ORDER
M.S.A. Siddiqui, J.
1. this appeal is directed against the judgment and order dated 16.1.1993 passed by the Additional Sessions Judge, Delhi in Sessions Case No. 911/91 convicting the appellant under Section 20 of the Narcotic Drugs and Psycho-
tropic Substances Act, 1985 (for short “the Act”) and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of rupees one lac or in default to suffer further simple imprisonment for six months.
2. Briefly stated, the prosecution case is that on 9.8.1990, a police party led by ASI Raghbir Singh (PW-7), upon information received, apprehended the appellant near railway crossing. He was given the option of
being searched by ASI Raghbir Singh (PW-7) before a Gazetted Officer or a Magistrate. The appellant declined the offer. In the meanwhile, ACP Vijay Malik (PW-9), upon information received, also came on the spot and directed search of the appellant. He was then searched by the ASI Raghbir Singh (PW-7), as a result whereof 20 grams of charas was recovered from him possession vide Seizure Memo (Ex. PW-3/A). The appellant was charged with an offence punishable under Section 20 of the Act and tried.
3. The appellant abjured his guilt and alleged that a false case has been foisted on him. The learned Additional Sessions Judge, on an assessment of the evidence adduced by the prosecution accepted the prosecution case and convicted and sentenced the appellant as indicated above.
4. The point for consideration in this appeal is whether on 9.8.1990, the contraband was seized from the appellant’s possession in accordance with the provisions of Section 50 of the Act. The evidence of the prosecution
pertaining to the recovery of the contraband revolves round the evidence of Parma Nand (PW-3), Vijay Mehta (PW-5), ASI Raghbir Singh (PW-7), Inspector Joginder Pal (PW-8) and ACP Vijay Malik (PW-9). It has come in the evidence of ASI Raghbir Singh (PW-7) that on 9.8.1990, while on patrolling duty accompanied by SHO Joginder Pal (PW-8), Constables Hawel Singh, Trilok Chand and Dilbagh, he received a secret information on the basis of which he organized a raiding party and laid an ambush near the railway crossing. At about 5 a.m., appellant was spotted near the railway crossing and was
apprehended on the spot. The appellant was given the option of being searched before a Gazetted Officer or a Magistrate but he declined the offer. In the meanwhile, ACP Vijay Malik (PW-9), upon the information received, came to the spot and directed search of the appellant. Thereafter, he took search of the appellant and recovered 20 grams of charas from his possession vide Seizure Memo (Ex. PW-3/A). A sample of two grams of charas was drawn from the contraband seized from the appellant. The sample as well as the remaining charas were converted into separate parcels and they were duly sealed on the spot. CFSL form was duly filled up. The contraband articles along with CFSL form were handed over to Inspector Joginder Pal (PW-8) for being deposited in the Mal Khana. On completion of the said formalities, he sent the rukka (Ex. PW-7/A) to the police station on the basis of which the FIR (Ex. PW-2/A) was registered at the police station. Parma Nand (PW-3), who is one of the panch witnesses, testified that at the relevant time one puriya containing charas was recovered from the appellant’s possession whereas panch witness Vijay Mehta (PW-5) deposed that 20 grams of opium was recovered from the appellant’s possession. In other words, Vijay Mehta (PW-5) has not supported the prosecution version
regarding the alleged recovery of charas from the appellant’s possession. However, Inspector Joginder Pal (PW-8) and ACP Vijay Malik (PW-9) have corroborated evidence of the ASI Raghbir Singh (PW-7)
5. It is significant to mention that the rukka (Ex.PW.-7/A) prepared by the ASI Raghbir Singh (PW-7) reveals that the alleged recovery of contra-band was made at 5 a.m. and the same was sent to the police station at 6.55 a.m. The FIR (Ex.PW-2/A) shows that it was recorded at the police Station at 7.10 a.m. Surprisingly, the Seizure Memo (Ex. PW-3/A), the Search Memo (Ex. PW-5/A), the memorandum of search and seizure (Ex.PW-9/A) prepared by ASI Raghbir Singh (PW-7) on the spot bear the number of the FIR (Ex. PW2/A). It is also significant to mention that the number of the FIR (Ex. PW-2/A) given on the top of the aforesaid documents in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation whatsoever as to under that circumstances number of the FIR (Ex. PW-2/A) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW-2/A) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version as narrated by the aforesaid witnesses and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution.
6. There is yet another staggering circumstance against the prosecution, the benefit of which must necessarily go to the appellant. Inspector Joginder Pal (PW-8) deposed that on 9.8.1990, he took in his custody the pulindas containing the contraband articles and the CFSL form and deposited them in the police Mal Khana. Head Constable Durga Singh (PW-1) deposed that on that day Inspector Joginder Pal (PW-8) had deposited the said articles in the police Mal Khana vide entry (Ex. PW-1/A) in the Mal Khana register. Although, the entry (Ex. PW-1/A) of the Mal Khana register re-cites the whole procedure adopted by the police party led by ASI Raghbir Singh (PW-7) in recovering the contraband articles from the possession of the appellant but it does not mention that the CFSL form was also deposited by the Inspector Joginder Pal (PW-8) along with the sealed pulindas. Thus, there is not an iota of evidence to show a to where the CFSL form containing the specimen seals had remained till the sampled contraband was despatched to the Chemical examiner. Needless to add that the provisions of the Act are so stringent that it cast a duty on the prosecution to rule out any possibility of tampering of the sample and false implication of an accused. It must be borne in mind that the severer the punishment, the greater care has to be taken to see all the safeguards provided in a statute are scrupulously followed. Unfortunately, the learned Additional Sessions Judge did not take notice of the aforesaid infirmities in the prosecution case and unjustifiably accepted the prosecution evidence. Consequently, the impugned order of conviction and sentence cannot be sustained.
For the foregoing reasons, the appeal is allowed and the impugned order of conviction and sentence is set aside and the appellant is acquitted of the offence punishable under Section 20 of the Act. The appellant is
in custody. He shall be set at liberty immediately, if not wanted in any other cause. The fine if paid shall be refunded to the appellant.