Anil Kumar v. State Of Haryana .

V.S Aggarwal, J.:— This is an appeal filed by Anil Kumar (hereinafter described as ‘the appellant’) directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Bhiwani dated 26.7.95 and 28.7.1995 respectively. By virtue of the impugned judgment, the learned trial court held the appellant guilty of the Page: 564offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter described as ‘the Act’). By the subsequent order of sentence, the appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. One lac. In default of payment of fine, he was to undergo further rigorous imprisonment for 2-½ years.

2. The relevant facts giving rise to the present appeal are that on 14.11.1991 SI Ram Singh alongwith ASI Ram Chander and other officials were present near the Bus Stand Loharu. They were patrolling the area. Secret information was received. After few minutes, the appellant was spotted. He was seen coming from the Rajasthan side and he was holding a bag in his hand. On seeing the police party, he turned back but was apprehended.

3. SI Ram Singh told the appellant that he was suspected to be in possession of some contraband. A search is to be effected. If the appellant so likes, his persons can be searched in presence of a Gazetted Officer or a Magistrate. Notice in writing was given to the appellant. The appellant reposed confidence and permitted SI Ram Singh to effect his search. Thereupon the search was effected. 2-½ kilogram of opium was recovered from the possession of the appellant.

4. 100 grams was separated as a sample. The sample and rest of the opium were converted into separate parcels and sealed with the seal of ‘AK’. Seal after use was given to Banwari Lal a Public witness. Both the packets were taken into possession vide a recovery memo. On returning to the police station, the appellant and the recovered packets were produced before DSP Bhup Singh. He checked the case property and resealed the same with his own seal. Subsequently, the representative sample was sent for chemical analysis; On receipt of the report that contents were opium, challan as against the appellant was filed.

5. The learned trial court framed a charge against the appellant for the offence punishable under Section 18 of the Act. The appellant pleaded not guilty and claimed a trial. In support of its case the prosecution examined six witnesses which included Banwari Lal PW-2, ASI Ram Chander PW-5 as the two witnesses pertaining to the recovery of opium from the person of the appellant and other co-related proceedings of the investigation. This was followed by the statement of the appellant. The incriminating evidence was put to him. The appellant contended that opium has been planted upon him. He was running a shop in village Bhadra. Station House Officer of Badhra wanted the shop occupied by him for his close relation. He asked the appellant to vacate the shop. This happened 7 or 8 days before this incident. The appellant refused to vacate the shop. Thereupon he was falsely implicated.

6. The learned Additional Sessions Judge on appraisal of the evidence held that the evidence on the record establishes beyond all reasonable doubt the opium was recovered from the person of the appellant. It was further concluded that provisions of Sub-section (1) of Section 50 of the Act have been complied with. With these findings, the appellant was held guilty of the above said offence and the order of sentence followed. Hence, the present appeal.

7. Banwari Lal PW-2 is the solitary public witness examined. As per his version stated on oath in court, he was a member of the police party and accompanied them to the place of recovery. On seeing the police party, the appellant took a different direction but was apprehended. From the bag of the appellant 2-½ kilogram opium was recovered. As per this witness 100 grams was taken as the sample. The sample and rest of the opium were converted into separate packets and taken into possession vide memo Ex. PC. Seal after use was given to him. The witness was cross-examined by the public prosecutor and thereupon stated that appellant refused to give his search to the Assistant Sub-Inspector in presence of a Gazetted Officer or a Magistrate. On cross-examination by the counsel for the appellant, he stated that one police officer left with the ruqa at about 1.00 p.m He did not know if any other case was detected by the Sub Inspector on that date. He admitted that in the case State v. Naresh he was one of the cited witnesses. He could not state when Naresh was apprehended but contended that he was a false witness in that case. He was even cited as a prosecution witness in the case State v. Om Parkash. Page: 565That case was registered with an offence punishable under the Indian Arms Act.

8. The appellant produced Ex. D1 copy of the judgment in the case titled State v. Naresh. Perusal of the same indicated that Banwari Lal was cited as a witness and he did not support the prosecution version. Even Banwari Lal admits that he was not a witness of recovery in that case and was cited as a false witness. The cross-examination further reveals that he had been appearing as a witness in another case of the police under the Indian Arms Act. It appears that he is a person who is available to the police at any convenient time. It will be wholly unsafe to place reliance on the statement of such a witness.

9. In the present case the Investigating Officer, had died and, therefore, he could not spell the correct facts about the case. However, the prosecution still fumbled and faltered. It was the prosecution evidence that the appellant and the recovered articles were produced before the Deputy Superintendent of Police who checked it and had affixed his seal. Since the Deputy Superintendent of Police is alleged to have affixed his seal, he was an important link evidence. During the course of trial he was not produced as a witness. The important evidence, therefore, was missing. The chain of events having not been established, the benefit of doubt should have been given to the appellant.

10. The only other witness was ASI Ram Chander PW-5. He is a witness who is stated to have accompanied SI Ram Singh and was a member of the police party. He supported the prosecution case in his examination-in-chief but during cross-examination the witness admitted that he does not remember who else was in the police party which went to Serla headed by SI Ram Singh. He could not state as to when they left Serla for Loharu. These facts indicate that possibly he was not a member of the police party.

11. In addition to that the version of the prosecution looks suspicious. The public witness joined was not at all reliable. The probability of the prosecution case to be true looks far from correct because as already mentioned above, it does not appear that ASI Ram Chander was a member of the raiding party. The tenor of the statement of the witnesses indicated above, indicates that it cannot be held with certainty that they were in the raiding party. The prosecution, thus, failed to establish its case beyond all reasonable doubt.

12. For these reasons, the appeal is accepted. The Judgment and the order of sentence passed by the trial court are set aside. The appellant is acquitted giving him the benefit of doubt. He be released if not required in any other case.