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NON-REPORTABLE

  IN THE SUPREME COURT OF INDIA    CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.997 OF 2009

THE STATE OF UTTAR PRADESH                         ...APPELLANT(S)

                               VERSUS

HANSRAJ @ HANSU                                    .….RESPONDENT(S)

J U D G M E N T

R. BANUMATHI,J.

1. This  appeal  arises  out  of  the  judgment  dated

13.12.2005 in Criminal Appeal No. 3651 of 2002 passed by the

High Court of Judicature at Allahabad in and by which the High

Court has set aside the conviction of the respondent-accused

for the offence under Section 20(b)(ii) of N.D.P.S. Act and

also the conviction under Section 60 of Excise Act and also

sentence of imprisonment imposed upon the respondent-accused.

2. On 17.07.1998 wee hours at about 1.25 a.m. when PW-1 (Ram

Chandra Misra) and PW-2 (P.C. Sharma) were on patrolling duty,

they had received an information that the respondent-accused

along with another person were about to transport country-

made  liquor  for  sale.  When  PW-1  and  PW-2  apprehended  the

respondent-accused and his companion, the respondent-accused

was found to be in possession of 2700 pouches of country made

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liquor kept in 18 plastic bags and he was also found to be in

possession of 300 grams of charas in his pocket. After the

formal  search  and  after  completion  of  the  investigation,

charge-sheet was filed against the respondent-accused under

Section 20 of the N.D.P.S. Act and under Section 60 of the

Excise Act.

3. Upon consideration of evidence, the Trial Court convicted

the respondent-accused for the offence under Section 20(b)(ii)

of N.D.P.S Act and sentenced him to undergo R.I. for 10 years

along  with  fine  of  Rs.  1,00,000/-  (Rupees  one  lakh)  for

default.  The respondent-accused was also convicted for the

offence under Section 60 of the Excise Act and was sentenced

to undergo R.I. for one year. In appeal, the High Court has

set  aside  the  verdict  of  conviction  and  also  sentence  of

imprisonment imposed upon the respondent-accused as aforesaid

in para 1.

4. We have heard Mr. Garvesh Kabra, learned counsel for the

appellant-State  as  well  as  Ms.  Nidhi,  learned  counsel

appearing for the respondent-accused and perused the impugned

judgment and the materials on record.

5. The High Court acquitted the respondent-accused primarily

on the ground that there was delay in sending the sample to

the laboratory and that there was no evidence to show how and

in what condition the recovered contraband and the samples

were kept in the meanwhile. The recovery of the charas was on

17.07.1998  and  the  sample  packets  were  received  in  the

laboratory only on 22.08.1998. Learned counsel appearing for

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the State has drawn our attention to the evidence of PW-1,

Sub-inspector (Ram Chandra Misra) and PW-2 (P.C. Sharma) who

in  their  evidence  stated  that  the  substance  which  was

recovered  and  sealed  were  deposited  in  the  Police  Station

Godown  and  later  produced  before  the  Court.  Though  the

witnesses have stated that the substance was deposited in the

Police Station Godown and later produced before the Court as

pointed out by the High Court that there is no evidence to

show that as to how and at what time and date the samples were

taken  by  the  carriers  for  analysis.  It  has  also  come  on

evidence that constables viz.  Asharam and Karam Chand have

taken the sample of charas and liquor packets respectively to

the laboratory, were also not examined by the prosecution.

6. The High Court has also pointed out that it was

incumbent on the part of the prosecution to lead the evidence

to show as to how and in what conditions the articles were

preserved at the Police Station and how safely they were taken

from  there  to  the  respective  chemical  examiners  by  its

carriers. Learned counsel for the State has submitted that the

investigating officer in this particular case has passed away

and, therefore, the prosecution was handicapped in adducing

the  necessary  evidence.  Notwithstanding  the  death  of  the

Investigating Officer, nothing prevented the prosecution from

examining  any  other  witness  who  was  associated  with  the

investigation and adducing necessary evidence to prove as to

how and in what conditions the articles were preserved at the

Police Station/Police Station Godown.

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7. Upon appreciation of evidence, the High Court has

taken  a  view  that  guilt  of  the  accused  has  not  been

established and the same cannot be said to be unreasonable one

or suffering from perversity warranting our interference in

the order of acquittal.

8. In  the  result,  the  appeal  is,  accordingly,

dismissed.

….......................J. [ R. BANUMATHI]

…......................J. [INDIRA BANERJEE]

NEW DELHI 12TH SEPTEMBER, 2018