V.S.Dave, J.:-

(1) This is a jail appeal preferred against the judgment of addi. Sessions judge, gangapur - city, dated april 2, 1987 who convicted the appellant for offence under s. 20 (b) of the narcotic drugs and psychotropic substances act, 1985.

(2) Brief facts of the case are that the accused - appellant is alleged to have been travelling in train no. 24 up going from gangapur to sawaimadhopur and two train police guards, (g. R. P. Constables) namely, girraj prasad pw. 3 and pratap singh pw. 4 were travelling in ordinary second class compartment. The, found the appellant sitting on one of the single seats. It is alleged that he felt little disturbed on seeing the constables and, therefore, he was interrogated by girraj prasad constable. Girraj prasad had noticed something in his right - hand under the rug he was putting on and so asked him to remove his hand and there fell down a small packet (p0th). On opening of the same it was found that it was full of charas. It was asked from gulam hussain whether he had license to which he denied. Just then the train had started from gangapur railway station for kota and by the time the interrogation went on it reached sawaimadhopur railway station. In the same compartment were travelling two witnesses - suresh kumar p. W. 2 and mahaveer prasad p. W. 1. They were also asked to get down and all these four persons along with the accused - appellant came back from sawaimadhopur to g. R. P. Police station gangapur city by 81 down train. There a written report was lodged by girraj prasad. The charas was weighed which was found to be 1 kg. Two samples were obtained and documents were prepared. After completion of investigation a charge sheet was submitted against the accused - appellant who was committed to the court of addi. Sessions judge, gangapur city. The prosecution in support of its case examined six witnesses. The accused appellant denied the whole incident and did not lead any evidence in his defence. The trial court believed the statements of the prosecution witnesses and convicted and sentenced the accused - appellant as indicated above. It is pertinent to mention here that the appeal was received from jail and, therefore, an amicus curiae was appointed by the court. Record was sent for. It is also pertinent to mention here that the accused was directed to be released on bail by the trial court but he belonging to kashmir and there being no relations on this side he could not be bailed out and he remained in jail despite the order of bail as mentioned above passed on 27. 10. 86.

(3) I have heard mr. Chand mal jam, amicus curiae and perused the entire record. The facts and circumstances of this case are alarming and speak of an unfair investigation. According to the prosecution both the constables boarded the train from gangapur city and were on way to kota as on duty. In the same compartment they had two witnesses, one of whom is a tea vendor on gangapur railway station and another is friend who was by the way going to kota to meet the sister of mahaveer. Therefore, all the four witnesses belong to gangapur city and have inter linked in between themselves having known each - other for past many years. No independent witness was sought to be called while the search and seizure was made. There were number of passengers travelling in the same compartment but none of them was either made a witness or was interrogated. Even their names had not been taken down. The most alarming is that when train left gangapur and the police guard detected the commission of the offence before the train arrived at sawaimadhopur railway station no effort was made to pull the chain and inform the train guard. Leave aside that, when the train reached sawaimadhopur which is one of the ruin junctions on broad gauge and where there is police post no effort was made for taking the culprit to the police station at sawaimadhopur where the accused could have been taken into custody and the case registered. It not, atleast information could be sent by telephone or wireless in advance at gangapur. It is borne out from the record that from the time 24 up train reached sawaimadhopur till 81 down train came all these persons remained sitting on sawaimadhopur railway station. They neither informed the railway officers nor the police there, yet more striking factor is that there is controversy about the witnesses purchasing the tickets from sawaimadhopur to gangapur. In the cases like the present where the two constables arrested a particular person in a peculiar circumstance and make only those persons as witnesses who are having close relations with them it becomes the duty of the court to carefully scrutinise the evidence of those persons as they are all interested in the success of the case. If there are independent witnesses chosen for the purpose, then there will be little difficulty in appreciating the evidence. It has also to be remembered that when the four persons join together to implicate the fifth, then the parrot - link statements are bound to be the same and it is only from the careful scrutiny of their cross examination that the effort could be made to gather the truth and it is in this back - ground that the evidence has to be scanned. Mahaveer prasad p. W. 1 belongs to gangapur city and working as a tea hawker on the tea - stall of one kamta prasad sharma who owns a tea - stall on railway platform. He has a friend named suresh who too is working as a hawker selling tea on the same platform but on the stall of ram narain sharma. He states that he was going to sawaimadhopur by janta express accompanied by his friend suresh. When they boarded the train he saw police people taking search of the present accused who had wrapped a rug. First he denied that he had nothing with him and at that time the train steamed off then on search a packet was found having black - balls in a small bag which was found to be charas. Police asked the accused where he was going and he replied that he is coming from bombay and going to kashmir, then police asked the witness who stated that he was going to sawaimadhopur. In presence of him and his friend search was made and then on sawaimadhopur railway station the accused was taken down and they returned gangapur after meeting their friends. He stated that police and the accused had also come to gangapur city by 81 down train. He thereafter accompanied police to g. R. P. Railway station where the accused was arrested and documents were prepared. On cross examination he stated that the train came on the railway station at 8. 30 p. M. And the constables were already in the compartment when, he boarded the train. There was lot of crowd in the compartment and when he entered he found that the police were already interrogating the accused. He stated that he did not know the names of the constables. He was confronted with the police statements where he had given out the names of the constables and he stated that the investigating officer had himself written the names. He had not given out the names. He had first given the statement that he was going to kota to meet his sister but he resiled from that statement when confronted about purchasing of the ticket. He then said that he had purchased ticket only upto sawaimadhopur. He stated that suresh had no work but he accompanied him as he was his friend. He stated that he reached sawaimadhopur at 9. 45 and left the accused at platform along - with the constables and went to a place known as rangmanch to meet his friend. He stated that he stayed only 10 minutes with his friend and again came to station where they met the constables who said that they should accompany again to gangapur city and, therefore, they cancelled their kota visit. 81 down train came to sawaimadhopur at 10. 00 am. And they reached gangapur at 5. 00 a. M. He admitted that he and suresh are selling tea on gangapur city railway station for last 12 years but denied that he did not know the persons working in g. R. P. Station on platform at gangapur city. He denies the suggestion that he is a false witness and had not gone to sawaimadhopur. Almost similar is the statement of suresh. He was working on the railway station for 15 years but he stated that he had seen these constables for the first time on that day at gangapur city. He never knew the names of these constables also. He admitted that there was a crowed in the compartment but no witness was interrogated. He stated that he went to meet reva who is their friend. This reva is also a hawker in running trains and mahaveer had some account with him. He also admitted that in fact he had gone to kota to meet mahaveers sister but they did not go to kota. He admitted that they did not purchase any ticket for going from the sawaimadhopur to gangapur.

(4) A perusal of the statements of these two witnesses does not inspire confidence that they are truthful witnesses. I am unable to conceive of that the two railway tea - stall hawkers would not know the names of the constables of g. R. P. Posted on the same railway station for number of years. In fact their experience show that they are closely know to each - other and it is much more when for a long standing period they are all there. Then, besides this, they had no definite aim for going to any place. First they speak of kota then resiled the statement and stopped at sawaimadhopur. Even they were not asked by the police people to be witnesses in the case yet they met their friend only for 10 minutes in sawaimadhopur. Then they took the journey with the same constables at gangapur city and it was then that they decided to be the witnesses in the case. In my opinion the whole story is a cock and bull story. No tickets had been purchased for their travelling to sawaimadhopur or to kota and even their employers were not examined to justify this. They are chance witnesses who have been taken and to me it appears that even the story of their going to sawaimadhopur is fake. If their story is believed, then the accused was travelling from bombay to delhi on way to kashmir which is the reverse way from gangapur to sawaimadhopur and also goes counter to the ticket which had been recovered from the accused as shown in his arrest memo, therefore, on none of the material facts their statements are of unimpeachable manner and i have no hesitation in holding that they are got up witnesses. Regarding the conduct of girraj prasad and pratap singh, suffice it to say that their conduct is far from satisfactory. They had not chosen any independent witnesses from inside the train at sawaimadhopur police station where they stayed for 3 hours. According to their own statements it is difficult to understand, even about the report in rojnamcha for their departure there are over - writings and girraj prasad p. W. 3 admitted that there is an interpolation at the portion c to d and there are some other names formerly. These constables had audacity to say that they are not knowing the two witnesses from before who admittedly are the hawkers on the same railway station for last 15 years a perusal of their statement shows that they are not giving straight and candid answers to the questions posed to them. I am unable to sustain conviction on the statements of such witnesses who failed to discharge their duties properly. It behaved these two constables to inform the train guard as soon as the train stopped at sawaimadhopur or they should have taken the accused to the g. R. P. Railway station, sawaimadhopur coupled with the fact that he should have detained the witnesses when they were permitted to go to the residence of some reva who was hawker in the running train, then their stay was only for 10 minutes and came back to the railway station, the whole story appears to be suspicious and to me it appears that some innocent man has been held up for some other miscreants who might have been with the seized property. The accused - appellant was a bonafide passenger having a valid ticket from jammu tabi to delhi and from delhi to bombay. He was also having his driving license as a tonga puller with him and had only rs. 300/ - for his expenses. A poor tonga puller who had nobody else to help him on his journey has been held up who could not even afford a lawyer and had to come in jail appeal, who also could not get himself bailed out because he had no surety in this area to stand for him. He has remained in jail from 4 - 4 - 1986 till date i. E. For more than a year arid a quarter in a case which has been hopelessly investigated. I have no hesitation in holding that the prosecution case is not free from doubt and the accused is entitled to acquittal.

(5) I would, therefore, accept this appeal, set aside the judgment and acquit the accused appellant of the charge. He shall be released forthwith if not required in any other case. The money recovered from him shall be refunded to him forthwith and if the same is not available it is directed that the jail authorities would make necessary arrangements by getting in touch with the administration for his reaching home town. Appeal allowed