Virender Singh, J. — Appellant Gian Singh stands convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short to be referred as “the Act”) vide impugned judgment of Additional Sessions Judge dated 30.8.1993 and has been sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/- in default of payment of fine to further undergo rigorous imprisonment for a period of one year. Aggrieved by the said judgment of conviction, he has preferred the instant appeal.

2. The appellant stands charged for the aforesaid offence for allegedly keeping in his possession ten bags of poppy husk each containing 32.250 kgs. On 6.4.2002 when ASI Jaswant Singh, PW4 along with other police officials was holding a Naka on the turning of road leading to village Chamba Khurd, a truck bearing registration No. UP-81-8729 was noticed coming to that side. It was stopped. The same was being driven by the appellant. Pargat Singh, his co-accused (since acquitted) was on the back side of the truck. He jumped from the truck and ran away. The appellant was apprehended. In order to show the compliance of Section 50 of the Act, he wanted to get the search of the truck conducted before some Gazetted Officer or Magistrate. When the appellant reposed confidence in the police, the truck was searched by ASI Jaswant Singh. Ten bags containing 32.250 kgs. of poppy husk were recovered. 250 grams of poppy husk was taken out from each of the bag as sample and put into sealed parcels which were duly sealed with the seal impression of ‘JS’ (Jaswant Singh). The remaining bags were also separately sealed with the same seal impression. The case property was taken into possession along with sample parcels vide recovery memo attested by the PWs. The truck and the registration certificate were also taken into possession vide separate recovery memo. Licence of appellant was also taken into possession vide a separate recovery memo. On receipt of the ruqa sent to the Police Station, formal first information report was recorded. After completing all the formalities at the spot, the appellant and the case property were produced before SI Santokh Singh, the SHO Police Station Sarhali, who, after verification also sealed the parcels with his own seal bearing impression ‘AS’. The case property was then deposited with Moharrir Head Constable.

3. Pargat Singh, co-accused of the appellant was arrested subsequently on 23.4.1993

4. After the receipt of report of the Chemical Examiner, the appellant and his co-accused were challaned. They were charged under Section 15 of the Act. After appreciation of the entire evidence, learned trial Court convicted the appellant, whereas his co-accused has been acquitted.

5. Hence, this appeal.

6. The case of the prosecution mainly hinges on the statement of ASI Mohan Singh (PW2) and ASI Jaswant Singh (PW4), the Investigating Officer as the recovery was allegedly effected in the presence of both these witnesses. In order to prove the compliance of Section 55 of the Act, the prosecution has examined SI Santokh Singh, SHO Police Station Sarhali (PW3). Similarly, in order to prove the link evidence, the prosecution relies upon the affidavit of Head Constable Satnam Singh (Exhibit PD) and of Constable Kanwaljit Singh (Exhibit PD/1). The report of Chemical Examiner is proved as Exhibit PG. Certain witnesses were given up as unnecessary.

7. The defence set up by the appellant, as is clear from his statement under Section 313 of the Code of Criminal Procedure, is of false implication. He takes the plea that his truck was being used by the Police continuously for a number of days and when he demanded the charges, he was falsely implicated in this case. However, no defence was led from the side of the appellant except producing one telegram (marked ‘A’), that too from the side of Pargat Singh, his co-accused.

8. I have heard Mr. Bipan Ghai, learned counsel for the appellant and Mr. MS Sidhu, Senior Deputy Advocate General, Punjab. With their assistance, I have gone through the entire record very minutely.

9. According to Mr. Ghai, the case of the prosecution fails primarily on the following two infirmities.

10. The first flaw highlighted by Mr Ghai is that in order to prove the link evidence, the prosecution relies upon affidavits Exhibit PD of HC Satnam Singh and Exhibit PD/1 of Constable Kanwaljit Singh. The Public Prosecutor had simply tendered their affidavits before the trial Court without producing the aforesaid police officials. No opportunity was given to the accused-side to cross-examine the said witnesses. This weakness touches the core. Learned counsel has drawn my attention to the zimni orders in this regard.

11. Mr. Ghai then draws the attention of this Court to another infirmity stating that there is no reference to the aforesaid affidavits even in the statement of the accused recorded under Section 313 of the Code of Criminal Procedure. This shows that the material evidence in the shape of link evidence was never put to the accused. This again is very material infirmity.

12. In support of his aforesaid contentions, Mr. Ghai has relied upon two judgments of this Court; (a) Kapil Dev… v. State Of Punjab…, 2004 (2) RCR 275 (P&H) and (b) Baldev Singh v. State of Punjab, 2004 (3) RCR (Crl.) 262 (P&H)

13. The other infirmity in the case of the prosecution as projected by Mr. Ghai is that the seal of ASI Jaswant Singh having the impression of ‘JS’, which was used for the purposes of sealing the parcels, was handed over to Constable Mohan Singh who is also one of the witnesses to recovery. This witness in his cross-examination states that he had handed over the seal on the next date. Learned counsel submits that the case property was deposited with Moharrir Head Constable on 6.4.1992, whereas it was sent to Chemical Examiner for analysis on 21.4.1992 Till the case property was despatched to the Office of Chemical Examiner, the seal should not been made available to the Investigating Office as the possibility of tampering with the sample parcel cannot be ruled out. In support of his submissions, the learned counsel relies upon the judgment under Baldev Singh v. State of Punjab, 2005 (1) RCR (Cri) 823 (P&H).

14. Learned counsel has also made an attempt to shatter the case of the prosecution on other weaknesses as well but he sets store mainly on the aforesaid two flaws and prays for acquittal.

15. Learned State counsel while controverting the arguments advanced by Mr. Ghai submits that the recovery allegedly effected from the appellant is heavy. There cannot be any reason for the police officials to falsely implicate him. Therefore, the conviction, as already recorded by the trial Court, deserves to be upheld.

16. After giving my thoughtful consideration to the rival contentions and going through the trial Court records, I am of the considered view that the prosecution case fails.

17. I find substance in the first limb of arguments advanced by learned counsel for the appellant. Admittedly, the case of the prosecution in order to prove link evidence hinges upon the two affidavits Exhibits PD and PD/1 tendered by the Public Prosecutor during the trial I have minutely seen all the zimni orders. Affidavit Exhibit PD was tendered by the Public Prosecutor on 9.6.1993 on which date certain police officials were given up. There is a statement of Public Prosecutor to this effect. The zimni order dated 9.6.1993 is re.-produced as under :

“Present: Addl. PP for the State.

Accused on bail with counsel.

Two PWs examined. No other witness is present. Affidavit of one witness produced. Two PWs given up. Learned Additional PP wants to summon ASI Jaswant Singh and Constable Kanwaljit Singh. Both the witnesses now be summoned for 13.7.1993, 9.6.1993

Additional Sessions

Judge”

18. Thereafter, on 13.7.1993 the Public Prosecutor had tendered another affidavit Exhibit PD/1 of Kanwaljit Singh. The zimni order of that date is also re-produced as under for reference :

“Present: Additional PP for the State.

Accused on bail

Affidavit of Kanwaijit Singh tendered. ASI Jaswant Singh served but is absent. He be summoned through bailable warrants in the sum of Rs. 2,000/- for 20.8.1993, 13.7.1993

Additional Sessions Judge”

19. The aforesaid factual position indicates that the aforesaid two main witnesses, who had to prove the link evidence, were not produced in the Court for cross-examination.

20. This certainly is a material lacuna which knocks at the bottom of the case and can be taken against the prosecution.

21. It may be mentioned here that the other argument advanced by Mr. Ghai to the effect that there is no reference to the affidavits of the aforesaid persons. In the statement of the accused recorded under Section 313 of the Code of Criminal Procedure has to be repelled in the light of the latest judgment of Hon'ble Apex Court rendered in State of Punjab v. Sawaran Singh, 2005 (3) Apex Criminal 8 : 2005 (3) RCR (Criminal) 889 : JT 2005 (6) SC 456 and, therefore, the reliance of Mr. Ghai upon two judgments of the Court rendered in Kapil Dev… v. State Of Punjab… and Baldev Singh v. State of Punjab (supra) do not come to the rescue of the appellant on this very aspect, whereas the aforesaid two case laws squarely cover the case of the appellant on the point of link evidence as discussed hereinabove.

22. In my view, the other infirmity in this regard highlighted by Mr. Ghai is also fatal to the prosecution. The cross-examination of ASI Mohan Singh, PW2 reflects that he had returned the seal on the next date i.e 7.4.1992 and the sample was sent to the Chemical Examiner on 21.4.1992 This shows that the seal remained with ASI Jaswant Singh, the Investigating Officer till the sample was despatched to the Office of the Forensic Science Laboratory. The possibility of seal being tampered with, substance being changed and the container/packet being re-sealed cannot be ruled out. All these safeguards are necessary to show that in between the sample or the case property is not tampered with and in the absence of such safeguard as it has happened in the instant case, the prosecution case with regard to link evidence can be seen with an eye of suspicion. It is well settled that it is the bounden duty of prosecution to prove to the hilt that from the stage of recovery upto the stage of handing over of the sample to the Chemical Examiner, that sample containing contraband is not tampered with at all. The judgment rendered in the case of Baldev Singh (supra) cited by learned counsel for the appellant squarely covers the case of the appellant and he deserves acquittal, inter alia, on this ground also. My view is further strengthened by a latest judgment of the Apex Court rendered in Rajesh Jagdamba Awasthi v. State of Goa, 2005 (1) Apex Criminal 240 : 2005 (1) RCR (Crl.) 406 (SC).

23. I do not feel the necessity of entering into detail discussion with regard to the other flaws projected by Mr. Ghai for the reason that in my considered view the prosecution case fails on account of the aforesaid material infirmities.

24. The net result is that the prosecution fails in proving the conscious possession of the appellant qua the contraband beyond any shadow of reasonable doubt and, therefore, while extending benefit of doubt to him, I hereby set aside the impugned judgment of conviction and sentence. He is acquitted of the charge framed against him and is also discharged of the bail bonds furnished by him during the pendency of the instant appeal.

Appeal allowed.