ORDER
M.S.A. Siddiqui, J.
1.
This appeal is directed against the judgment and order dated 10.8.1993 passed by the Additional Sessions Judge, Delhi in Sessions Case No.500/93 convicting the appellant under Section 18 of the Narcotic Drugs and Psychotropic 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 default to suffer further rigorous imprisonment for two years.
2. Briefly stated, the prosecution case is that on 10.6.1990, a police party, led by Sub-Inspector Brijendra (PW-8), upon information received, apprehended the appellant at Khas Road. The appellant was found holding a bag in his hand. He was given the option (Ex.PW-5/A) of being searched by Sub-Inspector Brijender (PW-8) before a Gazetted Officer or a Magistrate. The appellant declined the offer. He was then searched in the presence of the Vijay Kumar (PW-5), Inspector O.P. Sharma (PW-6) and SI Sehdev Singh (PW-7) and the bag he was carrying was found to contain 1.200 kilograms of opium. The appellant was charged with an offence punishable under Section 18 of the Act and tried.
3. The appellant abjured his guilt and alleged that a false case has been foisted on him. The evidence of the prosecution was accepted and the appellant was convicted and sentenced as indicated above. The point for determination in this appeal is whether on 10.6.90, the contraband opium was recovered from the appellant’s possession in accordance with the provisions of Section 50 of the Act. It is significant to mention that keeping in view the severity of the punishment provided under the Act, Courts dealing with the offences under the Act should be very careful to see that it is established to their satisfaction that the contraband was recovered from the possession of an accused in accordance with the provisions of Section 50 of the Act.
4. The evidence of the prosecution pertaining to the recovery of the contraband revolves around the testimony of Vijay Kumar (PW-5), Inspector O.P. Sharma (PW-6), SI Sehdev Singh (PW-7) and SI Brijender (PW-8). In has come in the evidence of Sub-Inspector Brijender (PW-8) that on 10.6.96, he received a secret information that a person with opium in his possession is on way from Mot Road to Jama Masjid via Khas Road and the said information was recorded in the daily diary (Ex.PW-2/A). The SHI, P.S. Kotwali was also informed in writing (Ex.PW-8/A) and a raiding party was organized. At about 2.40 P.M., SHO O.P. Sharma (PW-6) also come to the spot and joined the raiding party. At about 2.55. P.M., the appellant was apprehended at the Khas Road. He was given the option of (Ex.PW-5/A) of being searched by Sub-Inspector Brijender (PW-8) before a Gazetted Officer or a Magistrate but the appellant declined the said offer. Thereafter, he took search of the appellant and recovered 1.200 Kilograms of opium. From the appellant’s possession vide seizure memo (Ex.PW-5/B). A sample of 200 grams of the contraband opium was drawn. The sample as well as the remaining opium were converted into separate parcels and they were duly sealed on the spot. CFSL form was also duly filled up. After completing the said formalities, he sent the rukka (Ex. PW-3/A) to the police station on the basis of which FIR (Ex. PW-3/B) was registered at the police station Kotwali. It has also come in the evidence of SI Brijender (PW-8) that the sealed parcels along with the CFSL form were handed over to SHO O.P. Sharma (PW-6) for being deposited in the Mal Khana. Panch witness Vijay Kumar (PW-5), SHO O.P. Sharma (PW-6) and Sub-Inspector Sehdev Singh (PW-7) have supported the testimony of Sub-Inspector Brijender (PW-8).
5. It needs to be highlighted that the rukka (Ex.PW-3/) prepared by Sub-Inspector Brijender (PW-8) on the spot, reveals that the alleged recovery of the contraband was made at 2 P.M. and the rukka was sent to the police station at 4.30 P.M. The FIR (Ex.PW-3/B) shows that it was registered at 4.35 P.M. Surprisingly, the intimation (Ex.PW-/A) sent to the SHO O.P. Sharma (PW-6) containing the secret information received by the Sub-Inspector Brijender (PW-8), notice under Section 50 of the Act (Ex.PW-5/A) alleged to have been served on the appellant before taking his search. The seizure memo (Ex.PW-5/B) and the appellant’s search memo (Ex.PW-5/C) bear the number of the FIR (Ex.PW-3/B). The number of the FIR (Ex.PW-3/B) given on the top of the aforesaid documents is in the same ink and in the sae handwriting, which clearly, indicates that these documents were prepared at the same time. The prosecution has not received any explanation whatsoever as to under what circumstances number of the FIR (Ex.PW-3/B) had appeared on the top of the aforesaid documents.
6. This gives rise to two inferences that either the FIR (Ex.PW-3/B) was registered prior to the receipt of the secret information and alleged recovery of the contraband or number of the FIR was inserted in these document after its registration. In both the situations, is seriously reflects upon the veracity of the prosecution version given by Vijay Kumar (PW-5), Inspector O.P. Sharma (PW-6), SI Sehdev Singh (PW-7) and SI Brijender (PW-8) and creates a good deal of doubt about-recovery of the contraband in the manner alleged by the prosecution. Thus the benefit arising out of such a situation must necessarily go to the appellant.
7. Although SHO O.P. Sharma (PW-6) and Head Constable (PW-1) deposed that on 10.6.90, the case property was deposited in the Mal Khana, but they have no where stated that CFSL form was also deposited along with the contraband articles. In the entry (Ex.PW-1/A) proved from the Mal Khana Register, there is no mention that the CFSL form was also deposited along with the sealed packets. Thus, in the instant case, there is not an iota of evidence to show as to where the CFSL form containing the specimen seals had remained till the sampled contraband was dispatched to the CFSL, Chandigarh. Thus, there is absolutely no link between the seizure with all the safe-guards against tampering of the contraband articles till the sample was sent for Chemical analysis. 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 the accused. It must be borne in mind that severer the punishment, the greater care has to be taken to see all the safeguards provided in a statute are scrupulously followed. 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 in law.
8. In the result, the appeal is allowed . The judgment and the order of conviction and sentence is set aside and the appellant is acquitted of the offence charged under Section 18 of the Act. The appellant is in custody, he be set at liberty immediately, if not wanted in any other cause. Fine if paid shall be refunded to the appellant.