JUDGMENT
Sham Sunder, J.
1. This appeal is directed against the judgment of conviction dated 30.7.1997, and the order of sentence dated 31.7.1997 rendered by the Court of Addl. Sessions Judge, Kurukshetra, vide which it convicted the accused/appellant Jaswant 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 one year.
2. The facts, in brief, are that on 6.8.1996, Paras Kumar, SI/SHO, Police Station, Shahbad, accompanied by Rajinder Singh, ASI, Head Constable Krishan Lal and other police officials was present in Government Jeep No. HR-07-1745 in connection with excise and patrol duty on Nalvi Road, Bus Stand of Village Kalsani, when a secret information was received, that the accused who was a handicapped person, was coming towards them carrying some poppy husk in a bag, and, in case, a picket was held, he could be apprehended. On the basis of the said secret information, C.I. Balkar Singh was sent to the Police Station for the registration of case. Dy. Superintendent of Police, Kurukshetra, was also informed. He came to the spot. Sohan Singh, Ex. Sarpanch of the Village, who was present there, was also joined with the police party. The accused then appeared and, on suspicion, he was apprehended. On search of his bag, in accordance with the provisions of law, 2 kg. 200 grams poppy husk was recovered. A sample of 100 grams, was separated therefrom. The sample and the remaining poppy husk were converted into parcels, sealed with the seals, bearing impressions ‘KK,’ and ‘PK’ and thereafter the case property was taken into possession vide memo Ex.PA. Ruqa was sent to the Police Station, on the basis whereof, the FIR was registered. The accused was arrested. Special report was sent to S.P. 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. The prosecution, in support of its case, examined K.K. Rao, DSP, (Head Quarter), Kurukshetra, PW-1, Paras Kumar, SI/SHO, PW-2, Parveen Kumar, PW-3, Devinder Kumar, PW-4, and Ram Singh, ASI, PW-5. Thereafter, the public Prosecutor for the State, also tendered into evidence, report of the Forensic Science Laboratory, Ex.PK, and after giving up the. independent witness, closed the same.
4. 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.
5. 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, submitted that the alleged recovery was effected on 6.8.1996, whereas, the sample was sent to the Forensic Science Laboratory, on 16.8.1996. He further contended that there was a delay of 10 days, in sending the sample, which remained un-explained on record. He further contended that, there was every possibility of the sample, being tampered with, until the same reached the office of the Forensic Science Laboratory, especially when the seals remained with the police Officer. He further contended that, no explanation, whatsoever, was furnished by the prosecution witnesses, with regard to the delay, in sending the sample to the office of the, Forensic Science Laboratory, and, as such, the possibility of tampering with the same, could not be ruled out. As to what prevented them, from sending the sample immediately after the alleged recovery is not known. No explanation, whatsoever, was furnished, as to why the sample was not sent to the office of the Forensic Science Laboratory, Madhuban, for about 10 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. 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 and the other lacunae, being pointed “But hereunder, the case of the prosecution became doubtful.
8. It was next contended by the Counsel for the appellant, that though an independent witness, in the name of Sohan Singh was allegedly joined by the Investigating Officer, at the time of the alleged recovery, yet he was not handed over the seal used in this case, by the Investigating Officer, whereas, the seal which was used by the DSP was retained by him. He further contended that since the seal, which was used by the Investigating Officer, remained with the police Officials, through-out, as also the case property and the sample parcels remained with them, there was every possibility of changing the contents of the parcels. The submission of the Counsel for the appellant, in this regard, appears to be correct. Paras Kumar, SI, stated that the seal after use by him was handed over to ASI Raj Kumar, whereas, the DSP after use of his seal retained the same with him. Why the seal was not handed over to the independent witness, who was joined by the police party, at the time of alleged recovery, is not known. No explanation, in this regard, was furnished by the prosecution witness. 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. On account of this reason also, and in view of the peculiar facts and circumstances of the case, that the poppy husk allegedly recovered was very small, the case of the prosecution became highly doubtful.
9. No doubt, an independent witness namely Sohan Singh was given up by the Additional Public Prosecutor, for the State, as won over vide his statement dated 7.4.1997. There is nothing, on the record, as to on the basis of which information, he came to the conclusion that this witness was not going to support the case of the prosecution. Had any application been moved by the Investigating Officer, containing the reasons, that this witness was not going to support the case of the prosecution, it would have been said, that the decision of the Additional Public Prosecutor for the State, to give up the independent witness, as won over, was correct.
10. In the absence of any material, having been produced, on the record, on the basis whereof this witness was given up as won over, it could be said that the independent witness was not intentionally examined by the prosecution. Had Sohan Singh, PW, been examined, as a witness, and had he not supported the case of the prosecution, then with the permission of the Court, the Additional Public Prosecutor for the State could cross-examine him. Even if, the independent witness, during the course of his cross-examine him. Even if, the independent witness, during the course of his cross-examination, by the Addl. Public Prosecutor had not supported the case of the prosecution, the matter would have been considered, in the light thereof. However, no such method was adopted by the Additional Public Prosecutor for the State. As stated above, even the decision of the public Prosecutor, in giving up Sohan Singh, as won over, was not based on any data of material that he was not going to support the case of the prosecution. Had Sohan Singh been examined in the peculiar facts and circumstances of the case, his evidence would have certainly lent genuineness to the case of the prosecution. No-examination of the independent witness, in view of the peculiar facts and circumstances of the case also proved fatal to the case of the prosecution. On account of this reason, the case of the prosecution became highly doubtful.
11. Davinder Kumar, Constable, in his affidavit Ex.PH testified that he deposited the sample parcel, in the Forensic Science Laboratory. He did not testify that he also deposited the sample seal in the Forensic Science Laboratory. Since the sample seal was not deposited in the Forensic Science Laboratory, it is not known, as to how the certificate was given in report Ex.PK, that the seals, on the sample, tallied with the sample seal. This certificate of the Forensic Science Laboratory, was, thus, wrong. In these circumstances, doubt was cast on the report Ex. PK.
12. For the reasons recorded, herein before, the Appeal is accepted. The judgment of conviction dated 30.7.1997, and the order of sentence dated 31.7.1997, are set aside. The appellant shall stand acquitted of the charge framed again him. He is discharged of the bail bonds.