"State vs Narendra Gwal"
2023 Latest Caselaw 1378 UK

      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

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.

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

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-

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

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

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

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.

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