Dutt Sharma and (PW2)

Head Constable Ashok Kumar were members of the

arresting party.

6. (PW3) Subhash Chandra Uttam was Sub Divisional

Magistrate, Sadar.

7. (PW4) Constable Laxmi Dutt is the scribe of the

First Information Report.

8. (PW5) Mathura Prasad Juyal and (PW6) Ashok

Arora are Investigating Officers.

9. 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.

10. 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.

11. (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.

12. 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.

13. On the other hand, Mr. Lokendra Dobhal, learned

counsel for the respondent, has supported the impugned

judgment.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. Consequently, the Government Appeal (No.463 of

2007) is liable to be dismissed; the same is dismissed

accordingly.

24. The Lower Court Records be sent back.

__________________ ALOK KUMAR VERMA, J.

Dt: 12th April, 2023 Neha