Crl.A. No.190-SB of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A. No.190-SB of 2005 DATE OF DECISION: November 17, 2011 CHAMAN SINGH ...APPELLANT VERSUS STATE OF PUNJAB ...RESPONDENT CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL. 1. Whether the judgement should be reported in the digest? No ---- PRESENT: MR. A.P.S MANN, ADVOCATE AMICUS CURIAE FOR THE APPELLANT. MR. V.P.S. SIDHU, AAG, PUNJAB. M.JEYAPAUL, J.(ORAL) 1. Accused Chaman Singh was convicted under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'NDPS Act'). He has challenged the judgement of conviction and sentence passed by the trial Court. 2. The brief case of the prosecution is that PW5 S.I. Paramjit Singh received a secret information on 6.8.2002, when he was in the process of checking the vehicles at bus-stop Harjiana alongwith other police officials. He sent ruqqa for registration of a formal FIR. He also sent a request to PW3 DSP Navjot Singh to come down to the scene of occurrence. PW5 alongwith PW4 ASI Jagdish Rana and other police officials descended on the spot specifically referred to by the informer. There they noticed poppy husk kept in a tarpaulin. The accused-appellant was apprehended. The other three persons gave a slip to the police party. As per the Crl.A. No.190-SB of 2005 -2- preference of the accused, in the presence of PW3 DSP Navjot Singh a search was conducted. Thirty bags of poppy husk were found at the spot. Two samples of 250 gms. each were drawn from each of the bags. The remaining poppy husk in each of the bags weighed 19.500 kgs. PW3 and PW5 affixed their seal on the samples and the residue which were separately parceled. The case property was recovered under the recovery memo Ex.PD. The samples and the bulk quantity alongwith the accused were entrusted to the Station House Officer. The samples were sent for examination. The chemical examiner returned a finding that the sample was nothing but poppy husk. 3. I heard the submissions made by learned counsel appearing for the appellant as well as the learned AAG, Punjab appearing for the State. 4. The prosecution has come out with a case that based on the secret information received by PW4 a search was conducted in a barren land and a large quantity of contraband, namely, poppy husk was recovered. The recovery was effected only at 10.30 p.m. PW4 had sufficient time to associate independent witness after receiving the secret information. But, for the reasons best known to him, he had not associated any independent witness for the recovery. Such a non-association of an independent witness inspite of the fact that PW4 had time to associate an independent witness creates a doubt in the case of the prosecution. 5. The recovery has been made admittedly in a barren land. No investigation was done as to who actually was the owner of the barren land. The fact remains that three persons had already given a slip to the police party. It may be a case where the land owner may have some connection Crl.A. No.190-SB of 2005 -3- with the contraband stored in the land or it may be a case where the accused who had fled away from the scene of occurrence may be the actual culprits in this case. 6. PW5 and PW4 has come prepared to the spot having received the secret information. They have come with sufficient police officials on receiving the information that there had been some storage of poppy husk. When they have come prepared, they would see that no one at the spot who is involved in the crime gives a slip to the police party. But quite unfortunately, PW4 and PW5 would say that three persons had given a slip to the police party. Such a story of the prosecution is not at all believable. 7. It is not the case of the prosecution that the appellant herein made an attempt to run away from the scene of occurrence. If at all he had any connection with the contraband, he would have definitely made an attempt to flee away from the scene of occurrence with the other persons who had started running from the spot. The fact that the accused submitted meekly to the police party gives rise to a doubt as to his complicity in the crime alleged. 8. It is found that there is a delay of about 16 days in sending the sample to the chemical examiner. No explanation is forthcoming from the prosecution as to why such a delay has occasioned. When the seal itself was with the police party and not with any independent witness, there is every possibility of tampering with the content of the sample. The prosecution has failed to establish the conscious possession of this accused as no witness has spoken to the fact that the accused was in conscious possession of the contraband. Crl.A. No.190-SB of 2005 -4- 9. In view of the above, I find that the prosecution has failed to establish beyond reasonable doubt that the accused committed an offence under Section 15 of the NDPS Act. Therefore, the accused-appellant is entitled to acquittal. 10. For the foregoing reasons, the judgement of conviction and order of sentence passed by the trial Court as against the accused-appellant is set aside and the appellant is acquitted of the charge as against him. 11. Appeal stands allowed. November 17, 2011 (M.JEYAPAUL) Gulati JUDGE