Judgment K. S. LODHA, J. ( 1 ) THE appellant Hanuman has been convicted under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to ten years R. I. and a fine of Rs. one lakh by the learned Addi. Sessions Judge, Barmer by his judgment dated 18/2/1987. He has come up in appeal. ( 2 ) THE brief fact giving rise to this appeal are that on 28-2-86, Baney Dan, S. H. O. , Chohatan along with Kishore Singh, Head Constable and Moti Singh, Sang Singh, Utama Ram, Constables to Patrol went on the road leading towards Kalnore. While they were sitting on a culvert near the mines behind the hilloc on this road they saw a person coming from the side of shok carrying a bag in his hand. When the man came near and saw the police officer there, he took to his heels. The police officer followed him and captured him. He gave out his name as Hanuman and on the search of his bag, opium was found wrapped in a yellow poly thin paper. It was weighed and came to be 1 kilo and 200 grams. They had took out a sample weighing about 30 grams and sealed the same as also the remaining opium in a different packet along with the diary which is said to be found along with opium in the bag. The accused was arrested and brought to the police station. The case was registered and after completing the investigations a challan was put up against the accused under sections 17 and 18 of the Act. It may also be mentioned that the sample sent for chemical examination was found to be of opium. At the trial, since the accused denied the offence, the prosecution examined seven witnesses. The accused was then examined and he also examined three witnesses in defence. After hearing the learned P. P. and the learned counsel for the accused, the learned Addi. Sessions Judge convicted and sentenced the appellant as aforesaid. ( 3 ) I have heard the learned counsel for the appellant and the learned P. P. and have gone through the record. After hearing the learned P. P. and the learned counsel for the accused, the learned Addi. Sessions Judge convicted and sentenced the appellant as aforesaid. ( 3 ) I have heard the learned counsel for the appellant and the learned P. P. and have gone through the record. In the first place, the learned counsel for the appellant tried to urge that since the accused had been arrested and searched by a person not authorised under section 42 of the Act, the whole proceedings were vitiated. However, a question further arose whether the authorisation of any officer of any of the departments mentioned in section 42 is necessary under section 42 before he can act under section 43 of the Act as the two provisions appear to be different and independent. The learned counsel wanted some time to obtain the copy of the bill on the basis of which the act was framed and to ascertain the reasons and purpose of the different sections of the Act and, therefore, the case was adjourned on 20-8-87. One more adjournment was granted on 27-8-87 and then the case has now come up today. The learned counsel has however, submitted that he has not been able to lay his hands on any material which may expressly throw any light on the intent and purpose of the legislation in enacting sections 42 and 43 of the Act and he has, therefore, given up that argument. On the merits of the case, the learned counsel for the petitioner has urged that the whole story put forward by the prosecution is shrouded in mystery and doubts. The only evidence is that Shri Baney Dan, S. H. O. and his subordinates Kishore Singh, Moti Singh and Utama Ram and the rests of the witnesses are only those who are said to have carried the sample from the police officer to the chemical examiner from time to time. No independent witness was present nor sought to be called at the time of the said recovery and even after the first Information report had been lodged by Baney Dan after the alleged recovery the further investigations were also not made by any independent superior officer. No independent witness was present nor sought to be called at the time of the said recovery and even after the first Information report had been lodged by Baney Dan after the alleged recovery the further investigations were also not made by any independent superior officer. He placed reliance upon Bhagwan Singh v. The State of Rajasthan, in support of his contention that in the absence of independent witnesses the bare testimony of the police officers should not be relied upon if there are suspicious circumstances appearing in the case. He also placed reliance upon Rattan Lal v. State2 and Swarna v. State of Punjab3. On the other hand, the learned Public Prosecutor hits supported the decision of the learned Addi. Sessions Judge and has urged that the evidence of the prosecution witnesses cannot be rejected merely on the ground that they are police officers. He placed reliance upon Jeewan Prakash v. State of Maharashtra4 and Kanwar Lal v. State5. ( 4 ) I have given my careful consideration to the rival contentions. It may at once be stated that the prosecution story as put forward by the prosecution does not appeal as true and trustworthy. The learned Addi. Sessions Judge does not appear to have appreciated the salient features of the matter. Two things clearly stare in the eye when the prosecution evidence is looked into. The one is that although the occurrence is said to have taken place on 28-2-86 at 7 p. m. and the first information report was lodged on that very day at 9 p. m. by the 8. H. 0. Baney Dan himself, the copy of the first information report reached the court as late as on 3-3-86. The other I, that even though independent witnesses could have been called but no effort has been made by the S. H. O. to obtain the same. This face assumed further importance when we find that the copy of the first information report had not been sent to the court in time. The three witnesses Baney Dan, P. W. 7; Moti Singh, P. W. 4; and Kishore Singh, P. W. 2 have, of course, stated the facts which had been set out on the basis of the first Information report. The three witnesses Baney Dan, P. W. 7; Moti Singh, P. W. 4; and Kishore Singh, P. W. 2 have, of course, stated the facts which had been set out on the basis of the first Information report. According to there three witnesses, It was when they were sitting on the culvert near the mines, that they saw the accused coming and they pursued him and caught him. This clearly shows that the mines were not far away and it is not improper to conclude that if police party was keen to act some independent witnesses some persons must have been available at the mines. Then it is also admitted by all these witnesses that the refugee camp is also not far away from the place where the accused is alleged to have been caught. According to Utama Ram P. W. 3, the relief camp was about a Kilometer away from the place where the accused was caught. Kishore Singh has, of course, denied the fact that the refugee camp has 10 to 15 passages away from the culvery but he has not stated the exact distance which gives rise to an Inference that the refugee camp was not very far away. Further the police station itself was not very far away from the place and according to the first information report it was about 2 kilometers away. The accused could very well have been taken to the police station along with his bag and there the recovery could have been made in the presence of the independent witnesses. This had not been done and. therefore the only evidence left is that of the police officers In this connection the following observations of the Honble Supreme Court in Bhagwan Singhs case (supra) are pertinent: The entire case of the prosecution rests solely on the testimony of Head Constable Ram Singh and four other police constables. There is not a single independent witness to depose to the offer of bribe by the appellant. The bundle of currency notes of 510 was, according to the prosecution, seized by Head Constable Ram Singh under seizure memo Ex. There is not a single independent witness to depose to the offer of bribe by the appellant. The bundle of currency notes of 510 was, according to the prosecution, seized by Head Constable Ram Singh under seizure memo Ex. p. i but the only persons who signed as Panch witnesses to this seizure were Head Constable Ram Singh and his subordinate police constables Head Constable Ram Singh did not make any effort to get independent respectable witnesses in whose presence of the seizure could be made. The time when the seizure was made was according to the prosecution a little after 5 a. m. in the morning. Head Constable Ram Singh could have easily sent one of the four police constables accompanying him to a nearby village in order to get some independent respectable witnesses. If, for any reason that was not possible be could have taken the appellant and Ram Raj together with the cart to the police station and there, made a seizure memo in the presence of independent reasonable Panch witnesses. In that case also there were other circumstances making the prosecution case doubtful and when the whole case rested on the testimony of police officer the Honble Judges of the Supreme Court refused to rely on them, So also in the case before the Delhi High Court in Rattan Lals case (supra), it has been observed that: In the case in hand the seizure and the arrest have been made under section 43 of the NDPS Act. Admittedly, no public witness was involved in the matter of search and seizure as envisaged by subsection (4) of section 100 Cr. P. C. The explanation offered is that public witnesses were requested but they declined to co-operate. My experience is that this explanation is now being offered in all cases. In the circumstances of a particular case it may so happen that for a variety of reasons public witnesses may decline to associate themselves but generally speaking it does not happen if a public witness dickens to cooperate without reasonable cause in spite of an order in writing, to witness the seizure and search, he will be deemed to have committed an offence under section 187 I. P. C. and this had been clearly spelt out in sub-section (8) of section 100 Cr. P. C. In the present case there is a vague explanation that public witnesses were approached but they declined. Neither the name of such witness has been given nor has any order in writing to that effect been preserved, nor it is asserted that a mention about the same has been made in the case diary. Obviously, there is a deliberate attempt to defeat the legislative safeguards. ( 5 ) IT is true that the witnesses cannot be discarded merely on the ground that they happen to be police officers as has been urged by the learned Public Prosecutor supported by the authorities relied upon him but when there are suspicious circumstances staring in the face, and of independent witnesses thought could have been procured have not been put forward and the whole case is sought to be proved by the evidence of those police witnesses who themselves had captured the accused and allegedly recovered the offensive substance the testimony of these witnesses cannot easily be relied upon and this is what the Honble Supreme Court has stated in the latter case reported in Bhagwan Singhs case (supra ). ( 6 ) THE learned P. P. has, of course, tried to explain the delay in submitting the copy of the first information report before the court by saying that second March was a Sunday and the first information report had been despatched from the police station on 1-3-86 itself i. e. the day next to the registration of the first information report but I am not satisfied with this explanation. When the first information report had been sent or is alleged to have been despatched on 1-3-86 from Chohatan, it should not have taken three days in reaching the court at Barmer. In the second place, it should have reached the court on 1-3-86 itself because it was sent through the constable F. C. 666 of police station Chohatan. There is no explanation why it did not reach the court first of March. At this stage it will be pertinent to refer to the defence theory which has been set up in the cross-examination of the very first relevant prosecution witness namely, Kishore Singh. The case of the defence was that as matter of fact the opium have been recovered from two other persons, namely, Kishna Ram and Thakara. At this stage it will be pertinent to refer to the defence theory which has been set up in the cross-examination of the very first relevant prosecution witness namely, Kishore Singh. The case of the defence was that as matter of fact the opium have been recovered from two other persons, namely, Kishna Ram and Thakara. Ram on 24-2-86 but they were let off and the accused had been caught after being called through the police at the police station Chohatan. The possibility of some change in the prosecution story having been introduced during the delay between 1-3-86 and 3-3- 86, therefore cannot be ruled-out. It may also be added that the evidence of the three police witnesses regarding the time of the recovery is also a little discrepant, inasmuch as P. W. 2 Kishore Singh says that it was just little dark when the accused was caught, whereas Utama Ram P. W. 3 states that it was pitch dark (xgjk va?ksjk gks x;k ). ordinarily, such a discrepancy would not be of much consequence but when there are other doubtful circumstances and the case is one which involves a penalty of 10 years and a fine of Rs. 1 lakh, it is the duty of the prosecution to establish the case beyond any reasonable doubt and leave no luring suspicion in the mind or the court. This the discrepancies in the evidence or these police officers cannot be lightly brushed aside. It may also be noted that the falsity of the prosecution case 18 further brought out by this, statement of Utama Ram. Utama Ram says that he had tested the substance which was recovered from the accused and found it to be opium. Although he dearly admits that before that he had never seen or tested opium. Such a statement only discloses the anxiety on the part of these witnesses to try to establish the case which they put forward by giving stereo typed evidence. When Utama Ram had not or tested opium earlier than this occasion, there was no use of his testing the substance recovered from the accused in order to find out whether it was opium or not. ( 7 ) LOOKING to all these circumstances, I am clearly of the opinion that the conviction of the appellant in these circumstances cannot be maintained. ( 7 ) LOOKING to all these circumstances, I am clearly of the opinion that the conviction of the appellant in these circumstances cannot be maintained. ( 8 ) THE appeal is, therefore, allowed, the convictions and sentence of the appellant under section 18 of the Act is set aside. He is in custody and shall be released forthwith, if not required in any other case. Appeal allowed.