Criminal Appeal No.429-SB of 2005 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Date of Decision: March 17, 2010 Criminal Appeal No.429-SB of 2005 Kala Singh ...........Appellant Versus State of Haryana ..........Respondent Criminal Appeal No. 1704-SB of 2008 Raj Kumar ...........Appellant Versus State of Haryana ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.R.N.Singal,Advocate for the appellant (In Criminal Appeal No.429-SB of 2009) Ms.Divya Sharma,Advocate for appellant (In Criminal Appeal No. 1704-SB of 2008) Mr.Y.P.Malik,Deputy Advocate General Haryana ** Criminal Appeal No.429-SB of 2005 2 Sabina, J. Vide this order, the above-mentioned two criminal appeals are being disposed of by a common order as they have arisen out of common judgment dated 8.12.2004 passed by the Additional Sessions Judge, Fatehabad. Appellants-Kala Singh and Raj Kumar alias Raju were convicted for an offence under Section 15 of the Narcotric Drugs and Psyhchotropic Substances Act, 1985 (for short `the Act) vide judgment dated 8.12.2004 passed by the Additional Sessions Judge, Fatehabad. Vide order dated 10.12.2004, the said appellants were ordered to undergo sentence of rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- each by the Additional Sessins Judge,Fatehabad. In case of default of payment of fine, the appellants were ordered to further undergo rigorous imprisonment for one year each. Hence, the present appeals by the appellants. The brief facts of the case, as noticed by the learned trial Court, in paras 2 and 3 of its judgment, read as under:- “2. Brief facts of the prosecution case are that on 1.2.2002 ASI Hira Singh along with other police officials was present at canal bridge of Bhakhra canal. At that time, the accused were seen coming on a scooter from the side of village Dhand. On seeing the police party, they tried to turn back the scooter. They were apprehended on suspicion. A gunny bag was also lying on the foot rest (paidan) of the scooter and another bag was also lying in between the accused and on its search, poppy husk was found. So the present case was got registered against the accused. The Criminal Appeal No.429-SB of 2005 3 Investigating Officer carried out the investigation at the spot. He prepared rough site plan, recorded the statements of the witnesses and prepared other documents. Thereafter, he had returned to the police station and produced the accused before the SHO who had verified the facts. On completion of investigations, challan was filed against the accused and copies thereof were supplied to the accused. 3. The case was committed for trial to this court. The accused was charge sheeted for committing an offence punishable under Section 15 of the NDPS Act by Sh.O.P.Verma, the then Additional Sessions Judge, Fatehabad vide orders dated 27.11.02. To the charge, the accused pleaded not guilty and claimed trial.” Learned counsel for the appellants have submitted that the prosecution case was doubtful. The entire case property had not been produced before the Court. Learned counsel has further submitted that appellant Kala Singh has undergone more than 6½ years of actual sentence,whereas, appellant-Raj Kumar has undergone more than 4 years and 10 months of actual sentence. Learned State counsel, on the other hand, has submitted that the prosecution had been successful in proving its case. As per the prosecution witnesses relating to recovery of contrabands from the appellants, the appellants were seen coming on Scooter on 1.2.2002 near canal bridge of Bhakhra Branch, Bighar to Dhand Road by the police party. A scooter bearing No.PCF 4552 was stopped. Driver of the Scooter disclosed his name as Kala and pillion rider disclosed his name Raj Kumar alias Raju. One bag of Poppy husk was recovered Criminal Appeal No.429-SB of 2005 4 from the foot-rest of the scooter, whereas, one bag of poppy husk was lying in between both the accused. Out of the recovered bags of poppy husk, two samples of 100 grams each were separated from each bag. The remaining poppy husk on weighment came to 71 kilograms 600 grams. The samples as well as the bags were sealed with the seal of `HS' and `JS'. Thereafter, the recovered poppy husk and samples were produced before Inspector Vijay Kumar, who further applied his seal on the samples as well as the bags. ASI Hira Singh handed over the case property as well as samples of poppy husk to MHC on return to Police Station. As per PW3 HC Om Parkash, on 1.2.2002 four samples and two bags of poppy husk were deposited with him by SI Hira Singh. On 4.2.2002, he handed over two samples of poppy husk weighing 100 grams each to Constable Chanan Ram for depositing the same with the Forensic Science Laboratory Haryana, Madhubhan. As per PW8, Constable, Chanan Ram, he deposited the said samples with the Forensic Science Laboratory on the same day. During trial only two bags of poppy husk were produced before the Court. However, the remaining two samples which had not been sent to the Forensic Science Laboratory for chemical examination had not been produced before the Court. PW5 SI Hira Singh, in his cross-examination, deposed that second sample from each bag was not available in the Court. There is nothing on record to suggest that the samples which had been sent for chemical examination related to each bag. The samples from each bag had apparently not been numbered. This makes the prosecution story doubtful. Since the prosecution has not been able to Criminal Appeal No.429-SB of 2005 5 produce the entire case property in the Court, the prosecution case is rendered doubtful. An accused is presumed to be innocent till proved guilty. Punishment provided under the Act is stringent and ,consequently, the prosecution is required to establish its case beyond the shadow of reasonable doubt. In the present case, the prosecution has failed to prove its case beyond the shadow of reasonable doubt. Accordingly, both these appeals are allowed. Impugned judgment of conviction and order of sentence of the appellants passed by the Additional Sessions Judge, Fatehabad under Section 15 of the Act are set aside. Consequently, the appellants are acquitted of the charge framed against them. (Sabina) Judge March 17, 2010 arya