Judgment:
O.P. Bishnoi, J.
1. The appellants-Balvinder Singh and Jaimal Singh have filed this appeal against the judgment dated 23-12-1999 by the Special Judge, N.D.P.S. Act cases, Hanumanagarh, whereby both were found guilty under Sections of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the N.D.P.S. Act'), Act and each one was awarded 12 years' rigorous imprisonment along with fine of Rs. 1,25,000/- each. In default of payment of fine, they have been ordered to further undergo rigorous imprisonment for a period of 2 years.
2. The facts of the case, in brief, are that the Deputy Superintendent of Police Circle Nohar, District Hanumanagarh allegedly received a secret information on 4-9-1997, according to which, the accused persons were likely to cross the Ramgarh-Balwala area with illicit opium, which they were to carry to Punjab. Consequently the police party headed by the Deputy Superintendent of Police P.W. 11 Sawai Singh Godara, made a 'Nakabandi' and stopped the appellants who came on a Scooter No. PBO-3A-5371 and the appellants were told that there was an information against them, as Stated above. They were given the option to get themselves searched by a Gazetted Officer or a Magistrate but they agreed for the search by the Police. Thereupon the search was made. Nothing incriminating was found on their persons but in the 'dickey' of the scooter, four bags containing opium were recovered. All the four bags containing opium weighted 5.970 kgs. 50 Grams opium from each bag was taken out and was sealed separately. The recovery memo and other documents were prepared, the accused persons were arrested and the FIR was lodged at Police Station, Nohar. Ultimately, the challan was filed in the said Court and both the appellants were charged for the said offence. Both pleaded not guilty. Eleven witnesses were examined by the prosecution and no defence evidence was led. The learned trial Court heard the arguments and delivered the judgment as stated above, against which, this appeal has been filed.
3. I have heard the learned counsel for the appellants and learned Public Prosecutor for the State and I find that the whole story is highly suspected and it is difficult to sustain the conclusion drawn by the learned trial Court. It is highly suspected that the samples which were allegedly taken on the spot on 4-9-1997 reached the FSL at Jaipur intact. In this respect, P.W. 6 Gopal Ram and P.W. 8 Astali Khan are most important witnesses.
4. P.W. 8 Astali Khan has stated that on 4-9-1997 he was Malkhana incharge of Police Station, Nohar and 4 samples weighing 50 grams each were deposited by the Deputy Superintendent of Police Sawai Singh Godara in the Malkhana. He has further stated that on 6-10-1997 he himself delivered all the 4 packets to P.W. 6 Gopal Ram for taking them to Forensic Science Laboratory at Japur. However, P.W. 6 Gopal Ram has made a clear denial that any packets were given to him on 6-10-1997. He has stated that actually he was delivered two packets on 7-10-1997 which he took to the FSL at Jaipur and deposited there on 8-10-1997. He was given a suggestion, in the cross-examination, to the effect that the samples were not delivered to him on 7-10-1997 but he insisted that 7-10-1997 was the date on which the packets were given to him. P.W. 8 Astali Khan was also cross-examined but he remained firm with the statement that actually he delivered the packets on 6-10-1997 to P.W. 6 Gopal Ram. In this way, we find that the custody of the packets between 6th and 7th October, 1997 has become highly suspected. Not only this, the statement of Astali Khan Ex. D/-5 which was recorded under Section 161, Cr.P.C. discloses that Astali Khan actually was not the person, who regularly held the charge of the 'Malkhana.' According to Ex. D/-5, the 'Malkhana' incharge was another Head Constable Pitha Ram Ex. D/5 states that Astali Khan was incharge of Malkhana between 16-7-1997 and 17-9-1997. Thus, Astali Khan was not the incharge of 'Malkhana' after 17-9-1997. According to Ex. D/5 the packets in question were in the custody of Pitha Ram and on 7-10-1997, Pitha Ram delivered them to Gopal Ram, In the cross-examination, P.W. 8 Astali Khan has described this part of his statement, as false. Pitha Ram who was the regular incharge of 'Malkhana' has not been examined as a prosecution witness, Needless to say that in view of the above discussion, the whole case becomes highly suspected and concocted,
5. According to the prosecution story, 5O Grams opium was taken out as sample from each bag and thus, the four samples contained SO grams net opium each. However, the FSL report Ex. P/18 goes to show that the packets when opened, contained far less opium. They contained 33.1, 33.5, 35.5 and 35.8 grams opium respectively and this further strengthens the defence arguments that the samples did not remain intact. In the case of Gopal v. State (RCC, October, 1998 page 417) (sic) 30 grams opium was taken out as sample and at the FSL, when weighed was found to be 23 grams. Thus, there was a difference of 7 grams only and this Court found it fatal for the prosecution. In the instant case, the aforementioned weight includes the weight of the polythene bag, in which, the opium was sealed. Thus, the net weight was even less.
6. In such cases, the recovery officer is required to seal the samples on the spot with his personal seal and under Section 55 of the N.D.P.S. Act, the packets are to be resealed at the Police Station prior to their deposit in the Malkahana. In this case, the Malkhana incharge does not say that the compliance of Section 55 was made.
7. Further, I find that there is no independent corroboration of the alleged recovery. The two independent 'MOTBIRS' P.W. 1 Brijmohan and P.W. 4 Jaimal have not supported the prosecution story about the alleged recovery from the appellant and both were declared hostile. In a serious case like this in which the minimum sentence provided is 10 years rigorous imprisonment and a fine of Rs. 1,00,000/-, it is desirable that the prosecution case about the recovery should be supported by some independent evidence, Without slightest independent corroboration it is not safe to convict a person in such a serious case.
8. So far as, the compliance of Section 57 of the Act is concerned, P.W. 9 Ramjas, S.H.O., Police Station, Nohar has stated that the detailed report Ex. P/18 under Section 87 of the N.D.P.S. Act was sent by him to the Superintendent of Police. I find that the testimony of P.W. 9 Ramjas does not establish that the report was actually sent, No person has been examined to establish that he took away the said report to the Superintendent of Police or to any other higher police official. Nor Ramjas makes mention that anybody was sent by him with the report, It is addressed to the Superintendent of Police with copies to the Addl. S.P. and the Deputy Superintendent of Police, However, no dispatch numbers are given to suggest that actually it was sent to the three police officers, P.W. 5 Sishpal Constable has been examined in respect of sending the report under Section 42 of the N.D.P.S. Act but nobody has been examined to prove that report Ex. P/16 was actually sent to the higher police officers.
9. The result is that the appeal is allowed. The judgment dated 23-12-1999 finding the appellants gullty is set aside. Both the appellants are acquitted of the charges. Amount of fine, if deposited by them, shall be refunded to them.