Mohd. Shamim ( 1 ) THIS appeal is directed against the judgmentand order dated 26/05/1992 passed by Shri R. L. Chugh, Additionalsessions Judge, Delhi, whereby he found the accused Gurcharan Singh aliaschanni (hereinafter referred to as the appellant No. 1 for the sake of convenience ). guilty under Section 21 of the Narcotic Drugs and Psychotropicsubstances Act, 1985 (for short the Act), and under Section 353/34 of theindian Penal Code. He sentenced him to undergo rigorous imprisonment forten years and to pay a fine of Rs. one lac under Section 21 of the Act. Incase of his failure to clear the fine he was further directed to undergo simpleimprisonment for one year. He was further sentenced to undergo rigorousimprisonment for two years and to a fine of Rs. one thousand under Section353/34 of the Indian Penal Code. In default of payment of fine he wasfurther directed to undergo simple imprisonment for ore month. Accusedavtar Singh (hereinafter referred to as the appellant No. 2 for the sake ofbrevity) was ordered to be released on probation on his furnishing a personalbond in the sum of Rs. 5. 000. 00 with one. surety in the like amount to keeppeace and be of good behaviour for a period of two years under Section353/34 of the Indian Penal Code. Aggrieved and dis-satisfied with the saidjudgment and order the. appellants have approached this Court. ( 2 ) LBN Khaldun an eminent historian who lived and trod this terrafirma like an ordinary mortal amongst the homosapiens, yet left his footprints on the sand uftime,has observed. "the rule of distinguishing what istrue from what is false in bistory is based on its possibility or impossibility"in a given situation. The above principle mutatis mutandis is also applicableto the cases which the Courts are called upon to deal with, with the onlydistinction that a historian 16 concerned with unearthing the truth in regardto the events which took place in the hoary past, while the Judges have toascertain and cull the truth from facts and events in presenti. ( 3 ) WITH the above exordium let us now see and try to find out as to whether the case of the prosecution as unfolded through the report undersection 173 Cr. P. O. , F. I. R. (Ex. PW7/a), Ruqqa (Ex. ( 3 ) WITH the above exordium let us now see and try to find out as to whether the case of the prosecution as unfolded through the report undersection 173 Cr. P. O. , F. I. R. (Ex. PW7/a), Ruqqa (Ex. PW7/b) and variousother documents is plausible or probable and appeals to a reasonable prudentas a true narration of facts and could have happened in the way and manneras it is alliged to have taken place. This is a condition precedent for theprosecution to bring home the guilt to the accused. In case it fails in itsprimary duty, the Courts need not go any further and need not make anymore inquiry inasmuch as the said case is liable to be flung to the winds onthis short ground alone. ( 4 ) THE case of the prosecution was set up in the FIR (Ex. PW7/a) andruqqa (Ex. PW7/b) is that Shri Shakti Singh (since deceased) had had aninformation that appellant No. 1 who was a resident of J. J. Colony, Wazirpur, Delhi, was dialing in smack. He developed the said information andcame to the conclusion that in case someone was sent as a decoy customer then he was likely to sell the smack. Shri Shakti Singh deceased contactedacp Crime Brands and formed a raiding party on 29/07/1987 on hisinstructions which consisted of Inspector Shakti Singh (Crime Branch), SIMohinder Singh. SI Manmohan, SI Bal Kishan, ASI Prithvi Singh, who wasarmed with a revolver, (later on promoted as Sub Inspector), HC Jagdish,constable Ramesh, Constable Surinder Singh and PW3 Rajbir Singh, a pistalemployee. Shri Rajbir Singh (PW3) was assigned the role of a decoy customer. He was apprised of the facts of the present case. He was handed over asum of Rs. 6000. 00 vide entrustment memo Ex. PW3/ A. The above raidingparty set out for the house of appellant No. 1 situated as alluded to above. Efforts were made to include some other members of the public in the raidingparty. In this connection, Shri Shakti Singh asked five or seven passers by tojoin the raiding party, but none of them agreed and left without even disclosing their names and addresses. Meanwhile, SI Bhup Singh, ASI Ram Kumarof PS Ashok Vihar who were on their usual patrol duty of the area of PSAshok Vihar also met the raiding party. They were also requested to jointhe raiding party and they acceded to the request. Meanwhile, SI Bhup Singh, ASI Ram Kumarof PS Ashok Vihar who were on their usual patrol duty of the area of PSAshok Vihar also met the raiding party. They were also requested to jointhe raiding party and they acceded to the request. ASI Prithvi Singh (PW8)was instructed to act as a shadow witness to hear the proposed talks inbetween the appellant No. 1 and. the decoy customer PW3 Rajbir Singh andto give the appointed signal. The above raiding party reached the housebearing No. J-111/90. J. J. Colony. Wazirpur, Delhi. PW3 Rajbir Singh andpw8 SI Prithvi Singh were sent to the second floor of the abovesaid house asthe same was in occupation of the appellant No. 2- The other members ofthe raiding party took positions at different places near the said house on theroad. The raiding party heard a din and uproar from the side of the residencealluded to above. They also heard the sound of firing emanating from thesaid house. On hearing the same to entire raiding party got alert and rushedto the place of occurrence. Meanwhile, PW3 Rajbir Singh i. e. the decoycustomer jumped from the second floor of the house adverted to above in thelane by the said of the said house and handed over a packet of smack toinspector Shakti Singh. All the members of the raiding party reached thesecond floor. They saw PW8 SI Prithvi Singh with a revolver in one of hishands and he was holding the appellant No. 1 in the other hand with aplaster on his right foot. The raiding party further saw two or three personsrunning away from the place of occurrence through the nearby roofs. SIPrithi Singh showed the money to convict Gurcharan Singh alias Channi. Heimmediately took out a packet from underneath his bedding and handedover the same to PW3 Rajbir Singh. When PW3 Rajbir Singh tenderedrs. 6000. 00 to Gureharan Singh appellant. He demanded further money fromhim. It was at this juncture that SI Prithvi Singh (PW8) disclosed his identityand showed the appellant No. 1 his identity card. On hearing this Gureharansingh raised an alarm "catch bold, catch hold" whereupon two or threepersons who were very sturdy and stout appeared at the scene from theadjoining house. One of themwas aimed with a pistol like thing. The otherone was armed with a knife. The third one was empty handed. On hearing this Gureharansingh raised an alarm "catch bold, catch hold" whereupon two or threepersons who were very sturdy and stout appeared at the scene from theadjoining house. One of themwas aimed with a pistol like thing. The otherone was armed with a knife. The third one was empty handed. They wantedto assault SI Prithvi Singh whereupon he put appellant No. 1 in front of himand in between him and the assailants. SI Prithvi Singh fired thrice in his selfdefence. He gave a signal to PW3 Rajbir Singh that he should jump downalongwith the packet of smack and the money and join other members of theraiding party. Appellant No. 1 handed over the aforesaid sum of Rs. 6000. 00and two or three packets of smack to the abovesaid persons who came to hisrescue on hearing his alarm. However, all of them succeeded in making goodtheir escape. Inspector Shakti Singh and other members of the raiding partychased the abovesaid persons. However, they succeeded in apprehendingonly Avtar Singh i. e. appellant No. 2. resident of J. lll/89, J. J. Colony,wazirpur, Delhi. The other persons i. e. Rajinder Singh alias Tarvinder Singhand Mahinder Singh could not be apprehended as they made good theirescape. On receipt of the information SI Raghbir Singh, ACP, Crime Branch,arrived at the spot. The smack which was seized was weighed whereupon itwas found to be I Kg. It was seized vide Ex. PW3/c. 10 gram of smackwas separated and taken out for the purposes of sample. The sample smackand the remaining smack were sealed in two separate packets. Both thepackets were sealed with the seal of ssd . Form CFSL was filled up. Theseal after use was handed over to SI Mahender Singh. Meanwhile, SHO,ashok Vihar known as Ram Prashad (PW6) also reached there. The entirefacts with regard to the present case were narrated to him and after havingsatisfied himself with regard to the correctness of the said facts put his sealwith the impression of rp on the said two packets. Later on it transpiredthat a boy and a lady i. e. PWI Sanjay and PW2 Smt. Vidyawati sustainedinjuries during the course of the aforesaid firing. Both the above namedappellants were arrested at the spot. A report was sent to the Police Stationfor registration of a formal FIR whereupon the formal FIR was recordedvide Ex. PW5/a. The sample was sent to CFSL for chemical analysis. Both the above namedappellants were arrested at the spot. A report was sent to the Police Stationfor registration of a formal FIR whereupon the formal FIR was recordedvide Ex. PW5/a. The sample was sent to CFSL for chemical analysis. Theresult of the analysis is Ex. PW7/a. The Chemical Examiner was of the viewthat the alleged sample smack gave positive test for heroin. ( 5 ) NOW, the most polemical question which comes to the tip of thetongue is as to whether the occurrence as narrated above can besaid to be a probable and plausible version of the case of the prosecution. Itis manifest from above that PW3 Rajbir Singh was handed over only a sumof Rs. 6,000. 00. He is reported to have offered the said amount to the appellant No. 1 who accepted the same without any bargain and handed over apacket of smack which contained I Kg. of heroin. It is in the statement ofpw8, SI Prithvi Singh during the course of cross-examination that thesmack in those days was being sold at Rs. 40,000. 00 per Kg. Thus, no reasonable and prudent man or for that matter an alleged dealer in smack would have parted with I Kg. of heroin for a paltry sum of Rs. 6,000. 00 which could have fetched only 150 gms. of smack. ( 6 ) FURTHERMORE, there is no mention of the talks which are alleged tohave ensued in between PW3 Rajbir Singh and appellant No. 1, Gurcharansingh. It appears from the report Ex. PW7/b as if Gurcharan Singh aliaschanni held himself in readiness to hand over a packet of I Kg. of heroinwhosoever approached him. Thus, the prosecution version to say the least,appears to be a ludicrous one. ( 7 ) A close scrutiny of Ex. PW7/b and Ex. PW5/a further revealsthat there is no recital with regard to the pre talks signal which wasrequired to be given by the shadow witness i. e. SI Prithvi Singh, PW8. ( 8 ) THERE is another aspect of the matter. There is a recital inex. PW7/b that PW3 Rajbir Singh on receipt of signal from PW8, SI Prithvisingh jumped from the second floor of the abovesaid house alongwith themoney and the smack. It implies thereby that no money was handed over toappellant No. 1 i. e. Shri Gurcharan Singh yet he parted with the smack. Furthermore. There is a recital inex. PW7/b that PW3 Rajbir Singh on receipt of signal from PW8, SI Prithvisingh jumped from the second floor of the abovesaid house alongwith themoney and the smack. It implies thereby that no money was handed over toappellant No. 1 i. e. Shri Gurcharan Singh yet he parted with the smack. Furthermore. PW3 Rajbir Singh is reported to have jumped from the secondfloor with the packet of smack yet he is not alleged to have sustained anyinjury. To my mind, this could not have happened to a man of flesh andblood. This could have been possible had PW3 Rajbir Singh would have beensomething more than a man i. e. either a jinn or a superman like Hercules. Such things could have happened in a fairy land or in a fairy tale. Such typeof things are not possible to have happened in this real world inhabited byhuman beings of flesh and blood. In view of the above, I am of the view thatthe prosecution version does not inspire any confidence and it is liable to bediscarded and ignored on this short ground alone. ( 9 ) THERE is another aspect of the matter. PW3 Rajbir Singh who isthe star witness of the case of the prosecution has nowhere asseverated evena single word in favour of the case of the prosecution. Even on being crossexamined he failed to identify the appellants in the Court room. He hasfurther asserted that lie did not sign any piece of the paper on the date ofthe occurrence. According to him, the police called him later on i. e. the nextday after the occurrence and asked him to sign three or four papers. Hefurther goes on to state that he did not make any supplementary statement. He has further denied the suggestion that ASI Prithvi Singh, PW8 asked himto jump down from the second floor alongwith Rs. 6,000. 00 and the smack. ( 10 ) THE next most material and important witness in the presentcase is PW8, SI Prithvi Singh. Curiously enough even he has failed to supportthe case of the prosecution in tola. According to him he met appellant No. 1i. e. Shri Gurcharan Singh on the-first floor. Every thing is alleged to havehappened as per his statement on the first floor. Admittedly, the case of theprosecution as stated in the Ruqqa, Ex. Curiously enough even he has failed to supportthe case of the prosecution in tola. According to him he met appellant No. 1i. e. Shri Gurcharan Singh on the-first floor. Every thing is alleged to havehappened as per his statement on the first floor. Admittedly, the case of theprosecution as stated in the Ruqqa, Ex. PW7/b is that the raid was laidagainst the appellant No. 1 on the second floor. He is alleged to have beenentrusted to hear the talks and to reproduce the same and to give the prefixed signal. Yet, astonishingly he is conspicuously silent with regard to theabovesaid two important facts- Thus his statement is contradictory to andinconsistent with the statement of PW3 Rajbir Singh. ( 11 ) PW6 Inspector Ram Prasbad has deposed to the fact that hereached the spot after the seizure and put his seal on the two packets withthe impression of rp . However, his very much doubtful inasmuch as nodocument bears his signatures i. e. Ex. PW3/b, personal search memo inrespect of the accused Gurcharan Singh, Ex. PW3/e i. e. the personal searchmemo in regard to the search of S. Avtar Singh. Moreover, the occurrence inthe instant case is admittedly dated 29/07/1987 yet the statement of PW6was recorded on 1/10/1987 i. e. nearabout two months after the occurrence and that, too, on an objection being raised by the Prosecution Branch. This all casts a suspicion on the entire case of the prosecution and renders it nugatory. ( 12 ) LEARNED Counsel for the appellants Mr. K. . K. Sud has vehemently contended that there is no compliance in the instant case with themandatory provisions of the Act i. e. Suctions 52, 55 and 57. The learnedcounsel has in this connection led me through the provisions of Sec. 52 (3xa),55 and Section 57 of the Act. Section 52 (3) (a) reads as under :- "52. Disposal of persons arrested and articles seized. (2) Every person arrested and article seized under warrant issuedunder Sub-section (1) of Section 41 shall be forwarded withoutunnecessary delay to the Magistrate by whom the warrant wasissued. (3) Every person arrested and article seized under Sub-section (2)of Section 41, Section 42, Section 43 or Section 44 shall beforwarded without unnecessary delay to- (a) the officer-in-charge of the nearest police station, or (b ). . . . . . . . . . . . (4 ). . . . . . (3) Every person arrested and article seized under Sub-section (2)of Section 41, Section 42, Section 43 or Section 44 shall beforwarded without unnecessary delay to- (a) the officer-in-charge of the nearest police station, or (b ). . . . . . . . . . . . (4 ). . . . . . . . . . . . . . . "55. Police to take charge of articles seized and delivered. An officer-in-charge of a police station shall take charge of andkeep in safe custody, pending the orders of the Magistrate, allarticles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow anyofficer who may accompany such articles to the police station orwho may be deputed for the purpose, to affix his seal to sucharticles or to take samples of and from them and all samples sotaken shall also be sealed with a seal of the officer-in-charge of the police station. ""57. Report of arrest and seizure. Whenever any personmakes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report ofall the particulars of such arrest or seizure to his immediate officialsuperior. " ( 13 ) THE learned Counsel on the basis of the above has contendedthat there is no compliance with the abovesaid mandatory provisions of law inasmuch as the presence of Inspector Ram Prashad, PW6, is very muchdoubtful. Furthermore, there is nothing in his statement even remotely tosuggest that he seized the said articles and kept them in his custody at thepolice station. I find myself in perfect agreement with the contention of thelearned Counsel for the appellants. Admittedly, Inspector Ram Prasbad hasnowhere alleged that the said articles which are alleged to have been recovered from the possession of the appellants were taken possession of and hekept them in his safe custody at the police station till the further orders ofthe Magistrate. There is similarly no compliance with the provisions ofsection 57 of the Act inasmuch as there is no evidence to show that theinformation with regard to the seizure of the smack and arrest of accusedpersons was ever given to the higher ups. ( 14 ) THERE is another side of the picture. There is similarly no compliance with the provisions ofsection 57 of the Act inasmuch as there is no evidence to show that theinformation with regard to the seizure of the smack and arrest of accusedpersons was ever given to the higher ups. ( 14 ) THERE is another side of the picture. It is manifest from thedocuments adverted to above that none of them bears the signatures ofinspector Ram Prashad, PW6 which casts doubt with regard to his presenceat the spot. A duty, as is evident from above, has been cast on the shouldersof the Officer-in-charge of the Police Station, to seize the articles recoveredunder the Act and to keep them insafe custody till the orders of themagistrate. Thus, the perfunctory manner in which he dealt with the saidarticles can hardly be commended. He must have put his signatures on eachand every memo which were prepared at the spot. The above view was givenvent to in Shah Ashu Jaiwani v. The State of Maharashtra, 1951-75, Cr. A. No. 119 of 1971, Head Note B. . . . . . . "prevention of Food Adulteration Act,1954-Section 10 (7)-lack of signatures of witness on relevant documentsprepared at the time of taking sample-violation, of statutory provision ofsection 10 (7)- effect of. "the signatures of witness are absent on all thosedocuments on which they would have been present if Section 10 (7) of the Act had been strictly complied with. It is more likely that the witness wasnot there at all to witness the occurrence. If that be so, the evidence of theprosecuting Food Inspector who said witness was there, cannot be implicitlyrelied upon in this case. It is quite unsafe to base the appellant s convictionon such shaky foundations. " ( 15 ) THE provisions of Section 10 of the Prevention of Food Adulteration Act are in pari materia with the provisions of the Act inasmuch astheir compliance is a must. Hence, the above observations are pari passuapplicable to the facts and circumstances of the present case. It is a wellknown principle of jurisprudence that if a thing is required to be done inaccordance with certain law and rules, it must be done either in that manneror not at all. ( 16 ) THE defence as set up by the appellants in their statements undersection 313 Cr. P. C. is that the appellant No. 1 was sitting in a park at about6. ( 16 ) THE defence as set up by the appellants in their statements undersection 313 Cr. P. C. is that the appellant No. 1 was sitting in a park at about6. 00 p. m. with a plaster on his leg alongwith appellant No. 2 Avtar Singh. Some police officers tried to forcibly lift the appellant No. 1 from the parkand on hearing the commotion a good number of members of the publiccollected there. The police party in order to frighten the public fired fromtheir service revolver as a corollary whereof PW1 Sanjay and PW2 Smt. Vidya Wati were injured. The police thus implicated them in the presentfalse case in order to save their skin. PWI Sanjay has very categoricallystated in his averment on oath before the learned lower Court that the bulletwhich had hit him was fired by a police officer. Similarly, PW2 Smt. Vidyawati has not at all supported the case of the prosecution that she sustainedinjuries from the bullets which came from the side of the house of the appellants. She has pretended her ignorance in regard to the above facts. It is wellestablished principle of law that the accused persons are under no obligationto substantiate their defence version. They are simply to come forward witha probable and plausible version which fits in with the circumstances of aparticular case. I feel that the appellants in the instant case have put forwarda probable and plausible version of their defence which is sufficient enoughto cut at the very root of the case of the prosecution. ( 17 ) THE learned Standing Counsel, Mr. P. S. Sharma, has concededwith commendable fairness on his part that the prosecution witnesses havefailed to substantiate the case of the prosecution under Sections 332/353/186and 307 of the Indian Penal Code. In view of the above I need not refer tothe prosecution evidence on the said points. However, the learned Standingcounsel has contended that the PWs, ASI Rameshwar Dayal, PW5, Inspectorram Prashad, PW6, Inspector Jai Singh, PW7, and SI Prithvi Singh, PWS,have fully proved the case of the prosecution under Section 21 of the Act. According to him the prosecution version cannot be ignored simply on theground that it has been substantiated and proved by the police officers only. According to him the prosecution version cannot be ignored simply on theground that it has been substantiated and proved by the police officers only. The learned Counsel in this connection has led me through the observationsa Single Judge of the Rajasthan High Court as reported in Ronald Markasgoonthar v. State of Rajasthan, 1988 (3) CRIMES 737 . . . "police Officers arecitizens and the public servants. Generally, it is expected that they performtheir duties faithfully and sincerely. A presumption under Section 114 of theevidence Act can be drawn that they perform their duties in the ordinarycourse of business faithfully and sincerely. Their evidence cannot be discarded only on the ground that they are Police Officers. However, a note ofcaution will always have to be kept in mind looking to the law of the land;particularly Section 25 of the Evidence Act and Section 161, Cr. P. C. " ( 18 ) THERE is no dispute with the said proposition of law that thestatements of the police witnesses are entitled to the same weight and thesame consideration which is attached to the statement of a member of thepublic. However, the impugned statement must inspire, confidence to be relied upon in a particular case, I have already observed above that the evidenceled by the prosecution in the instant case does not inspire any confidence. Thus, it is liable to be discarded and ignored. ( 19 ) IN the circumstances stated above the appellants are entitled tosucceed. The appeal is allowed. The judgment and order dated 26/05/1992whereby the appellants were convicted are hereby set aside. The appellantno. 1 be set at liberty at once in case he is not wanted and required in anyother case.