JUDGMENT
P.K. Jain, J.
1. This appeal is directed against the judgment/order dated December 15, 1994 passed by the Additional Sessions Judge, Sangrur, whereby the appellant has been convicted for an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’) and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- and in ease of default of payment of fine to undergo further rigorous imprisonment for two years.
2. The facts leading to this appeal are that on July 24, 1990, ASI Sadhu Ram, along with ASI Norata Ram, H.C. Maghar Singh and some other police officials, was proceeding in the official vehicle from village. Ghorenab to Khandebad, in connection with usual patrol duty. When the police party reached near village Khandebad, the appellant was sighted sitting in the corner of a field abutting the passage bifurcating from the main passage, towards eastern side. He was having a tin dabba in his hand and a gunny bag with open mouth was lying with him. On seeing the police party, he tried to stand up but was overpowered. The gunny bag was found to contain poppy husk. ASI Sadhu Ram sent a ruqa (Exhibit PA) through constable Teja Singh to the Police Station, on the basis of which formal FIR (Exhibit PA/1) was registered, A request was made to the Incharge of the Police Station to reach the spot for further proceedings.
3. Since no senior police officials was available in the Police Station at that time, constable Teja-Singh came back along with the original ruqa and the FIR number to the spot. Then ASI Sadhu Ram gave option to the appellant that if he so desired, the search could be conducted before a Gazetted Officer or a Magistrate, but he reposed faith in him. ASI Sadhu Ram took out two samples weighing 250 gms. each from the contents of the bag and converted the same into two separate sealed parcels with the seal of ‘SR’. The remaining consents were found to be 35 Kgs. and the. same were sealed in the same gunny bag with the seal of ‘SR’. The samples as well as the gunny bag were taken into possession by preparing a recovery memo.
4. On interrogation, the appellant made a disclosure statement that he, had kept concealed seven bags containing poppy husk in the field and could get the same recovered. Mis disclosure statement was recorded. In pursuance of his disclosure statement, the appellant led the police party to the nearby field and got recovered 7 gunny bags containing poppy husk from inside the cotton crop. Two samples weighing 250 grams each were taken out of each of the 7 begs and were coverted into sealed parcels with the same seal. The bags containing the remaining contents, which on weighing were found 38 1/2 Kgs. each, were sealed with the same seal. The case property along with the sample parcels were deposited in the malkhana. The sample parcels were sent to the Forensic Science Laboratory. On receipt of the report and after completing the investigation, a charge-sheet was submitted to the Court.
5. A charge under Section 15 of the Act was framed against the appellant, which he denied and claimed trial.
6. In support of its case, the prosecution examined 3 witnesses i.e. ASI Sadhu Ram (PW-1) and H.C. Maghar Singh (PW-2), who are the witnesses of the search and recovery, and DSP Ashutosh (PW-3) was the S.H.O. of the Police Station who had forwarded the charge-sheet to the Court. Affidavits Exhibits PK and PL of Constable Nirmal Singh and another Constable Nirmal Singh were tendered in evidence. Exhibit PH, report of the Chemical Examiner, was also tendered in evidence.
7. In his examination under Section 313 of the Code of Criminal Procedure (hereinafter called ‘the Code’), the appellant denied the allegations of the prosecution including the recovery and pleaded his innocence and false implication. In his defence, he examined Teja Singh (DW-1).
8. On an appraisal of evidence produced before him, the Additional Sessions Judge found the appellant to be guilty under Section 15 of the Act and convicted and sentenced him as stated above. Feeling aggrieved, the convict has come in appeal.
9. I have heard the learned counsel for the parties and have gone through the record with their active help.
10. Shri R.K. Battas, Advocate, learned counsel for the appellant, has argued that the origin and genesis of the prosecution story is highly improbable inasmuch as no sane person would sit on a highway and sell/narcotic substance or would be having a bag of chura-post with its mouth open lying near him exposed to the public. It has been further argued by the learned counsel that AS I Sadhu Ram did not make any effort to join independent public person to witness the search of the appellant or his subsequent interrogation and the so-called recovery of 7 bags of chura-post from the nearby field. It has also been argued by the learned counsel that the prosecution has not produced any evidence to show that the field in which the appellant is alleged to be sitting along with the open bag containing chura post or the field from where subsequently seven bags of chura post are alleged to have been recovered was owned or possessed by the appellant. It has also been pointed out by the learned counsel that the provisions of Section 55 of the Act have not been complied with by ASI Sadhu Ram which is fatal to the prosecution case. It has also been argued by the learned counsel that the link evidence to rule out the possibility of tampering with the sealed sample parcels has not been produced by the prosecution inasmuch as the witness with whom the case property was deposited and the witness who had taken the sealed sample parcels to the office of the Forensic Science Laboratory have not been examined, nor produced for cross-examination by the appellant nor their affidavits were ever put to the appellant in his examination under Section 313 of the Code. It is, thus, argued that the two affidavits Exhibits PK and PL cannot be read in evidence against the appellant.
11. On the other hand Shri Ramanjit Singh, Assistant Advocate General, Punjab, has argued that this was a case of chance recovery and independent public persons could not be procured in spite of efforts made by the police party. It has also been argued by the learned counsel that conviction can be based even on the testimony of the police officers if the same inspires confidence. The learned A.A.G. has pointed out that the testimony of ASI Sadhu Ram (PW-1) and H.C. Maghar Singh (PW-2) are consistent in all the material particulars and the same could not be shaken in any way in their respective cross-examination. It has also been pointed out by the learned A.A.G. that there was no oblique motive on the part of these two witnesses to falsely implicate the appellant in this case. It has been further argued that 7 bags of chura-post were recovered in pursuance of a disclosure statement made by the appellant and as such it can be presumed that the appellant was in possession of those seven bags of chura-post also. It has also been argued by the learned A.A.G. that non-examination of the two Constables has not caused any prejudice to the appellant and their evidence being of formal nature, the affidavits Exhibits PK and PL have been tendered in evidence which are admissible under Section 296 of the Code.
12. Respective arguments have been considered carefully. According to the prosecution case, an offer was given to the appellant that if he so desired, he could be searched before a Magistrate or a Gazetted Officer but he declined the offer and reposed faith in ASI Sadhu Ram. It may be pointed out that no record has been produced during the trial if any such offer was made to the appellant and if the appellant had declined the offer. The question arises as to whether the oral testimony of the two witnesses i.e. ASI Sadhu Ram and H.C. Maghar Singh in this respect ought to be believed.
13. According to the testimony of ASI Sadhu Ram (PW-1) and HC Maghar Singh (PW-2), the place of recovery is situated at a distance of about 400 yards only from village Khandebad. Constable Teja Singh was sent to this village to bring the weights and scales. It is also important to note that before the alleged search was conducted, this very Constable was sent to the Police Station for the registration of a case. According to the FIR., carbon copy of which is Exhibit PA/I, the Police Station is situated at a distance of 5 Miles from the place of occurrence, whereas AST Sadhu Ram in his cross-examination stated that the said distance is of 3 KMs, whereas according to HC Maghar Singh the said distance is about 4 K.Ms, but the fact remains that Constable Teja Singh had first gone to the Police Station for the registration of the case and had also gone to village Khandebad to arrange the weights and scales. The time of the apprehension of the appellant is stated to be 4.00 p.m. The testimony of ASI Sadhu Ram (PW-1) and HC Maghar Singh (PW-2) to the effect that the said Constable had been sent to arrange for independent witnesses but no one came forward to join the police party is simply hearsay evidence. The Constable has not been produced and examined to depose to this effect. The statement of these two witnesses on this aspect, of the case being hearsay is inadmissible in evidence. There is no evidence on the record to show that ASI Sadhu Ram had made any genuine effort to join any independent witness before conducting further proceedings on the spot after coming to know that the appellant was in possession of poppy husk and the registration of the case. The police party consisted of two Assistant Sub-Inspectors, two Head Constables, one Constable and one Driver Constable. The time of apprehension of the appellant was 4 p.m. In other words, AST Sadhu Ram had the time and means to join independent public person before conducting the search of the appellant but he did not make any genuine effort to do so.
14. Even though the statute does not make it obligatory, as a rule of prudence, the police officer should carry out the search, if it is possible to secure the presence of respectable witnesses in their presence. The Court will be extremely reluctant to uphold the prosecution cases which is solely based on recovery made on search not witnessed by independent and respectable persons unless it was unreasonable and impracticable to procure the presence of such witnesses. In the present case, it has been already seen above that ASI Sadhu Ram did not. make any genuine efforts nor procured the presence of independent public persons to witness the search of the appellant and his subsequent interrogation and subsequent recovery in pursuance of the disclosure statement, although he had enough time, opportunity and means at his hands to do so. This omission on the part of ASI Sadhu Ram makes the case of the prosecution suspect. For this very reason, the testimony of ASI Sadhu Ram (PW-1) and HC Maghar Singh (PW-2) regarding compliance of Section 50 is also not worthy of credence.
15. According to the prosecution after the registration of the case, the appellant was interrogated on the spot and his disclosure statement (Exhibit PD) was recorded, in pursuance of which the appellant got recovered 7 gunny bags containing poppy husk from the adjoining fields. In his cross-examination A.S.I. Sadhu Ram has admitted that he did not enquire about the ownership of the field from where the 7 bags containing poppy husk are alleged to have been recovered from inside the chari crop. Similar is the statement of H.C. Maghar Singh (PW-2). These facts are not enough to impute possession of said 7 bags to the appellant. Admittedly these bags were not buried or concealed any where but were lying inside the chari crop in two stacks. The statement-Exhibit PD alleged to have been made by the appellant would merely go to show that to the knowledge of the appellant, 7 bags were lying inside the chari crop in the adjoining field. It is not the case of the prosecution that the appellant was the owner or in possession of the said field. Merely knowledge does not constitute the possession unless some dominion and control thereon is also established. Therefore, it cannot be said that the appellant was found to be in possession of 7 bags consisting of poppy husk.
16. It is also important to note that after the alleged recovery of 8 bags of poppy husk in all, ASI Sadhu Ram did not comply with Section 55 of the Act, which reads as under:
“55. Police to take charge of articles seized and delivered:- An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.”
This Section enjoins a duty upon an officer-in-charge of the Police Station to receive and keep the goods and articles seized under this Act within the local area of the Police Station. He is also required to affix his own seal to all the samples. The clear intention of the Legislature was a fair investigation by putting the seized material beyond the reach of the seizing officer, and by eliminating the possibility of the sample being tampered with till the same reached the hands of the Chemical Examiner. The aforesaid provisions having incorporated with the mainfest object that the senior officers can be trusted to be fair in investigation and not indulging in dubious practices. When the prescribed procedure is abandoned, it gives rise to a gnawing suspicion that the officers at the junior level could have, for certain oblique reasons, rope in an innocent individual.
17. In the present case, the explanation being given by ASI Sadhu Ram is that the S.H.O. or the Officer-in-charge of the Police Station was not available at the Police Station. This explanation without any corroborative evidence does not inspire confidence. The obvious reason is that as and when a police officer leaves the Police Station for some outside duty, an entry is made in the Daily Diary as to where that Officer was going and for what purpose. Similarly, on his return, an entry is made that he had come back after doing certain specified job. The prosecution has not produced and proved any such entry of the Daily Diary to show that the S.H.O./Incharge of the Police Station was not available at the Police Station on that day when ASI Sadhu Ram came back, to the Police Station along with the appellant and the sealed parcels containing poppy husk. No entry of the Daily Diary has been produced and proved to show as to when the said S.H.O./ Incharge of the Police Station came back to the Police Station. In other words, the best evidence has been withheld by the prosecution which tells adversely upon the prosecution case and the explanation given by ASI Sadhu Ram cannot be accepted. Thus, there was a clear violation of the mandate contained in Section 55 of the Act, which further strikes at the root of the prosecution case.
18. The question arises, whether there is any link evidence on the record to establish that the sample parcels were not tampered with by anybody from the moment the same were deposited with the M.H.C. till these reached the hands of the Chemical Examiner. To prove this aspect the prosecution has merely placed two affidavits – Exhibits P.K. and P.L. sworn by two Constables on the record. It is important to note that these two Constables were not present on 13-1-1994 before the trial Court when these two affidavits were tendered before the Court nor they were ever produced subsequently to enable the appellant to cross-examine them. It is also important to note that these two affidavits were not put to the appellant in his examination under Section 313 of the Code of Criminal Procedure. Once these witnesses were not tendered for cross-examination by the appellant and further these two affidavits were not put to the appellant in his examination under Section 313 of the Code ibid, this so-called link evidence tendered in in the shape of affidavits Exhibits PK and PL cannot and could not be used against the appellant. The resultant effect is that the report of the Chemical Examiner (Exhibit PH) cannot be acted upon as the possibility that the samples were not tampered with by anybody till the same reached the hands of the Chemical Examiner, has not been ruled out. This view finds full affirmation in a judgment rendered by this Court in Jai Singh v. State of Haryana, 1995 (3) Rec Cri R 627. This fact in itself is fatal to the prosecution case.
19. For the foregoing reasons I hold that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt. Consequently, this appeal succeeds. The conviction and sentence of the appellant are hereby set aside and he is acquitted of the charge under Section 15 of the Act. The appellant shall be released forthwith, if not wanted in any other case.