Harbans Lal, J.@mdashThis appeal is directed against the judgment dated 30th January, 2004/order of sentence dated 31st March, 2004
rendered by the Court of learned Additional Sessions Judge (II), Bhiwani, whereby she convicted and sentenced the accused to undergo rigorous
imprisonment for a period of ten years and to pay a fine of Rs. One lac, and in default of payment of fine, to further undergo rigorous imprisonment
for a period of one year, u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity `the Act'').
2. Shorn of all unnecessary details, the facts of the prosecution case are that on 17th November, 202, ASI Subhash Chander among other police
officials happended to be present in the area of Jhhupa Chowk for nakabandi. In the meantime, a car (Maruti) bearing registration No. DL-3CE-
3087 being driven by Amarjit Singh-accused, came from Rajgarh side. One other person was also sitting with him. On being given a signal to stop
the car by the aforesaid ASI, the accused turned back the car. The person who was seated with him took to heels from the car. Amarjit Singh was
apprehended. On checking the car, two bags were recovered from the rear seat whereas 3 bags were found in the dickey of the car. The same
were suspected containing some contraband. Notice Ex.PB was served upon the accused to the effect that the bags were suspected to contain
some contraband and he should tell as to whether he wanted search of the same to be carried out in the presence of a Gazetted Officer or a
Magistrate. Vide his reply Ex.PB/1, he expressed his desire to be searched in the presence of a Gazetted Officer. On receipt of the wireless
message, DSP Ram Kumar came at the spot. On his direction, the bags were searched. The same were found containing poppy straw. 100 grams
of poppy straw was drawn from each bag to serve as sample and converted into parcels. The residue of each bag, when weighed came to 39 kgs.
800 grams. The same was also made into parcels. All the parcels were sealed with seals `SC'' and `RK'' and taken into possession vide recovery
memo Ex.PA. The car alongwith its registration certificate was also seized vide the same memo. The seal `SC'' after use was handed over to HC
Om Parkash. The seal `RK'' was kept by the said DSP. Ruqa Ex.PC was sent to the police station. On its basis, formal FIR was registered. The
rough site plan, showing the place of recovery, was prepared. The witnesses, the accused and the case property alongwith the report Ex.PF u/s 57
of the Act were produced before the SHO, Police Station Siwani, who after verification, affixed his, own seal `RS''. On his direction, the case
property was deposited with MHC of the Police Station. On receipt of the Forensic Science Laboratory''s report and after completion of the
investigation, charge-sheet was laid in the Court for trial of the accused.
3. The accused was charged u/s 15 of the Act, to which he did not plead guilty and claimed trial.
4. In order to substantiate its allegations, the prosecution has examined PW1, DSP Ram Kumar, PW2 SI/SHO Om Parkash, PW3 ASI Subhash
Chander, Investigator, PW4 Sikandar alias Kala, PW5 SI Raghbir Singh, PW6 Constable Himmat Singh, PW7 HC Ram Phal and closed its
evidence by tendering into evidence the Forensic Science Laboratory''s report Ex.PH.
5. When examined u/s 313 Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and
pleaded innocence as well as false implication. He did not lead any evidence in defence.
6. After hearing the learned Public Prosecutor for the State, learned defence counsel and examining the evidence on the record, the learned trial
Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he preferred this appeal.
7. I have heard the learned counsel for the parties and perused the record with due care and circumspection.
8. Mr. Jitender Dhanda, Advocate appearing on behalf of the appellant argued that the recovery is alleged to have been effected on 17th
November, 2002 whereas the sample parcel was received in the Forensic Science Laboratory on 18th December, 2002 i.e. obviously after more
than one month, whereas according to the standing instruction No. 1/88 dated 15th March, 1988 of the Narcotic Control Bureau, New Delhi, the
sample should be sent for chemical analysis within 72 hours. He further maintained that no CFSL form was prepared at the spot nor deposited in
the malkhana. As is borne out from the prosecution evidence, the seal after use remained with the police officials. These circumstances are
cumulatively fatal to the prosecution case.
9. Mr. Tarunveer Vashist, Additional Advocate General, Haryana on behalf of the State contended that as per FSL report Ex.PH, the seals on the
sample parcels tallied with the sample seals, which obviously, rules out the possibility of tempering with the contents of the sample parcel. I am
unable to subscribe myself to this submission.
10. In re: Buta Singh v. State of Punjab, 2006 (1) RCR(Crl.) 835, as many as 18 bags of poppy husk were recovered. The prosecution had failed
to explain the delay of 8 days in despatch of the sample to the FSL for chemical analysis. It was held that such a delay is also violative of the
standing instruction No. 1/88 dated 15th March, 1988 of the Narcotic Control Bureau, New Delhi, where the seal remained with the police after
use and the CFSL form was neither prepared on the spot nor deposited in the malkhana, such circumstance would be fatal to the prosecution
case. Filling of such form on the spot is a very valuable safeguard to ensure that the sealed sample is not tempered with till its analysis by the FSL.
11. Adverting to the facts of the instant case, as shall appear in the cross- examination of ASI Subhash Chander PW3, Investigator the seal `SC''
was returned to him after 8-10 days, that is obviously before sending the sample parcel to the FSL. There is unexplained delay of one month in the
despatch of the sample parcel to the FSL for chemical examination. Still worse, CFSL form was not prepared at the spot nor deposited in the
maikhana. The seal after use remained with the police officials. These circumstances are fatal to the prosecution case.
12. As testified by Sikandar alias Kala PW4, he was the owner of the Maruti car bearing registration No. DL-3CE-3087. It implies that the
accused is not the owner of the same. It is in the cross-examination of ASI Subhash Chander (sic) that ""the person, who was sitting with the driver,
namely, Golu had fled away from the spot from a distance of 20 yards. We did not try to apprehend Golu as we were busy in apprehending the
car. No driving licence of accused Amarjit Singh was taken into possession."" It is axiomatic that he has not given any explanation for not chasing
Golu. In re: Avtar Singh and others v. State of Punjab, 2002 (4) RCR (Crl.) 180 (SC), as many as 16 bags of poppy husk were recovered from a
truck. Two accused were sitting on the bags and one accused was driving the truck. The Apex Court held as under:
...The word `possession'' no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not
always go together by the minimum requisite element which has to be satisfied in custody or control over the goods. Can it be said, on the basis of
the evidence available on record, that the three appellants one of whom was driving the vehicle and other two sitting on the bags, were having such
custody or control ? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from evidence that the appellants were not the
only occupants of the vehicle. One of the person who was sitting in the cabin and another person sitting at the back of the truck made themselves
scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of
goods whether or not he was the proprietor. The persons, who were merely sitting on the bags, in the absence of proof of anything more, cannot
be presumed to be in possession of the goods. For instance, if they are labourers engaged merely for loading and unloading purposes and there is
nothing to show that the goods were at least in their temporary custody, conviction u/s 15 may not be warranted. At best, they may be abettors,
but, there is no such charge here. True, their silence and failure to explain the circumstances in which they were traveling in the vehicle at the odd
hours, is one strong circumstance that can be put against them. A case of drawing presumption u/s 114 of the Evidence Act could perhaps be
made out then to prove the possession of the accused but, the fact remains that in the course of examination u/s 313 Cr.P.C. not even a question
was asked that they were the persons in possession of poppy husk placed in the vehicle. The only question put to them was that as per the
prosecution evidence, they were sitting on the bags of poppy husk. Strangely enough, even the driver was questioned on the same lines. The object
of examination u/s 313, it is well known, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against
him. It is unfortunate that no question was asked about the possession of goods. Having regard to the charge of which appellants were accused,
the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this state of things, it is not proper to raise a
presumption u/s 114 of Evidence Act, nor is it safe to conclude that the prosecution established beyond reasonable doubt that the appellants were
in possession of poppy husk which was being carried by the vehicle. The High Court resorted to the presumption u/s 35 which relates to culpable
state of mind, without considering the aspect of possession. The trial Court invoked the presumption u/s 54 of the Act without addressing itself to
the question of possession. The approach of both the courts is erroneous in law. Both the courts rested their conclusion on the fact that the
accused failed to give satisfactory explanation for travelling in the vehicle containing poppy husk at an odd hour. But, the other relevant aspects
pointed out above were neither adverted to nor taken into account by the trial Court and the High Court.
13. In re: Raj Kumar v. State of Punjab, Hawa Singh v. State of Punjab, 2005 (1) RCR(Crl.) 70, the opium lying in between both the accused on
the seat of the jeep was recovered. When examined u/s 313 of Cr.P.C. it was not put either accused that he was in conscious possession of
opium. It was held by the Division Bench of this Court that neither the presumption u/s 35 nor u/s 54 of the Act would be attracted and the
prosecution has failed to prove, who was in conscious possession. The conviction was set aside.
14. Coming to the instant case, a careful perusal of the statutory statement of the accused would reveal that it has not been put to him that he was
in possession of the poppy husk bags. It is only put to him that ""notice Ex.PB was served upon you to the effect that he (ASI Subhash Chander)
has doubt that there is some contraband in the bags."" In view of the afore-extracted observations, it was required to be put to the accused that he
was the person in possession of poppy husk placed in the vehicle. The failure to elicit answer of the accused on the crucial aspect of possession, it
is very difficult to conclude that the prosecution has established beyond reasonable doubt that he was in possession of the poppy husk bags. He
being the driver of the vehicle has also not been charged alternatively for transporting the offensive goods without any permit or authorisation as
required by law. In such circumstances, the presumption of culpable state of mind arising under Sections 34 or 54 of the Act cannot be drawn
against the accused.
15. It is in the cross-examination of ASI Subhash Chander (sic) ""there are some shops near the place of recovery and the shops were open at that
time. Many persons were coming and going from the spot. We tried to join some independent persons but they refused to become witness. Their
names were not asked and no action was taken against them.
16. In re: Hawa Singh v. State of Haryana, 2005 (4) RCR (Crl.) 292, recovery of contraband was effected near the bus stand. No independent
witness joined as all persons refused to join. It was not shown as to who were the person, who had refused to be witnesses. It was held that the
testimony of the official witnesses cannot be relied upon and the conviction was set aside.
17. Reverting back to the facts of the case in hand, as emanates from the above-extracted evidence of ASI Subhash Chander Investigator, there
was no dearth as to the availability of independent witnesses. He has not disclosed the names of the persons, who had refused to join in the
investigation. If such persons had shown their unwillingness to join the investigation, he should have recorded a note to this effect in the case diary.
There being no satisfactory explanation for non-joining of independent witness, it is very difficult to believe the statements of official witnesses. As
per the allegations of the prosecution, two bags were recovered from the back seat of the car whereas three bags were found in the dickey of the
car. The recovery is stated to have been effected from a Maruti car. It is very hard to swallow that the dickey of Maruti car could accommodate
the bags of poppy husk in the alleged manner.
18. In view of the infirmities enumerated above, this appeal succeeds and is accepted. Sequelly, the impugned judgment of conviction/order of
sentence is hereby set aside and the appellant is hereby acquitted of the charged offence.