JUDGMENT
Sham Sunder, J.
1. This appeal is directed against the judgment of conviction and the order of sentence dated 14.7.1997, rendered by the Court of Addl. Sessions Judge, Patiala, vide which it convicted the accused/appellant Amarjit Singh, for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as ‘the Act’ only) and sentenced him to undergo rigorous imprisonment for a period often years, and to pay a fine of Rs. 1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of two years.
2. The facts, in brief, are that on 29.5.1996, Kashmira Singh, ASI along with other police officials was going towards Rattanheri, Marori etc. for patrol duty, on private scooters and when the police party, reached at Bhawanigarh crossing, in City Samana, Baghel Singh son of Kartar Singh met it, who was also joined in the police party. When the police party proceeded further and reached at a place from where another road bifurcates and leads to village Saundhewal, the accused was seen coming, on foot, from the side of Village Rattanheri, carrying a polythene bag, on his head. On seeing the police party he tried to slip away, but was apprehended on suspicion. On his search, in accordance with the provisions of law, 9 kg.500 grams poppy husk was recovered. The accused could not produce any licence, for keeping in possession the poppy husk. A sample of 250 grams, was separated therefrom. The sample and the remaining poppy husk were converted into parcels, sealed with the seal bearing impression ‘KS’ and thereafter the case property was taken into possession vide memo Ex. P-3. Ruqa was sent to the Police Station, on the basis whereof, the FIR was registered. Rough site plan of the place of recovery was prepared. The statements of the witnesses, were recorded. After the completion of investigation, the accused was challaned.
3. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty and claimed judicial trial.
4. The prosecution, in support of its case, examined Nishan Singh, Head Constable, PW-1, Kashmira Singh, ASI, PW-2, Surinder Singh, Head Constable, PW-3, Rachhpal Singh, Inspector, PW-4 and Beant Singh, Constable, PW-5. Prosecutor for the State tendered into evidence, the report of the Chemical Examiner, Ex. PG, and closed the same.
5. The statement of the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, produced no evidence, in his defence. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated herein before. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant.
6. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully.
7. The Counsel for the appellant, at the very outset, contended that there was a delay of 6 days, in sending the sample, as the alleged recovery was effected in this case on 29.5.1996, whereas the sample of the poppy straw, was sent to the office of the Chemical Examiner on 4.6.1996. No explanation, whatsoever, was furnished, as to why the sample was not sent to the office of the Chemical Examiner, for about 6 days. Had any explanation been furnished, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, in this regard, the Court cannot coin any of its own. The seal, after use, was handed over by the ASI to the Head Constable and not to the independent witness. It means the seal including the sample parcel remained with the Police through out until the same (sample parcel) was sent to the office of the Chemical Examiner. There was every possibility of tampering with the property in the meanwhile. In Gian Singh v. State of Punjab 2006 (2) R.C.R. (Criminal) 611, there was a delay of 14 days, in sending the sample to the office of the Chemical Examiner. Under these circumstances, it was held that the possibility of tampering with the sample, could not be ruled out, and the link evidence was held to be incomplete. Ultimately, the appellant was acquitted in that case. On account of this infirmity, the case of the prosecution became doubtful.
8. No doubt, Baghel Singh son of Kartar Singh, PW was joined by the Investigating Officer at the time of effecting the alleged recovery, but this witness was given up as won over by the accused by the Additional Public Prosecutor for the State, vide statement dated 8.4.1997 on the basis of application made by the Investigating Officer. A perusal of the application, made by the Investigating Officer does not disclose the reason, which weighed with him that Bhagel Singh was not going to support the case of the prosecution, but on the other hand, was siding with the accused. Had any reason been furnished, the matter would have been considered, in the light thereof, but in the absence of any reason, mere moving an application by the Investigating Officer that the independent witness was not going to support the case of the prosecution did not mean anything. It is no doubt true that the evidence of the official witnesses, cannot be disbelieved and distrusted, merely on account of their official status. However, when an independent witness was joined, and he was given up as won over, without any material, having been furnished, in that regard, that certainly cast a doubt on the prosecution story. In the peculiar facts and circumstances of the case, it was incumbent upon the Additional Public Prosecutor for the State to examine this witness and had he not supported the case of the prosecution, then with the permission of the Court, he could cross examine him. Even if, the independent witness, during the course of his cross-examination by the Additional Public Prosecutor had not supported the case of the prosecution, the matter would have been considered, in the light thereof. Non examination of the independent witness in the instant case, in the facts and circumstances of the case, referred to above, thus cast a doubt on the case of the prosecution. Similar principle of law was laid down, in State of Punjab v. Nachattar @ Bania 2007 (3) R.C.R. (Crl.) 1040 (Division Bench) (P & H). The Trial Court did not take into consideration this aspect of the matter, as a result whereof, miscarriage of justice occasioned.
9. The seal, in this case, after use was handed over to Nishan Singh by the Investigating Officer. When the independent witness was allegedly with the Investigating Officer, it is not known as to why the seal after use, was not handed over to him. Had no independent witness been with the police party, the matter would have been different. Had any explanation, been furnished by the Investigating Officer, as to why the seal was not handed over to the independent witness, the matter would have been considered in the light thereof, but in the absence of any explanation, having been furnished, in this regard, the Court cannot coin any of its own. Since the case property and the sample parcel remained with the police officials, though-out, until the same (sample parcel) was sent to the office of the Chemical Examiner, after a delay of 6 days, the possibility of c a&g nf the contents of the parcel in the meanwhile, especially in view of the peculiar facts and circumstances of the case could not be ruled out. It therefore, cast a cloud of doubt on the prosecution story. Similar principle of law was laid down in Nachhattar’s @ Bania’s case (supra). The trial Court did not take into consideration this aspect of the matter as a result whereof miscarriage of justice occasioned.
10. The judgment of conviction and the order of sentence, rendered by the trial xfourt are, thus, not based on the correct appreciation of evidence, and law, on the point. The same warrant interference, and are liable to be set aside.
11. For the reasons recorded, herein before, the appeal is accepted. The judgment of conviction, and the order of sentence dated 14.7.1997 are set aside. The appellant shall stand acquitted of the charge framed again him. He is discharged of the bail bonds.