Full Judgment
G.K. Sharma, J.
1. This appeal from jail has been preferred by Sattar Mohammed against the judgment dt. 21-6-68 passed by the Additional Sessions Judge No 1, Kota by which, he convicted the appellant Under Section 8/18 of the Narcotic Drugs & Psychotropic Substances Act (here in after to be referred as the Act) and sentenced him to 10 years' rigorous imprisonment and a fine of Rs. 1,00,000/- in default of payment of fine, to under go one year's R.L
2. ASI Mukhpal Singh along with other Police Constables of P.S. Makbara was on patrolling on 25-3-86 The ASI was given information by tome informant that a person named Abdul Sattar is sitting near the Ice Factory with some drug in, small packets, At this ASI along with Police Constables and Shobba Ram and Abdul Rasheed came to Ice Factory at 10.35 am. He found Abdul Sattar sitting on the coiner of Ice Factory and in presence of these persons search was taken and 14 packets were found in his pocket. On opening these packets he found some narcotic content in them. Those packet were weighed and the weight of the packet was found to be of 13 grams. Abdul Sattar had no licence to sell the drug so he was found to have committed the offence Under Section 8/18 of the Act. The ASI submitted this written report Ex. P. 3 to the S.H.O. P.S. Makbara along with Abdul Sattar and the seized articles. During investigation the sealed articles were sent to Forensic Science Laboratory (FSL) for examination. Thereafter, the charge sheet was submitted,
3. The trial Court framed charge against the appellant Under Section 8/18 of the Act who pleaded not guilty and claimed trial. The learned Additional Sessions Judge found him guilty and sentenced him as mentioned above,
4. The learned Amicus Curiae argued that the recovery should not be believed. While seizing the articles there were two independent witnesses. Abdul Rasheed (PW 1) was one of the recovery witnesses who has not supported the prosecution story and was declared hostile. Another independent witness Shobba Ram was not produced by the prosecution. There remains only the statements of police officials, So the fact of recovery of the articles has not been established.
5. The learned Public Prosecutor argued that the statement of police officer cannot be thrown away and on the basis of such statement conviction can be based. It is correct that it is not the principle of law that police offices: should not be believed. The conviction can be based on the solitary statement of a police officer but actually the statement of police officer in such circumstances when the independent witness have not corroborated the prosecution story deserves to be strictly scrutinized. After seeing the entire record I find that one independent witnesses has not supported the prosecution case and another independent witness has not been examined and the statement of Police officer is not of such sterling worth which would prove that the recovery was made from the possession of the appellant. Hence, the argument of the learned Public Prosecutor has no substance.
6. After going through the judgment it is found that the learned Addl. Sessions Judge has relied on the report of the FSL. In the judgment he has mentioned the report of the FSL, mark 1. Actually, this report has not been submitted during the examination of the witnesses. It is possible that this report was in the file and the report of the FSL need not to be proved but at least this should have been tendered in evidence by the prosecution. The Inspector who investigated the matter, the ASI, who detected the appellant have been examined but they have not stated a single word in their statement that the report of the FSL has been received and which is on the record. Simply production of the FSL report at the time of statement would be sufficient to make it as exhibit, Unless a document is exhibited the learned Additional Sessions Judge Should not have relied on it. When the document was not tendered in evidence, the effect was that the accused had no opportunity to ask a single question to any witness about this FSL report. Therefore. the FSL report is most important report and it was the duty of the prosecution to have exhibited it. Then if we look at the FSL report where mark I is written and this has the initial of the Additional Sessions Judge. Under his initial the date is written as 20-6-86. This date is obviously incorrect. It is possible that instead of 20-6-86 he ought to have written 20-6-88 because the final arguments in this case were heard on 20-6-88. When the final arguments were beard the Addl. Sessions Judge marked this FSL report as mark I without bringing to the notice of the accused that he is marking this document, without giving an opportunity to the accused to challenge the FSL report and without granting him any opportunity to rebut the report of the FSL. The learned Additional Sessions Judge should not have relied on this document and because he has relied over it the entire judgment becomes bad in law. Therefore, great prejudiceness has been caused and to the accused on this very ground the judgment is liable to be set aside. It creates suspicion in the establishment of the case against the accused and benefit of doubt always goes to the accused.
7. In view of my above observation I find that the prosecution has not established the case against the accused appellant beyond reasonable doubt. The conviction is, therefore, cannot be maintained.
8. As a result, the appeal is accepted. The appellant is not found guilty Under Section 8/18 of the N.D.P.S. Act and he is acquitted of this offence. The appellant is in jail. He be set at liberty forthwith, if not required in any other case.