JUDGMENT
Sham Sunder, J.
1. This appeal is directed against the judgment of conviction and the order of sentence dated 08.08.1995, rendered by the Court of Additional Sessions Judge, Sangrur, vide which it convicted the accused/appellant Mewa 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 of ten 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 six months.
2. The facts, in brief, are that on 26.08.1993, ASI Swaranjit Singh along with other police officials, was going from Village Kaheru to Village Bamal, in connection with general patrol duty and when they reached near the bridge of canal, in the area of village Kaheru, the accused, who was having a gunny bag, on his head, was seen taking a turn. The action of the accused, arose suspicion in the mind of Swaranjit Singh, ASI, ASI, Swaranjit Singh, after establishing the identity of the accused, apprehended him and recovered poppy husk, from the bag, which he was carrying on his head. Out of the recovered poppy husk, two samples weighing 250 grams each, were drawn and the remaining poppy husk, on weighment, came to be 34.500 grams, and was kept in the same bag. The samples and the bag containing the remaining poppy-husk, were sealed with the seal bearing impression “SS”, and were taken into possession, vide recovery memo, prepared at the spot. Inventory of the case property was also prepared. The site plan of the place of recovery, was also prepared. The accused was arrested. On reaching the Police Station, the entire case property was deposited with the Station House Officer, on the same date, in intact condition. The samples were sent to the Chemical Examiner for test. After the completion of investigation, the challan was prepared.
3. On his appearance, in the Court of the Committing Magistrate,
the copies of documents, relied upon by the prosecution, were supplied to the accused. After the case was received by commitment, in the Court of Sessions, charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty and claimed trial.
4. The prosecution, in support of its case, examined Swaranjit Singh, ASI (PW-1), Malkiat Singh, HC (PW2) Gurbax Singh, SI (PW3) and Pritpal HC (PW-4), who tendered his affidavit Ex.PG. However, Jagmohan Singh, Constable and ASI Baldev Singh were given up as unnecessary. Thereafter, the Addl. P.P. for the State, tendered into evidence report of the Chemical Examiner Ex.PF 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.
6. After hearing the Addl. 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.
7. 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.
8. I have heard the counsel for the parties, and have gone through the evidence and record of the case, carefully.
9. The Counsel for the accused/appellant, at the very outset, contended that though the alleged recovery was effected from the accused, when he was going on a thoroughfare, and a number of independent witnesses were available, yet none of them was joined. He further submitted that, on account of non-joining of an independent witnesses, at the time of the alleged recovery, despite availability, a doubt was cast on the prosecution story. It is not doubt true, that the evidence of the official witnesses, cannot be disbelieved and distrusted, in each and every case, merely on account of non-joining of an independent witness. However, when it is established, from the evidence, on record, that despite availability of independent witnesses, none was joined, then certainly an element of doubt, is cast on the prosecution story, especially when the alleged recovery is of small quantity of poppy husk. ASI Swaranjit Singh who is the Investigating Officer when appeared in the witnesses box as, PW1, no doubt stated in his cross-examination, that efforts were made to join an independent witness, at the time of arrest of the accused, but none was willing to join the proceedings, and no action on their refusal to do so, was taken. On the other hand, Malkiat Singh, when appeared in the witness box as PW2, stated that he remained at the spot for about 5 hours but no independent witness was ready to join the investigation, though the recovery was effected, from a thoroughfare. In the ruqa, sent to the police station, after the alleged recovery, had been effected, it was not mentioned that an effort was made to join an independent witnesses, but none was ready to joint the police party. No other document was prepared by the Investigating Officer, at the spot, which could reveal that an effort was made to join an independent witness. Under these circumstances, the statement of Swaranjit Singh, ASI, that an effort was made to join an independent witness, especially when this fact has been contradicted by Malkiat Singh, PW2, recovery witness, cannot be treated to be correct. Had an independent witnesses been joined and examined, his evidence would have furnished corroboration to the evidence of the Official witnesses. The explanation furnished by Swaranjit Singh, ASI, PW1, that an effort was made to join an independent witness, casts a doubt on the prosecution case. The submission of the Counsel for the appellant, to this extent, is accepted.
10. It was next contended by the Counsel for the appellant-accused that the possibility of tampering with the sample, until the same reached the office of the Chemical examiner could not be ruled out, as the seal after use was handed over to Malkiat Singh, Head Constable, PW2, and that he (Malkiat Singh, HC) returned the same to him (Swaranjit Singh ASI) on the next day. PW1 Swaranjit Singh, ASI, stated that the seal after use was handed over to Malkiat Singh, PW2. However, during the course of cross-examination, Swaranjit Singh, ASI stated that the seal was handed over to him by Malkiat Singh, HC, PW2, on the next day of recovery. The case property remained in the Police Station upto 29.08.1993. During this period he could change the contents of the bag, and the sample parcels. In Rajesh Jagdamba Avasthi v. State of Goa 2005(1) R.C.R. (Criminal) 406, charas was recovered from the possession of the accused and sealed in two packets. The packets and the seal remained in the custody of the same person. In these circumstances, it was held that there was every possibility of the seized substance, being tampered with. The conviction of the accused was set aside, inter-alia, on this ground. Since the possibility of tampering with the case property could not be ruled out, in the instant case, a serious doubt, on account of this reason, was cast on the prosecution case.
11. The counsel for the appellant-accused, further contended that serious discrepancies and omissions, occurred in the statements of the official witnesses, examined in this case, which remained unexplained. He further contended that, in the absence of joining of an independent witness, in this case, despite availability, these discrepancies cast a shadow of doubt, on the prosecution story. According to Swaranjit Singh, ASI, PW-1, an effort was made to join an independent witness, at the time of arrest of the accused, but none was willing to join the proceeding and no action was taken against them, on their refusal. On the other hand, Malkiat Singh, PW2, recovery witness, stated that the police party remained at the spot for about five hours, and no independent witness, was joined, in the police party, during this period. He did not state that efforts were made to join an independent witness, but he was not ready to join the same. According to PW1, Swaranjit Singh, ASI, the seal which was handed over by him, to Malkiat Singh, Head Constable, was returned to him, on the next day of recovery, whereas, Malkiat Singh, PW2, stated that the seal was returned by him to ASI Swaranjit Singh, PW1, in the evening, on the same day i.e. the date of recovery. ASI Swaranjit Singh, PW1, stated that signatory slips of the samples, were prepared. However, Malkiat Singh, HC, PW2, did not state even a single word, as to whether, the signatory slips of the sample were prepared. According to ASI Swaranjit Singh, PW1, on reaching the Police Station, he produced the case property with seals intact before ASI Gurbax Singh, along with the accused, and witnesses, who were interrogated by him. On the other hand, Malkiat Singh, Head Constable, PW2, did not state even a single word, that the case property, the accused and the witnesses were produced before the SHO, on return to the police station, and that they were interrogated by him. No explanation, whatsoever, was furnished by the prosecution witnesses, with regard to the occurrence of the discrepancies and omissions aforesaid. This goes to show that either one of the witnesses, was not present, at the time of the alleged recovery, or the alleged recovery was not effected, in the manner, deposed to by them. The cumulative effect of these unexplained discrepancies, and omissions, in the statements of the prosecution witnesses, especially, in the light of non-joining of an independent witness, despite availability, is that the case of the prosecution becomes doubtful.
12. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are not based, on the correct appreciation evidence, and law, on the point. The trial Court failed to take into consideration the factum that the possibility of tampering with the case property, could not be ruled out; that no independent witness, was joined despite availability, and that the discrepancies and omissions occurred in the statements of the official witnesses, which remained unexplained. Had the Trial Court, properly appreciated the evidence, keeping in view the aforesaid factors, the result would have been different.
For the reasons recorded, herein before, the appeals is accepted. The judgment of conviction and the order of sentence dated 08.08.1995, are set aside. The appellant shall stand acquitted of the charge framed against him. He is discharged of the bail bonds.