JUDGMENT
1. This appeal by special leave is directed against an order and judgment of the High Court of Madhya Pradesh, Indore Bench dated 26-9-1997 upholding the conviction and sentence of the appellant for an offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS Act‘).
2. According to the prosecution case on 8-8-1988 at about 4.30 p.m. the appellant was travelling in a bus which was checked by Narcotics Sub-Inspector Dudhnath Ram PW-1 near Hasanpaliya village at Neemuch-Dhar Road. PW-1 found that there was an attachee lying on the rack and three persons were sitting on the back side seat of the bus. On inquiry as to who did that attachee belong to, the appellant is stated to have admitted that it belonged to him. The attachee also carried a name slip with the name of the appellant on it. The attachee was taken into possession by PW-1 and the appellant was made to alight from the bus. He was asked about the key of the attachee which he took out from his pocket. Two panch witnesses Shankar Lal, PW-2 and Chhoga Lal, PW-3 were present. It is alleged that when the appellant opened the attachee it was found to contain a bag which had black substance in it. The panches smelt the same and opined it to be opium. It was weighed and seized and two samples of 30 gms. each were taken out from the same for purposes of chemical examination. Those were sealed in two empty cigarette boxes. The cigarette boxes were wrapped, with a thread and sealed. The panch witnesses PW-2 and PW-3 signed on the wrapper as well as on the panchnamas which were prepared at the spot. The seized articles were produced by PW-1 before PW-7 Shri Rajdev Ram who was working as District Opium Officer at the relevant time. The samples were sent for chemical examination and according to the report of the chemical examiner, the samples were found to be of opium. The appellant was, thereafter, sent up for trial
for offences under Sections 8/18 of the NDPS Act. Additional Sessions Judge, Jawara vide judgment dated 1-12-1994 convicted the appellant for the said offences and sentenced him to undergo RI for 10 years and to pay a fine of Rs. 1,00,000/-. In default of payment of fine the appellant was to further undergo RI for 2 years. Aggrieved by the conviction and sentence, the appellant filed an appeal before the High Court which, as already noticed, was dismissed.
3. We have heard Mr. Rao Ranjit, who has appeared as amicus curiae for the appellant and Ms. Vibha Datta Makhija for the State.
4. The only evidence on which the prosecution case hinges is that of PW-1 Shri Dudhnath Ram who at the relevant time was working as Sub-Inspector, Narcotics. Both the panch witnesses, Shankar Lal PW-2 and Chhoga Lal PW-3 have not supported the prosecution case. Even the driver of the bus Hari Singh PW-5 and conductor of the bus Afsar-U-ddin PW-6 turned hostile and did not support the prosecution case. Our careful analysis of the deposition of PW-1 Dudhnath Ram shows that his testimony suffers from many infirmities and it would not be safe to rely upon his sole testimony to hold the appellant guilty.
5. It has not at all been explained by the prosecution and by PW-1 as to why he brought down only one passenger from the bus, if he did not have any prior information or entertained any suspicion regarding the involvement of the appellant for possessing or smuggling of opium. It is not the case of PW-1 that he had any prior information and therefore he searched the bus looking for the suspect. In case he had some prior information, he was obliged to make a record of it and send its copy to higher officials before proceeding for checking duty. On his own admission PW-1 went towards Ratlam for checking buses with a view to find out in case any opium was being smuggled or if anybody was found in possession of the same. He checked only one passenger from the bus which had almost 30/40 other passengers and “discovered” that the only passenger was in possession of opium. The entire story sounds unnatural. There is no explanation given by PW-1 as to why he did not search or question any other passenger. Since, both the panch witnesses as well as the driver and conductor of the bus have
given a lie to the statement of PW-1 Dudhnath Ram, we have scrutinized his evidence with great care but the same does not inspire confidence.
6. According to PW-1 Dudhnath Ram, the two panch witnesses were with him and both of them belonged to village Hasanpaliya. These witnesses were present at the time of alleged search and seizure. During cross-examination however PW-1 stated “both the panch witnesses were summoned after the accused was made to get down from the bus with the attachee” and they witnessed both search and seizure of apium. PW-2 Shankar Lal deposed that no search or seizure took place in his presence and that he was asked to mark his thumb Impression on a paper after being summoned from his fields. According to Chhoga Lal PW-3, his signatures were obtained on the panchnama in the house of one Masij Khan and that no recovery of opium took place in his presence from the appellant. In the face of all this evidence, we do not find it safe to conclude that the prosecution has established the case against the appellant beyond a reasonable doubt. The appellant, in our opinion, is entitled to the benefit of doubt. We, accordingly, accept this appeal and set aside the conviction and sentence awarded to the appellant. Since, this appeal has been received through jail. Superintendent, Central Jail, Bherugarh, District Ujjain, Madhya Pradesh shall be informed. In case the appellant is still in custody in this case, he shall be released forthwith unless required in any other case.
7. Appeal is allowed.
