Virender Singh, J. — Appellant Gurjant Singh was booked in case FIR No. 95 dated 15.5.1991, registered under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred to as ‘the Act’) at Police Station Zira, for allegedly keeping in his possession 25 bags of poppy husk containing 40 kgs each without any licence of permit. He vide impugned judgment of learned Additional Sessions Judge, Ferozepur dated 1.9.1994 stands convicted for the said charge and has been sentenced to undergo RI for ten years and to pay a fine of Rs. One lac, in default thereof to further undergo RI for three years.

2. In brief the case of the prosecution is that on 15.5.1991, SI Darshan Singh (PW-3) the then Incharge of Police Post, Fatehgarh Panjtoor along with other police officials including ASI Baljinder Singh (PW-2) was present in village Dolewala when he received a secret information against the appellant. One independent witness Sucha Singh was joined in the raiding party for the purpose of raiding the house of the appellant. Thereafter the house of the appellant was raided where he was found present. A written notice was given to him with regard to compliance of Section 50 of the Act and after getting his consent, his house was searched in which 25 bags containing poppy husk were recovered from the residential room of the house of the appellant. Each bag was containing 40 kgs of poppy husk. 100 grams of poppy husk was extracted from each bag as sample and remaining poppy husk was transferred to the same gunny bags. The sample and the bags containing reminder were made into different parcels which were sealed with the seal of ASI Baljinder Singh bearing inscription ‘BS’. The entire case property was taken into possession vide recovery memo. On personal search of the appellant, Rs. 50/- were recovered and the same were also taken into possession vide separate recovery memo. The grounds of arrest were prepared. Ruqa was sent to the Police Station upon which formal FIR was recorded. Roughsite plan was also prepared at the spot. On return to the Police Station, the case property was produced before SHO Daljit Singh (PW-1) who verified the entire investigation and affixed his own seal bearing letters ‘DS’. The entire case property was then produced before the Ilaqa Magistrate on 16.5.1991 The samples were sent to the Chemical Examiner through Constable Gurdev Singh (tendered his affidavit). On the receipt of the Chemical Examiner report, the appellant was challaned. He was charged under Section 15 of the Act by the learned trial Court.

3. In order to strengthen the charge, the prosecution has examined Inspector Daljit Singh PW-1 to prove the compliance of Section 55 of the Act, ASI Baljinder Singh PW-2 a witness to the recovery, Inspector Darshan Singh PW-3, the Investigating Officer in this case. Affidavit of Gurdev Singh Ex. PH, MHC Laswinder Singh Ex. PI and Chemical Examiner report Ex. PK were also tendered. Independent witness Sucha Singh was given up as having been over by the accused.

4. The plea taken by the appellant as emerges from his statement recorded under Section 313 Cr.P.C was of false implication. In order to strengthen his case, he produced aforesaid Sucha Singh who stated there was a dispute between one Bagicha Singh of village (Village Dolewala) and the appellant. The police had illegally taken the appellant and on the next date was called in the police station along with father of the appellant where his thumb impressions were obtained on certain papers. The police had assured them that the appellant would be released on the same day but subsequently he came to know that the appellant was implicated in this case.

5. After appreciation the entire evidence, the trial Court convicted and sentenced the appellant as indicated herein above. I have heard Mr. Bipan Ghai, learned counsel for the appellant and Mr. B.S Sewak, learned Senior Advocate General, Punjab with their assistance, I have gone through the entire evidence on record.

6. Mr. Ghai attacks the prosecution case primarily with regard to the link evidence submitting that it is stumbling badly on this aspect and it is a serious flaw which can be considered enough to discard the entire case. Dwelling upon his arguments, Mr. Ghai submits that stringent provisions are provided under the Act wherein minimum sentence for allegedly carrying commercial quantity of contraband is ten years and minimum fine is of Rs. 1 lac which can also be extended to 20 years and two lacs. Therefore, before the accused is submitted to the punishment under the Act, the prosecution case should be free from doubts especially on material aspects and link evidence is a very vital aspect. The prosecution should not fail atleast on that point.

7. Adverting to the facts of the case, Mr. Ghai submits that the samples were drawn on 15.5.1991 Those were sent to the Chemical Examiner on 29.5.1991 and deposited with the Chemical Examiner on 30.5.1991 There is no explanation from the side of the prosecution with regard to the delay of 14 days in sending the samples. He then contends that even if some latitude could be shown to the prosecution agency for this delay, but the other weaknesses are very damaging inasmuch as there is no evidence on record to show as to whom the seal was handed over after the sealing of the entire case property at the spot. Admittedly, it was not handed over to Such Singh, the independent witness who was joined by the Investigating Office. From this all, it can be comfortably inferred that the seal remained with the police may be any police official and therefore, chances of tampering with the property cannot be ruled out. Attacking the case of the prosecution further with regard to the said flaw, Mr. Ghai submits that the appellant was produced before the Ilaqa Magistrate on the following day of arrest i.e 16.5.1991 for police remand, but neither the case property was produced before the concerned Magistrate nor any orders were obtained from the concerned Judge for the safe custody of the same. Attention of this Court has been drawn to page No. 67 of vernacular record of trial Court file. Had the prosecution produced the case property before the Ilaqa Magistrate for verification on the next day, the entire ambiguity would have been made clear, whereas the aforesaid flaws, if, now, taken collectively, would lead to draw an inference that there was ample opportunity with the police to tamper with the case property. In support of his aforesaid contentions, Mr. Ghai relies upon it judgment of this Court tendered in Baldev Singh v. State of Punjab, 2005 (1) RCR (Crl.) 823 (P&H).

8. Mr. Ghai then submits that even Form No. 29 was neither prepared at the spot nor it was deposited in the malkhana. This flaw has also been taken very seriously by this Court in Bhola Singh v. State of Punjab, 2005 (2) RCR (Crl.) 520 (P&H).

9. He then submits that the prosecution case otherwise fails with regard to non-compliance of Section 100(4) of Cr.P.C Aforesaid Sucha Singh the so-called independent witness did not support the case of the prosecution and instead appeared as defence witness.

10. Mr. Ghai lastly points out certain discrepancies in the statement of the witnesses but primarily he sets score by the aforesaid infirmities especially with regard to the link evidence.

Refuting the arguments advanced by Mr. Ghai, Mr. Sewak learned Senior Deputy Advocate General, Punjab submits that no doubt certain infirmities have crept in with regard to link evidence but the same are not that serious so as to discard the case of the prosecution in totality. Heavy recovery has been effected in this case and, therefore, there was no reason for the Investigating Officer to falsely implicate the appellant.

11. Learned State counsel then submits that the appellant cannot derive any advantage with regard to non-compliance of Section 100(4) of Cr.P.C as Sucha Singh an independent witness was joined and subsequently given up as having been won over. Sucha Singh belongs to the village of the appellant and therefore, he was pressurised not to lend support to the case of the prosecution. The appellant, thus, has no escape.

12. Stringent provisions are provided under the Act for punishment especially in a case where commercial quantity of contraband is recovered. Therefore, in all fairness it becomes the fundamental duty of the prosecution to prove beyond any shadow of doubt that the investigation conducted in the case is absolutely flaw-less especially with regard to the link evidence which is of most significant aspect and the prosecution revolves around it. It becomes incumbent upon the prosecution to prove that from the stage of effecting the recovery till the sample reaches Chemical Examiner, there is no chance of tampering with it. Once the prosecution is stumbling On this vital aspect, the benefit is to be extended to the accused. While dealing with the cases under the Act, a Division Bench of this Court in State of Punjab v. Jalaur Singh, 2002 (3) RCR (Criminal) 478 (P&H), held that greater the charge stricter is proof is the accepted principle of law.

13. Adverting to the facts of the present case, the conceded position before this Court is that none of the official witness has stated a word in their substantive statements with regard to handing over of seal, after sealing the parcels and the remainder at the spot. In this regard, two important witnesses are ASI Baljinder Singh PW-2 and Inspector Darshan Singh PW-3 both are silent about it. The role of other witness (Inspector Daljit Singh PW-1) was with regard to the compliance of Section 55 of the Act. From all these facts, it can be concluded that the seal was not handed over to independent witness Sucha Singh at least and was kept by any of the two police officials who were witnesses to the recovery. So the chances of tampering with the case property cannot be ruled out. I am appreciating this aspect yet from another angel. The appellant was produced before the Ilaqa Magistrate on 16.5.1991 as is clear from the application moved by SHO. His police remand was asked for and the same was granted as is clear from the order passed on the said application. However, the case property was not produced before the court. Mr. Sewak after verifying from the trial Court records admits this fact. From all these facts one aspect is very clear that despite the police officials which includes SHO Daljit Singh also, the case property was not crosschecked by any or the officials. The samples were sent to the Chemical Examiner after 14 days of the alleged recovery. This, in my view, is a serious flaw so as to doubt the prosecution case on link evidence.

14. Another admitted position is that Form No. 29 was neither prepared at the spot nor deposited with the Incharge of the malkhana. The matter does not rest here. There is no evidence on record with regard to preparation of the seal impression chit as all the three prosecution witnesses are silent on this aspect. Form No. 29 (Ex. PK) no doubt reflects that one sample impression chit bearing inscription ‘BS’ and ‘DS’ is pasted on it. There are signatures of Daljit Singh SHO but it does not contain the signatures of ASI Baljinder Singh, Investigating Officer. Daljit Singh does not say a word that he has put his seal impression on any sample chit after affixing his seal on case property. It is also not exhibited before the trial Court. At the same time, there is also no reference in the report with regard to the fact that all the 25 samples sent to the Chemical Examiner were tallied with the seal impression chit. Therefore, it creates doubt in the mind of the court as to when this sample chit was prepared. No doubt while filling up Form No. 29 which is prepared by SHO Daljit Singh it is mentioned that 20 samples contained the sample seal impression ‘BS’ and ‘DS’ but in my considered view, this would not be sufficient to say that the link evidence is proved. This is the reason that in Bhola Singh's case (supra), this Court has laid lot of stress on this aspect and made it practically incumbent upon the investigating agency to fill up the aforesaid Form No. 29 at the spot. In my view the case of the appellant is squarely covered by the ratio of Bhola Singh's case (supra) as well as by the ratio of another judgment rendered in Baldev Singh's case (supra).

15. Since I am doubting the case of the prosecution with regard to the aforesaid vital flaw and discarding it in its entirety, considering it to be doubtful, I do not feel the necessity of detaining myself by entering into detailed discussion with regard to other weaknesses pointed out by Mr. Ghai whereas the same are of not less importance.

16. The net result is that the prosecution has not been able to prove charge against the appellant beyond any shadow of doubt and therefore, while extending the benefit of doubt to.

The instant appeal is, thus, allowed.

Since the appellant is stated to be on bail, he shall now be discharged of his bail bonds.

Appeal allowed.