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CASE NO.: Appeal (crl.) 1893  of  1996

PETITIONER: STATE OF HARYANA

       Vs.

RESPONDENT: VIDHYA  DHAR

DATE OF JUDGMENT:       01/03/2002

BENCH: R.P. Sethi & K.G. Balakrishnan

JUDGMENT:

K.G. BALAKRISHNAN, J.

       This appeal is preferred by the State of Haryana challenging the judgment and  order  passed  by the learned Single Judge of the High Court of Punjab and Haryana  reversing conviction of the respondent, Vidhya Dhar, under Section 18 of the  Narcotic Drugs and Psychotropic Substances Act, 1985. The respondent was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs,1,00,000/- and in default thereof to undergo rigorous imprisonment for a period of one year.    The facts of the case, in brief, are thus.

       On 4.12.1992, Sub Inspector Ram Chander, along with some police personnel was proceeding in a vehicle  towards   village  Sangwan.   When they reached the bus stand,  they saw the respondent coming from the village side to the bus station.   On seeing the police party, the   respondent tried to escape. This aroused suspicion in the mind of  Sub Inspector   Ram Chander.   The police party intercepted the respondent and tried to conduct a search on his person.    The respondent was told that if he desired, the search  could be effected in the presence of a Gazetted Officer or a Magistrate.   The respondent, however,  declined to  have the search conducted   either in the presence of a Gazettted Officer or  Magistrate.   This was recorded in the form of a statement, which was marked in the proceedings  as Ex. PG.    On conducting search of the respondent, a  tin was recovered from the bag belonging to the respondent.   It was found to contain about 2 kilogram and 250 grams opium.   A sample was taken   from   the   opium  and  sealed.       Both  the  packets  containing  opium and  its  sample  were taken into possession after preparing a recovery note. The respondent along with these two packets was produced before the Officer Incharge of Police Station, Tosham.   The Officer Incharge   verified  the facts and affixed his own seal  ’RKB’  on both the packets  containing  sample  and the rest of  opium.    The articles were deposited in the ’Malkhana’.   Thereafter, the sample of the opium   was sent for chemical analysis and on receipt of the report, the charge sheet was filed against the respondent.

       The respondent pleaded not guilty.   In support of prosecution case,  five witnesses were examined.   The respondent pleaded that he was falsely implicated.    The Addl. Sessions Judge, after consideration of the evidence, found the respondent guilty of the offence charged against him.    The Sessions Court   found   that   there   was no violation of the provisions contained in Section  50 of the  Narcotic Drugs & Psychotropic Substances Act  and that the prosecution had proved recovery of  2 kilograms and 250 grams   of  opium from the possession of the respondent.   The respondent   had   contended   before

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the learned Sessions Judge that  there was  tampering with the seal affixed on the  packet  containing   the  sample.   But that plea was rejected.

       Aggrieved  by the findings of the Sessions Judge, the respondent filed an appeal and the learned Single Judge acquitted the respondent on the sole ground that there appeared to be some tampering with the seals affixed on the packet  containing   the sample.   The learned Single Judge stated in the impugned judgment  that PW-5,  Inspector  Amar Singh took sample and he put his seal  ’AS’ and entrusted the same to the Station House Officer and   the Station House Officer put his seal ’RKB’.    The learned Single Judge observed that  Sub Inspector  Ram Chander had deposed that he had verified and affixed his seal.   The learned Single Judge was, therefore,  of the opinion  that if verification was done, PW-1 must have opened the packet and thereafter he must have put his seal ’RKB’ and in that case the original seal ’AS’ should not have been there on the packet.   On this premise it was held that the chances of tampering could not be ruled out and the respondent accused was entitled to the benefit of doubt.    This finding of the learned Single Judge is challenged before us.

We have heard Shri J.P. Dhanda, learned counsel for the appellant-State and Shri Vishal Malik, learned counsel for the respondent.   It was submitted by learned counsel for the State  of Haryana that there was no tampering with the seal  placed  on  the  packet  of  opium sample collected  and the evidence of the prosecution is very clear on this aspect.   We have perused the  evidence adduced in this case.   PW-4 Sub Inspector,  Ram Chander, had  collected the sample of  the opium recovered from the respondent.   PW-4 deposed:  "The sample and the residue were sealed with the seal of AS.   The seal after use was handed over to Badan Singh and the sample and the case property were taken into  possession   vide memo Ex. PH attested by me and PW Badan Singh. Case property is Ex.P1  and   the  sample    is Ex. P2 and the ’thelais’   Ex.P3. After that, the police party along with the accused and the case property went to the SHO, PS Tosham, who had verified the facts from the accused as well as from  the witnesses and checked  the case property and the  sample.  He affixed his own seal of "RKB"  on the sample   and   the residue."      PW-4 did not say that the packet of the sample was opened   and fresh ’AS’ seal put thereon.

Sub Inspector  Rameshwar Kumar, who was also the Station House Officer, was examined as PW-1.       He   deposed :  "I had verified the facts from SI Amar Singh, witnesses and the accused.   Case property was found sealed with the seal of AS and the same seal was found on the sample.   After verification of the case property and sample I also affixed my seal of  "RKB"  on the residue as well as the sample."    PW-1   was    cross-examined by the counsel for the respondent.    It was not suggested to him whether the  seal put by the Sub Inspector  Ram Chander,   was found tampered or not.   In fact, there was no cross examination regarding the tampering of the seal.    All  that  he deposed was  that he checked and verified  the facts  and   then affixed his seal on the  sample as well as on the rest of the opium recovered from  the respondent.

       On a  perusal of the evidence of PW-1 and PW-4, we are unable to perceive any defect therein and it clearly shows that the seal put on the sample packet was found intact.   The learned Single Judge did not appreciate the evidence adduced by the prosecution in the correct perspective.

       The prosecution, in our opinion,  successfully  proved that 2 kilograms and 250 grams opium was recovered from the respondent and there was no procedural illegality in the investigation.    The finding of the learned Single Judge that there was  tampering  with the seal put by  the Investigating Officer was without any basis and the   respondent was not entitled to   get    benefit  thereof. As  there was clear misreading of evidence, we are constrained to reverse the finding of acquittal.   We, therefore, set aside the impugned judgment of the learned  Single Judge,    allow   this appeal  and affirm    the     conviction    and sentence   of  the   respondent   as  recorded   by    the  Addl.  Sessions   Judge, Bhiwani.

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                               J                                 [ R.P. Sethi ]

                               .J                                 [ K.G. Balakrishnan ]

                               March   1,  2002