P.K Jain, J.:— This appeal is directed against the judgment/order dated 5.12.1995/6.12.1995 passed by the Additional Sessions Judge, Jagadhri, whereby the appellant has been convicted of an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo Rigorous Imprisonment for 12 years and to pay a fine of Rs. 1 lac and in default of payment of fine, to further undergo Rigorous Imprisonment for three years.

2. The facts necessary for the disposal of this appeal are that on 6.3.1994, A.S.I Kuldip Singh of Police Station Kalanaur, alongwith his companion police officials and Barkha Ram Sarpanch, was present at Kalanaur barrier. The appellant was sighted coming from the side of the Railway Station having a jute bag on his head. On seeing the police party, the appellant tried to take a turn on the link road towards village Kalanaur. Suspicion having arisen, Assistant Sub Inspector Kuldip Singh apprehended the appellant. Suspecting that the jute bag might be containing powdered poppy husk, Assistant Sub Inspector Kuldip Singh inquired from the appellant as to what the jute bag contained? The appellant isclosed that the same contained powdered poppy husk. On it, Assistant Sub Inspector Kuldip Singh gave an option to the appellant that if he so desired, the search could be conducted before a Gazetted Officer. The appellant reposed confidence in Assistant Sub Inspector Kuldip Singh. However, as a matter of precaution, Assistant Sub Inspector Kuldip Singh flashed a wireless message on which Shri Jaswant Singh Lamba, D.S.P (PW-1) reached the spot. On conducting the search of the jute bag, the same was found to contain 22 kilograms of powdered poppy husk. Contents weighing 250 grams were separated by way of sample. The sample contents and the remaining contents were converted into two sealed parcels with the seal of ‘KS’ and seal after use was handed over to Barkha Ram, Sarpanch. Ruqua Ex. PE was sent to the Police Station for the registration of a case on the basis of which formal F.I.R Ex. PE/1 was recorded. The sealed sample parcels were sent to the office of Forensic Science Laboratory. After the receipt of the report, a charge-sheet was submitted to the Court.

3. A charge under Section 15 of the Act was framed against the appellant who denied the same and claimed trial.

4. In support of its case, the prosecution examined six witnesses. Shri Jagwant Singh Lamba (PW-1), Shri Barkha Ram (PW-4) and Head Constable Raj Kumar (PW 5) are the witnesses to the recovery. Assistant Sub Inspector Kuldip Singh is the searching and Investigating Officer. Additional Station House Officer Ombir Singh (PW 2) had prepared the charge-sheet under Section 173 of the Code of Criminal Procedure (hereinafter referred to as the Code) against the appellant. Head Constable Naresh Kumar (PW 3) had recorded the formal FIR Ex. PE/1 on receipt of ruqua Ex. PE through Constable Jagdish Singh. Affidavit Ex. PB of MHC Zile Singh, Ex PC affidavit of Constable Rattan Singh and Ex. PD, the report of the Chemical Examiner were tendered in evidence.

5. In his examination recorded under Section 313 of the Code, the appellant pleaded his innocence and false implication. He did not produce any evidence in his defence.

6. On an appraisal of the evidence produced on the record, the trial Court came to the conclusion that the prosecution had proved its case beyond reasonable doubt against the appellant and as such convicted and sentenced him as stated above. Hence this appeal.

7. We have heard the learned counsel for the parties and have gone through the record of the trial court.

8. Shri K.S Dhaliwal, Advocate, the learned counsel for the appellant has argued that the entire story of the prosecution is a deliberate concoction and the appellant was never apprehended and searched as alleged. It has been pointed out by the learned counsel that the signatures of Shri Jagwant Singh D.S.P (PW 1) on the seizure memo Ex. PA were obtained in his office by Assistant Sub Inspector Kuldip Singh. It has also been pointed out by the learned counsel that Barkha Ram Sarpanch (PW-4) has demolished the entire prosecution case against the appellant and the conviction recorded by the trial Court cannot be sustained merely on the testimony of the interested police officials. On the other hand, Shri Varinder Singh, learned Deputy Advocate General for the State of Haryana has argued that after the appellant was detained, he was given the requisite option for conducting his search and consent memo Ex.PF was prepared. It has been further argued that still A.S.I Kuldip Singh by way of precaution flashed a wireless message on which Shri Jagwant Singh DSP (PW 4) reached the spot and search was conducted in the presence of the said D.S.P It has been also pointed out by the learned Deputy Advocate General that the mere fact that Barkha Ram Sarpanch (PW 4) has turned hostile and has not supported the prosecution, does not mean that reliance cannot be placed upon the testimony of the other witnesses merely on the ground that they happened to be Police Officers.

9. We have given our careful thought to the respective arguments.

10. It is necessary to mention that Barkha Ram Sarpanch (PW-4) was the independent public person alleged to be present at the time of apprehension of the appellant and the recovery of the powdered poppy husk from the jute bag alleged to have been carried by the appellant on his head. But when he came into the witness box, he stated on oath that no powdered poppy husk was recovered from the possession of the appellant on 6.3.1994 by Assistant Sub Inspector of Police Station, Yamuna Nagar in his presence. He has clarified that his signatures were obtained on Ex. PA, Ex. PF and Ex. PG when he was called to the Police Station, Yamuna Nagar. He also denied that the search of the appellant was conducted in his presence or in the presence of Jagwant Singh D.S.P No question was put to him if the seal after use (as alleged) was handed over to him or not.

11. Keeping in view the testimony of Barkha Ram (PW. 4) let us turn to the testimony of Jagwant Singh DSP (PW. 1). It is important to note that according to the prosecution, he was summoned to the spot by flashing a wireless message to witness the search of the appellant and the jute bag being carried by him, and that the search of the jute bag was conducted in the presence of this witness and powdered poppy husk weighing 22 kilograms was recovered therefrom. In other words, according to the prosecution, this witness who is a police officer, was an eye witness to the recovery. But it is interesting to note that his statement under Section 161 of the Code was not recorded although he was such a material witness of the prosecution. No explanation has been given either by Jagwant Singh DSP (PW-1) or Assistant Sub Inspector Kuldip Singh (PW. 6) for not recording the statement of this witness under Section 161 of the Code. Although it is not mandatory for an Investigating Officer to record the statement of a witness under Section 161 of the Code, yet omission on the part of the Investigating Officer to do so in respect of a material prosecution witness can give rise to an inference that such a witness had not seen the occurrence and has been introduced to support the story of the prosecution at a later stage. Such an omission would further result that the earlier statement of a witness not being made available to the accused and the court not being in a position to test the veracity of that witness. The failure to record the statement of such an important eyewitness is a serious irregularity which considerably prejudices the accused and may in itself make the testimony of such a witness tainted. If the testimony of Barkha Ram, Sarpanch, (PW-4) is now read in this context, it becomes evident that Barkha Ram Sarpanch (PW-4) is not telling a lie when he has stated that no recovery was effected in his presence and his signatures were obtained by the Assistant Sub Inspector at the Police Station. Once it is concluded that the testimony of D.S.P Jagwant Singh (PW. 1) is a tainted one and the case of the prosecution has not been supported by Barkha Ram who is a Sarpanch and not an ordinary citizen, the conviction of the appellant for such a heinous offence cannot be sustained merely on the statement of Head Constable Raj Kumar (PW-5) and Assistant Sub Inspector Kuldip Singh (PW. 6). It is very well known that “the fouler the crime, the greater the evidence.” The word ‘greater’ does not mean in ‘quantity’ but it signifies in ‘quality’. In the case in hand, we are not ready to accept the testimony of Raj Kumar (PW-5) and Assistant Sub Inspector Kuldip Singh (PW-6) in the face of that of Barkha Ram, Sarpanch (PW. 4) and the analysis of the credibility of the testimony of D.S.P Jagwant Singh. Therefore, the case of the prosecution becomes suspect .

12. At the conclusion of the trial, the prosecution can succeed only on discharging the unshifting burden of proving its case against the accused and strongest of suspicion does not constitute the proof required. One of the essential facts to be proved affirmatively by the prosecution is that right from the stage of the seizure till it reaches the hands of the Chemical Analyst, there was no possibility to change or tamper with the recovered material or the sample parcel. If the link evidence to rule out this possibility is wanting in any case, the prosecution case must fail. This view finds affirmation in a judgment of the apex court rendered in State Of Rajasthan v. Daulat Ram., (1980) 3 SCC 303 : AIR 1980 SC 1314 .

13. In the case in hand, the prosecution has tendered in evidence the two affidavits Ex. PB and Ex. PC sworn by MHC Zile Singh and Constable Rattan Singh. It may be stated that MHC Zile Singh was incharge of Malkhana on 6.3.1994 when Assistant Sub Inspector Kuldip Singh is stated to have deposited the case property with him including the sample parcel. This affidavit does not show that the impression of the seal was also deposited with the sample parcel/case property. This affidavit has been filed to show further that on 21.3.1994, he had sent the sealed sample parcel of this case to the office of Assistant Chemical Examiner, Chandigarh through Constable Rattan Singh vide R.C No. 81 dated 21.3.1994 Affidavit Ex. PC has been tendered in evidence to show that Constable Rattan Singh had taken the sealed sample parcel of this case on 21.3.1994 from MHC Zile Singh of Police Station Sadar Yamuna Nagar and had deposited the same in the office of Assistant Chemical Examiner, Chandigarh and that the said sample parcel was not tampered with by anybody. Thus both these police officials were material witnesses to prove the link evidence but they were never tendered for cross-examination by the appellant. It is also important to note that these two affidavits were never put to the appellant in his examination under Section 313 of the Code. Once these witnesses were not tendered for cross-examination by the appellant and further these two affidavits were not put to the appellant in his examination, this so called link evidence tendered in the shape of affidavits Ex. PB and Ex. PC cannot and could not be used against the appellant. The resultant effect is that the report of the Chemical Examiner Ex. PD cannot e acted upon as the possibility that the sample was not tampered with by anybody till the same reached the hands of the Chemical Examiner, has not been ruled out. This view is supported by two judgments of this Court rendered in Bhoora Singh v. State of Punjab in Criminal Appeal No. 14-SB of 1995 decided on 10.7.1996 : 1996 (3) RCR (Crl.) 336 and Jai Singh… v. State Of Haryana…., 1995 (3) R.C.R 627. This fact in itself makes the case of the prosecution shaky.

14. For the reasons mentioned above, we hold that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt.

15. Consequently this appeal succeeds. The conviction and sentence of the appellant are hereby set aside and he is acquitted of the charge under Section 15 of the Act. The appellant be set at liberty forth with if not wanted in any other case.