Sham Sunder, J.@mdashThis appeal is directed against the judgment of conviction dated 15.5.1997, and the order of sentence dated 22.5.1997,
rendered by the Court of Addl. Sessions Judge (1st), Bhiwani, vide which it convicted the accused/appellant Sher Singh, for the offence punishable
u/s 20 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 five years.
2. The facts, in brief, are that on 2.4.1996, Phool Singh, SI, alongwith other police officials, including Jagat Singh, ASI, etc. was present on Dhani
Harsukh turning in the area of Gujrani, when they noticed the accused coming from the side of Dhani Harsukh. On seeing the police party, the
accused turned towards Chang road to avoid his apprehension. Phool Singh, SI, however, apprehended him. He was carrying a bag (thaila), on
his right shoulder, at that time. Search of the bag (thaila), in accordance with the provisions of law, was conducted. It was found containing 650
grams charas. A sample of 50 grams, was separated, and the remaining charas, was put in a separate container. Both the containers were sealed,
with the seal bearing impression ""CM"", and taken into possession vide separate recovery memo. Ruqa was sent to the Police Station, on the basis
whereof, the formal FIR was registered. Rough site plan of the place of recovery, with correct marginal notes, was prepared. The statements of the
witnesses were recorded. The accused was arrested. After the completion of investigation, the accused was challaned.
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 u/s 20 of the Act, was framed against him, to which he
pleaded not guilty and claimed judicial trial.
4. The prosecution, in support of his case, examined Sukhraj Singh, SI (PW-1), Nar Singh, ASI (PW-2), Ved Singh, HC (PW-3), Sunil Kumar,
Constable (PW-4), Rameshwar Kumar, SI (PW-5), Jagat Singh, ASI (PW-6), and Phool Singh, SI (PW-7). Thereafter, the Public Prosecutor
for the State, closed the prosecution evidence.
5. The statement of the accused u/s 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the
prosecution evidence. The accused took the following plea in his statement:
I alongwith some other persons of our village were standing at Hansi gate and were waiting for a bus. It was 4.00 or 4.30 PM. A jeep which
carries passengers on hire, came there. It belonged to a person of Jatu Lohari. The Baba Harhargir of our temple was also standing there at Hansi
Gate. All the passengers boarded the jeep including Babal and then two persons from the police came there. The police took the jeep alongwith
the triver and the passengers to Police Station Sadar. The driver of the jeep was sent by the police during the night time. All others were detained
for the night. One of us was Naresh, whose father succeeded in taking him away. Besides the Baba of our village, there was another Baba. The
other Baba was also released as he said that he was suffering from fever. K.C. Sharma of our village, who is IAS officer gave a ring to the Police
Station and then the Baba was also released by the police. I was detained by the police and I have been challenged. This is the whole story.
He, however, did not lead any evidence, in his defence.
6. 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 hereinbefore.
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 appellant, at the very outset, contended that though the alleged recovery was effected on 2.4.1996, yet the sample was sent
to the office of the Forensic Science Laboratory, Madhuban, on 15.4.1996. He further submitted that no explanation was furnished by the
prosecution witnesses, as to why, the sample was sent to the office of the Forensic Science Laboratory Haryana, Madhuban, after a delay of 13
days. He further submitted that, on account of delay, in sending the sample to the office of the Forensic Science Laboratory Haryana, Madhuban,
the possibility of tampering with the same, could not be ruled out. No explanation, whatsoever, was furnished, as to why, the sample was not sent
to the office of the Forensic Science Laboratory, for about a period of 13 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) RCR (Cri) 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 incomplete. Ultimately, the appellant was acquitted in that case. On account of this infirmity, the appellant is liable to be acquitted.
10. The seal after use was given to Jagat Singh, ASI, who is junior to Phool Singh, SI. Both Phool Singh, SI and Jagat Singh, ASI, at the relevant
time, were posted in the same Police Station. The case property, was for some time remained with Phool Singh, SI, and thereafter, it was
deposited in the malkhana, which was under the control of the said Sub Inspector. Since, there was delay of 13 days, in sending the sample to the
Forensic Science Laboratory, Madhuban, the mere fact that the seal remained in the possession of the Police official, throughout until the sample
was sent to the said laboratory, in itself was sufficient to cast a doubt on the prosecution story, as it could not be safely held that the contents of the
sample parcel, could not be changed. This fact coupled with other infirmities and lacunae pointed out, cast a cloud of doubt on the prosecution
story.
11. It was next contended by the Counsel for the appellant, that no independent witness was joined, despite availability. It is, no doubt, true that
the evidence of the official witnesses, cannot be doubted, merely, on account of the reason, that no independent witness was joined by the
Investigating Officer. However, in peculiar circumstances of the present case, when the accused alleged that he was falsely implicated, in this case,
it can be held that non-joining of an independent witness, despite availability, clearly cast a doubt on the prosecution story. Since, the alleged
recovery was effected, from a public place, and the independent witnesses were present, even at the time, when the accused was allegedly
apprehended, it became the bounden duty of the Investigating Officer, to join one of them, so as to show the genuineness of proceedings. The
prosecution case also becomes doubtful, on this ground.
12. The affidavit Ex.PA, tendered by Ved Singh, MHC, is defective. According to this affidavit on 2.4.1996 Phool Singh, SI, deposited with him
two parcels, sealed with the seal bearing impression ""CM"" and ""RK"", with seals intact. It is further evident from the said affidavit, that the sample
parcel, duly sealed with seal bearing impressions ""CM"" and ""RK"", was handed over to Sunil Kumar, Constable on 15.4.1996, for depositing the
same, to the office of the Forensic Science Laboratory, Madhuban. There is nothing, in the affidavit Ex.PA, that sample impression of the seal was
handed over to Sunil Kumar, Constable, for deposit in the office of the Forensic Science Laboratory, Madhuban. When the sample seal was not
handed over to Sunil Kumar, Constable, for deposit in the office of the Forensic Science Laboratory, Madhuban, it is not known, as to wherefrom
the said specimen seal came in the office of the Forensic Science Laboratory, Madhuban. Under these circumstances, the report of the Forensic
Science Laboratory, Madhuban, to the effect that the seals, on the parcel, tallied with the sample seal, became doubtful. The link, in the chain of
the prosecution evidence was, therefore, incomplete. It was the bounden duty of the prosecution to prove beyond doubt, that none tampered with
the sample, till it reached the office of the Forensic Science Laboratory. In the instant case, the prosecution failed to prove, as to whether, the seals
on the sample, when deposited in the office of the Forensic Science Laboratory, Madhuban, were intact and how the said seals were compared
with the sample seal, which was not sent to this office. In this view of the matter, the case of the prosecution, also became doubtful. The trial Court
did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned.
13. 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, and the same are liable to be set aside.
14. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 15.5.1997, and the order of sentence dated
22.5.1997, are set aside. The appellant shall stand acquitted of the charge framed against him. He is discharged of the bail bonds.