Sham Sunder, J.@mdashThis appeal is directed against the judgment of conviction, and the order of sentence dated 21.08.2000, rendered by the
Court of Addl. Sessions Judge, Bathinda, vide which it convicted the accused/appellant, for the offence, punishable u/s 18 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. l lakh, and in default of payment of the same, to undergo rigorous imprisonment for another period of one year,
for having been found in possession 2 legs. 100 grams of opium, without any permit or licence.
2. The facts, in brief, are that on 15.05.1995, ASI Chhota Ram, accompanied by other police officials, left the Police Station, by a Govt. Jeep for
patrol duty, in the area of villages Sukhladhi, Tarkhan Wala, Bagha etc. and when the Police party reached near village Bagha Balkar Singh, a
public witness, came across it and he was also joined. When the police party reached Tarkhan Wala-Sukhladhi road crossing in the area of said
village Bagha, accused Balbir Kaur was seen coming from the side of village Tarkhan Wala while carrying a bag. However, on seeing the Police
party, she, at once, tried to give a slip by a hasty retreat. On suspicion she was apprehended. ASI Chhota Ram suspected that some contraband
was being carried by her, in the bag, held by her. Accordingly the search of the bag was conducted, in accordance with the provisions of law, in
the presence of Jatinder Singh Aulakh, S.P.(H) and Satish Kumar Asthana, IPS, as a result whereof 2 kgs. and 100 grams opium, was recovered
therefrom. A sample of 10 grams was taken out. The sample, and the remaining opium in a packet were converted into parcels, duly sealed, and
taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. The
accused was arrested. After the completion of investigation, the accused was challaned.
3. On her appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge u/s 18 of the
Act, was framed against her, to which she pleaded not guilty, and claimed trial.
4. The prosecution, in support of its case, examined Surjit Singh, SHO Police Station Raman, PW1, who produced the case property as well as
the accused before the Judicial Magistrate 1st Class, Talwandi Sabo on the next day and also sent the sample to the Chemical Examiner, Patiala,
Constable Bikkar Singh, PW2, who tendered his affidavit Ex.PE ASI Chhota Ram, PW3, the Investigating Officer of the case, and Jatinder Singh
Aulakh, at that time Superintendent of Police (Headquarter) PW4, a witness to the recovery. Thereafter, the Additional Public Prosecutor for the
State, closed the prosecution evidence.
5. The statement of the accused u/s 313 Cr. P.C. was recorded, and she was put all the incriminating circumstances, appearing against her, in the
prosecution evidence. She pleaded false implication. It was stated by her, that on 13.05.1996, she accompanied by Parveen Kaur, her husband''s
brother''s daughter was coming from Hanumangarh by bus and when their bus reached at Sangat road crossing some police officials stopped the
bus. She further stated that thereafter the police started checking the same. In the process of checking of the bus, a police official tried to
misbehave with her, which led to dispute, between her, and some police officials It was further stated by her that she along with said Parveen Kaur
was taken to Police Station Sangat. On the next day, her husband also reached there and met the SHO, Police Station Sangat, to get them
released. She further stated that though the police released Parveen Kaur, yet it involved her, in this false case. She further stated that, in this
respect her husband also filed an application through Counsel before the Ilaqa Magistrate. She also examined Sukhwant Singh, ASI, DW1, AS1
Malkeet Singh DW2, Surjit Singh, DW3 and Parveen Kaur, DW4, in her defence. Thereafter she closed her defence evidence.
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 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
appellant.
8. I have heard the learned 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, submitted that Balkar Singh, independent witness, was joined by the Investigating Officer, at
the time of the alleged recovery, yet he was not examined. He further submitted that non-examination of Balkar Singh clearly revealed that the
prosecution withheld the best evidence, in its possession. He further submitted that an adverse inference could be drawn that had he been
examined, he would have not supported the case of the prosecution. He further submitted that the examination of Balkar Singh, independent
witness, in view of the defence, taken up by the accused, that she was falsely implicated, on account of the reason, that the police officials
misbehaved with her during the process of checking of the bus, was essential to reveal the truth. No doubt, the Additional Public Prosecutor for
the State gave up Balkar Singh, independent witness, as won over by the accused. However, there is nothing, on the record, as to on the basis of
which material or data, the Additional Public Prosecutor, came to the conclusion, that this witness had been won over by the accused and,
therefore if examined he would damage the case of the prosecution. It is, no doubt, true that the Additional Public Prosecutor for the State is the
master of the case. It is for him to decide, as to which witness, he wants to examine and which witness he does not want to examine. However, he
is required to exercise such a discretion, in a bona fide manner, and not in an arbitrary and capricious manner. Since, in this case, the independent
witness was given up, as won over by the accused, without any material or data, or without any application of the police, it could be said that the
discretion was exercised by the Additional Public Prosecutor, for the State, in an arbitrary and capricious manner. The evidence of Balkar Singh,
independent witness, was very much essential, to reveal the truth, especially in view of the defence set up by the accused, who is a lady, regarding
misbehaviour with her, by the police officials, resulting into her false implication. The prosecution, thus, withheld the best evidence in its possession.
In State of Punjab v. Nachhattur Singh @ Banla, 2007 (4) CCC 364 (P&H) (DB) : 2007 (3) RCR(Cri) 1040, a case decided by a Division
Bench of this Court, an independent witness was joined, but was not examined. In these circumstances, it was held that the case of the prosecution
became doubtful. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the present case. Non-examination of
Balkar Singh, independent witness by the prosecution, without any valid reason, made its case highly doubtful. The submission of the Counsel for
the appellant, in this regard, being correct is accepted.
10. It was next submitted by the Counsel for the appellant, that the link evidence, in this case, was completely missing. He further submitted that
Surjit Singh, PW1, the then SHO, before whom the case property was allegedly produced stated that he did not deposit the same, in the judicial
Malkhana, for want of space. He further stated that on 24.05.1995 he sent the sample parcel to the office of the Chemical Examiner, Patiala,
through Constable Bikker Singh. This statement of Surjit Singh, retired Inspector, PW1 is, however, belied by Ex.D2, copy of the entry, in register
No. 19 of the Police Station. It is evident from this document, that the case property and the sample parcel were deposited with the MHC in the
Malkhana. Surjit Singh, PW1, admitted, during the course of cross-examination that the key of the Malkhana remained with the Head Constable.
Since as per entry D2, the case property was deposited in the Malkhana, and key thereof remained with the Head Constable, it could not be said
that the case property and the sample parcel remained with the SHO, until the same (sample) was sent to the office of the Chemical Examiner.
How the sample parcel was taken out of the Malkhana, by him, is not known. There is no evidence, on the record, as to who handed over the
sample parcel to him for further sending the same to the office of the Chemical Examiner. Had the case property and the sample parcel remained
with him, and had he not deposited the same, in the Malkhana, the matter would have been different. Under these circumstances, the link evidence
was incomplete, in this case. It is incumbent upon the prosecution to prove beyond a reasonable doubt that there was no possibility of tampering
with the sample parcel, at any point of time, until it reached the office of the Chemical Examiner. If the prosecution fails to do so, then the link
evidence becomes incomplete. In State of Rajasthan v. Daulat Ram 1980 SCC (Crl) 683, the prosecution failed to prove beyond a reasonable
doubt, all the links starting from seizure. It was held that the possibility of sample parcel being changed or tampered with, during the period it
changed several hands till its reaching the Public Analyst, could not be ruled out. The prosecution thus, miserably failed to prove the completion of
link evidence in the instant case.
11. The next limb of argument of the Counsel for the appellant, regarding the non-completion of link evidence was to the effect, that though the
alleged recovery was effected, on 15.05.1995, yet the sample parcel was sent to the Chemical Examiner on 24.05.1995. He further submitted that
delay of 9 days in sending the sample was not explained, and, as such, the possibility of tampering with the same, could not be ruled out. The
submission of the Counsel for he appellant, in this regard, appears to be correct. It is, no doubt, true that mere delay in sending the sample parcel
to the office of the Chemical Examiner, in itself, is not sufficient to come to the conclusion that the sample parcel was tampered with, at any point of
time. In such a situation, the Court is required to fall back, on the other evidence, produced by the prosecution. If after perusal of the other
evidence, the Court comes to the conclusion, that there was no possibility of tampering with the sample parcel, until it reached the office of the
Chemical Examiner, then the same can be believed. In the instant case, as stated above, the prosecution miserably failed to prove the completion
of link evidence. The other evidence produced by the prosecution, therefore, could be said to be not only deficient but also unreliable. In this
background, the Court is to see, as to whether, the possibility of tampering with the sample parcel until it reached the office of the Chemical
Examiner could be ruled out, or not. In Gian Singh v. State of Punjab 2006 (3) CCC 480 (P&H) : 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. In State of
Rajasthan v. Gurmail Singh 2005 ACJ 468 (S.C.) : 2005 (2) CCC 59 (S.C.) : 2005 (2) RCR (Cri) 58 (SC), the contraband remained in the
Malkhana for 15 days. The Malkhana register was not produced, to prove that it was so kept in the Malkhana, till the sample was handed over to
the Constable. In these circumstances, in the aforesaid case, the appellant was acquitted. In Ramji Singh v. State of Haryana 2007 (3) CCC 955
(PAH) : 2007 (3) RCR (Cri) 452, the sample was sent to the office of the Chemical Examiner after 72 hours, the seal remained with the police
official, and had not been handed over to any independent witness. Under these circumstances, it was held that this circumstance would prove fatal
to the case of the prosecution. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the sample, till
it reached the office of the Chemical Examiner. The other evidence produced by the prosecution, in this case, to prove the link evidence, as held
above, is not only deficient, but also unreliable. In these circumstances, the principle of law, laid down, in the aforesaid authorities, is fully
applicable to the facts of the present case. The delay of 9 days, in sending the sample to the office of the Chemical Examiner, and non-strict proof,
by the prosecution, that the same was not tampered with, till it was deposited in that office, must prove fatal to the case of the prosecution, as the
possibility of tampering with the same, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is
accepted.
12. The next limb of argument of the Counsel for the appellant, regarding the non-completion of link evidence, was to the effect, that no specimen
impression of the seal, was deposited, in the Malkhana and as such, the question of handing over the same to Bikker Singh, Constable, did not
arise. The submission of the Counsel for the appellant, in this regard appears to be correct. Ex.D2, copy of the entry of Malkhana register does not
show that the sample impression of the seal, was deposited therein. Since the documentary evidence belies the deposit of the sample impression of
the seal, where from it was handed over to Constable Bikker Singh, for deposit thereof, in the office of the Chemical Examiner, along with the
sample parcel is not known. It, therefore, can be said that the sample impression of the seal was never deposited with the Chemical Examiner. In
these circumstances, the Chemical Examiner was deprived of ascertaining as to whether the seals affixed on the sample parcel, at the time of
alleged recovery, tallied with the specimen impression of the seals. The other evidence produced by the prosecution to prove its link evidence has
already been held to be deficient and unreliable. In State of Rajasthan''s case (supra), the sample impression of the seal was not sent to the
Laboratory for the comparison of the seals, on the sample. It was held that, therefore, there was no evidence to prove satisfactorily that the seals
found were, in fact the same, as were affixed on the sample parcel immediately after seizure of the contraband. The principle of law laid down in
State of Rajasthan''s case (supra) if fully applicable to the facts of the instant case. On account of this reason, the case of the prosecution also
became doubtful.
13. It was next submitted by the Counsel for the appellant, that the defence version set up by the accused, was more probable, than the
prosecution version, but the trial Court failed to take into consideration the same, as a result whereof it fell into a grave error, in recording
conviction, and awarding sentence to the accused. The submission of the Counsel for the appellant, appears to be correct. A specific stand was
taken up by the accused in her statement u/s 313 Cr.P.C. that, in the bus, in which she along with Parveen Kaur, her husbands'' brother''s daughter
was traveling on 13.05.1996, during the process of checking thereof, by the police officials of Police Station Sangat, they misbehaved with her, as
a result whereof, a dispute arose. She further stated that she along with Parveen Kaur was taken to the Police Station and when her husband came
to know of all this, he went to the Police Station, for the purpose of their release. She was not released but Parveen Kaur was released and,
ultimately, on 15.05.1995, this false case was registered against her. This version of the accused was duly supported by Parveen Kaur, DW4, in
all material particulars and Surjit Singh, DW3, at the relevant time a Clerk with Shri K.S. Bhullar, Advocate, District Court, Bathinda. Normally, a
lady, in the Indian society would not come up with such an allegation. However, when she is compelled by the circumstances, then she can muster
courage to bring to the notice of the entire world, that a particular person misbehaved with her. Had the police officials not misbehaved with the
accused, she would have been the last lady to make such an allegation against them. The witness, in whose presence, the police officials
misbehaved with the accused, supported her version, while appearing as DW4. Not only this, even an application was given by Mr. K.S. BhulIar,
Advocate on 15.05.1995 at 11.45 A.M. against the police of Police Station Sangat.Ex.D4 is the copy of that application. In this application it was
stated that when Balbir Kaur and Parveen Kaur were traveling in a bus on 13.05.1996, the police of Police Station Sangat conducted search
thereof. It was further stated that during the course of search it used filthy language against Balbir Kaur and Parveen and on their intervention, the
police felt annoyed with them. Thereafter they took them into custody forcibly. The instant case was registered against the accused at about 3.15
P.M. on 15.05.1995. Ruqa was sent at 2.30 P.M. It means that the alleged recovery was shown against the accused, after moving of application
dated 15.05.1995 at 11.45 A.M. by Mr. K.S. Bhullar, Advocate, detailing therein the misbehaviour of the police officials of Police Station Sangat
with her (accused). Mr. K.S. Bhullar could not make such an application, before the registration of the case, had actual incident, as detailed
therein, not taken place. The defence version duly corroborated by the defence evidence, produced by the accused, was more probable, than the
prosecution story. The accused is not required to prove the same beyond a reasonable doubt. She was only required to probalise her defence. As
stated above, defence evidence in this case was more probable than the prosecution version. The trial Court was required to act upon the same. It
had failed to do so wrongly. Once the defence version is held to be more probable than the prosecution version, the accused is entitled to acquittal.
The submission of the Counsel for the appellant, in this regard, appears to be correct and stands accepted.
14. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the Court below, are not
based on the correct appreciation of evidence, and law, on the point. The trial Court did not take into consideration, the infirmities and lacunae,
enumerated, in the aforesaid paragraphs. Had these infirmities and lacunae, been taken into consideration, by the trial Court, the result would have
been different. The judgment of conviction, and the order of sentence, warrant interference, and are liable to be set aside.
15. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction and the order of sentence dated 21.08.2000, are
set aside. The appellant shall stand acquitted of the charge framed against her. If, she is on bail, she shall stand discharged of her bail bonds. If, she
is in custody, she shall be set at liberty at once, if not required in any other case.