R.L. Anand, J. (Oral)
1. This is a criminal appeal and has been directed against the judgment and order dated 9.12.1996, passed by the Court of Additional Sessions Judge, Sirsa, who convicted the appellantPawan Kumar under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ` the Act'') and sentenced him to undergo R.I. for a period of 10 years and to pay a fine of Rs. 1 lac; in default of payment of fine, the appellant was directed to further undergo R.I. for a period of two years.
2. Pawan Kumar, appellant, was tried for an offence under section 15 of the Act on the allegation that on 28.6.1992 in the area of Village Mandi Kalanwali, he was found in possession of Poppy Husk weighing 4 quintals and 1 kilogram, contained in 10 bags, each containing 40.100 kilograms of Poppy Husk without any licence or permit and, thereby allegedly committed an offence under the aforesaid section. The allegations of the prosecution are that on 28.6.1992, a secret information was received by PW4 Shri Ishwar Singh, S.I., C.I.A. Staff, Dabwali, that Pawan Kumarappellant was habitual of selling Poppy Husk and on the day of the alleged recovery he was also selling the Poppy Husk in his house and if a raid was conducted immediately, Poppy Husk could be recovered along with the accused. On receipt of this secret information, the said S.I. formed a raiding party and raided the house of the appellant who was also found present in the house. A heap of bags was lying in the southern/western corner of his Baitakh. The S.I. served a notice, Exh. PD, upon the appellant asking him whether he was having Poppy Husk in his possession and whether he wanted his search before any gazetted officer or Magistrate. Accused, vide reply, Exh. PD/1, desired that his search be conducted before a gazetted officer, of the police. Exh. PD and Exh. PD/1 were thumb marked by the appellant and signed by Head Constable Subhash Chander and Constable Om Parkash, who were the members of the raiding party. On the request of the accused, D.S.P. Shri Sukhdev Singh of Dabwali was called on the spot through a wireless message. The said D.S.P. along with his staff came on the spot. On his directions, search of 10 bags was conducted out of which poppy husk was found. The I.O. drew samples of 100 grams of poppy husk from each of the bags and made a sealed parcel thereof. The remaining poppy husk was separately sealed in the bags. All the 10 bags containing poppy husk were sealed with the seal of `SS'' and were taken into possession vide recovery memo Exh. PC, signed by Head Constable Subhash Chander and Constable Om Parkash, which was also attested by Sukhdev Singh, D.S.P. The seal after use was kept by the D.S.P. Thereafter, I.O. sent ruqa Exh. PE to Police Station Kalanwali on the basis of which formal F.I.R., Exh. PE/1 was recorded by A.S.I. Azad Singh. He, then, prepared rough site plan, Exh. PF, of the place of recovery with correct margin notes. He arrested the accused and on return to the Police Station, the case property was deposited with the Moharrir Head Constable of the Police Station and the accused was put behind the bars. The sealed parcels of the samples of Poppy Husk were sent to the office of the Chemical Examiner for analysis, who vide report exh. PG, declared the contents as poppy husk. On the conclusion of the investigation of the case, accused was challaned under section 15 of the Act in the court of the Illaqa Magistrate, who supplied the copies of the documents to the accused and vide commitment order dated 3.9.1993 committed the accused to the court of sessions.
3. Vide order dated 4.11.1993, the learned Addl. Sessions Judge, Sirsa framed charge under section 15 of the Act against the appellant. The charge was read over and explained to the accused to which he pleaded not guilty and claimed a trial.
4. In order to support the charge, the prosecution examined as many as four witnesses including the I.O. and the D.S.P. The prosecution also tendered into evidence affidavits of Head Constable Hans Raj and Constable Bhajan Lal, Exhs. PA and PB, respectively, besides the report of the Chemical Examiner and closed the case.
5. On the closure of the prosecution evidence, statement of the accused was recorded under section 313, Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to him. Accused denied those circumstances and stated as follows :
"I am innocent. Nothing was recovered from me. I had quarrelled with Raju Pardhan and at his instance I was called to Police Station. I was accompanying Mithu Singh and Bhola Singh when I was called in the Police Station by the police and this false case was planted upon me by the police due to enmity with Raju Pardhan at his instance."
6. In defence, accused examined four witnesses; namely, Gulab Singh, Devi Shanker, Bhola Singh and Mithu Ram.
7. The learned trial court believed the prosecution story in its entirety and rejected the defence version and convicted and sentenced the appellant in the manner stated above. Aggrieved by the same, Pawan Kumar has filed the present appeal which I am disposing of with the assistance rendered by Shri S.S. Sidhu, counsel for the appellant and Mr. J.S. Ahlawat, Advocate, appearing on behalf of the respondent.
8. The learned counsel for the appellant has assailed the judgment from different angles and his first contention is that it is the case of the prosecution itself that S.I. Ishwar Singh received a secret information when he was present near the railway crossing in Mandi Kalanwali and in spite of the receipt of the secret information, the S.I. has not associated any independent witness so as to lend credence to his investigation. Refuting the above contention, it was argued by the learned counsel for the respondent that since S.I. Ishwar Singh was in hurry, therefore, he could hardly get any time to associate any independent witness. I am not convinced with the explanation offered by the learned counsel for the respondent. In my opinion, on receipt of the secret information, the I.O. ought to have sent a ruqa to the Police Station against the accused for the registration of the case. He has not done so for the reasons best known to him and the omission on his part compels me to think whether there is a strong and independent corrobation to the story of the prosecution or not. Even the ruqa which was ultimately sent to the Police Station for the registration of the case after the recovery of the poppy husk nowhere indicates that on any point of time after the receipt of the secret information, the I.O. had earlier tried to associate independent witnesses. It was not a case of a chance recovery. Rather, it was a case of prior information and, in these circumstances, the prudence demands that the I.O. ought to have associated some independent witness. He received the secret information in the heart of Mandi Kalanwali and, in these circumstances, he could easily associate some independent witnesses with the voice party. The vital omission committed on the part of the I.O. strengthens the doubt of this court that the recovery has not been effected in the manner as alleged by the prosecution. Even if it is assumed for the sake of arguments that the I.O. had no time to associate an independent witness in Mandi Kalanwali near the railway crossing, then he could associate any respectable person of the locality where the house of the accused is situated so as to lend credence that the recovery of the Poppy Husk has been effected from the Baitakh of the house of the accused. The police party must have remained at the spot for a sufficient long time. The S.I. preferred to invite the D.S.P. and the said D.S.P. even did not take the courtesy to associate any independent witness from the village. All this gives a clear indication that in spite of the fact that there was ample opportunity for the I.O./D.S.P. to associate independent witness, they chose to keep the investigation at their own level. The law is well settled. Stringent the punishment, stringer the proof. The offence under section 15 of the Act has been provided with deterent punishment and the minimum sentence prescribed by law is 10 years which can even go upto 20 years. In such circumstances, a heavy onus has been placed upon the prosecution to lead satisfactory evidence so as to clear all reasonable doubts which might lurk in the mind of the court.
9. The things do not rest here. The learned counsel for the appellant further submits that in this case even the vital link in the shape of formal evidence is missing. As per the report Exh. PG of the Chemical Examiner, the sample was received in the Laboratory on 30.7.1992 through Constable Naresh Kumar. Prosecution has not examined Naresh Kumar either in court nor has it filed his affidavit. In these circumstances, it cannot be ruled out that sanctity of the sample sent to the Laboratory remained intact. In this manner, the vital link with regard to the nontampering of the sample is missing in this case for which the benefit of doubt has to go to the appellant. Above aspects of the case highlighted by me have not been rightly considered by the trial court.
10. In this view of the matter, I accept the appeal and the judgment and order of the trial court is set aside. The appellant shall be released forthwith. Registry is directed to inform the jail authorities about the passing of this order. The case property stands confiscated to the State.
