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Himachal Pradesh High Court · body

2002 DIGILAW 104 (HP)

SANDEEP KUMAR v. STATE OF H. P.

2002-04-12

M.R.VERMA, R.L.KHURANA

body2002
JUDGMENT M.R. Verma, J.—This appeal has been preferred by the appellant convict (hereafter referred to as the accused/) against the judgment dated 23.2.2001, passed by the learned Additional Sessions Judge, Una, whereby the accused has been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereafter referred to as the Act) and has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine in the sum of Rs. 1,00,000 and in default of payment of fine, to undergo simple imprisonment for a further period of two years. 2. Case of the prosecution against the accused in brief, is that on 15.3.2000, Sub Inspector Ranjit Singh of Police Station, Una (PW-9) alongwith a few other police officials, was on patrolling and detection of crime duty at Purana Hospital Chowk, Una. At about 6.30 p.m., LHC Dalbir Singh (PW-5) informed him that he had received a secret information that the accused was present outside his shop with a view to sell char as. On receipt of this information, PW-9 recorded statement of PW-5 Ex. PA and also recorded the grounds of his being satisfied of the correctness of the information Ex. PB, and sent the same to the Superintendent of Police, Una, whereas ruqua Ex. PA was sent to the Police Station for registration of a case, as a consequence of which, FIR Ex. PH was recorded at Police Station, Una. PW-9 then joined PW-6 and one Ved Parkash as witnesses and proceeded to the spot with a view to conduct search of the accused. When PW-9 reached the spot, the accused was found present there. He informed the accused that he was suspected of being in possession of charas and whether he was willing to give his search to him (PW 9) or wanted to be searched in the presence of a Magistrate or a Gazetted Officer. The accused gave his consent for being searched by PW-9 vide memo Ex. PD in the presence of Bihari Lal (PW-6) and said Ved Parkash. After giving his personal search, PW-9 conducted search of the accused and found a plastic envelope containing charas in the pocket of the pant of the accused. The charas so recovered was weighed and was found 40 grams. PD in the presence of Bihari Lal (PW-6) and said Ved Parkash. After giving his personal search, PW-9 conducted search of the accused and found a plastic envelope containing charas in the pocket of the pant of the accused. The charas so recovered was weighed and was found 40 grams. Two samples of 5 grams each were separated from the bulk of the contraband and thereafter the samples and the remaining charas were separately sealed with seal A and were taken in possession vide memo Ex. PE. Accused was informed of the grounds of arrest vide memo Ex. PR A memo Ex. PG was prepared regarding recovery of other articles in possession of the accused. The case property was then produced before the concerned SHO, who re-sealed the packets with seal R and deposited them in the malkhana. PW-9 prepared the special report dated 7.3.2000 Ex. PC about the circumstances leading to the recovery etc. of charas and forwarded the same to the concerned Superintendent of Police. Sample of charas was then sent for chemical analysis to the Chemical Testing Laboratory where, on analysis by the Assistant Chemical Examiner, the sample was found to be of charas vide his report Ex. PJ. On completion of the investigation, the officer incharge, Police Station, Una, submitted a charge sheet against the accused, who came to be tried by the learned Additional Sessions Judge, Una. The learned trial Judge, on the basis of the evidence on record, found the accused guilty and accordingly convicted and sentenced him as aforesaid. Hence, the present appeal by the accused. 3. We have heard the learned Counsel for the accused and the learned Assistant Advocate General for the State and have also gone through the records. 4. The learned Counsel for the accused had assailed the impugned conviction and sentence on the following grounds: (i) that search of the accused had not been conducted in accordance with law, and (ii) that there is no cogent and reliable link evidence to establish that the case property and samples were dealt with and preserved in accordance with law. Ground No. (i) 5. The contention of the learned Counsel that the search was not conducted in accordance with law is twofold. Ground No. (i) 5. The contention of the learned Counsel that the search was not conducted in accordance with law is twofold. Firstly, it has been contended that no independent and respectable witness of the locality was joined by the police at the time of initiating the process of search of the accused. The police chose two retired police officials who, at the most, can be termed as chance witnesses to witness the process of search and seizure. Secondly, it was contended that there is no cogent and reliable evidence on record to prove that the accused was made aware of his right of being searched in the presence of a Gazetted Officer or a Magistrate and, thus, the mandatory provisions of Section 50 of the Act had not been complied. 6. On the other hand, the learned Assistant Advocate General had contended that two independent witnesses were joined by the police to witness the process of search of the accused and simply for the reason that the witnesses so joined were retired police officials and were not residents of the locality where the search was conducted, does not render the search illegal. It was further contended that the accused was made aware of his right of being searched in the presence of a Gazetted Officer or a Magistrate by giving him the option vide memo Ex. PD and he gave his consent for being searched by the police present on the spot in his own hand. Therefore, the provisions of Section 50 of the NDPS Act were duly complied. 7. It may be pointed out that NDPS Act is not a self contained and complete Code by itself, providing for conducting the investigation including search and seizure etc. Therefore, apart from the provisions in the NDPS Act regarding the manner of detection and investigation of the offences thereunder, Section 51 of the said Act, provides that the provisions of the Code of Criminal Procedure, 1973 (hereafter referred to as the Code) shall apply insofar as they are inconsistent with the provisions of the Act, to all warrants issued and arrests, searches and seizures made under the Act. Thus, the provisions of Section 100 of the Code insofar they are consistent of the provisions of the Act, will apply to the searches conducted under the Act. 8. Thus, the provisions of Section 100 of the Code insofar they are consistent of the provisions of the Act, will apply to the searches conducted under the Act. 8. Sub-sections (3), (4) and (5) of Section 100 of the Code, which are relevant to the present controversy, read as follows:— "(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. (5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it." 9. It is evident from the aforesaid provisions that before making a search, a police officer or any other person about to make search shall call upon two or more independent and respectable inhabitants of the locality where the search is to be conducted and if such witnesses are not available or willing to witness the search, then he will associate such witnesses from the other locality. However, to join the local independent and respectable witnesses as required, may be an irregularity which, by itself, will not vitiate the trial. 10. In Kehar Singh and others v. Sadh Ram, (2000) 1 Cur. However, to join the local independent and respectable witnesses as required, may be an irregularity which, by itself, will not vitiate the trial. 10. In Kehar Singh and others v. Sadh Ram, (2000) 1 Cur. L.J. (H.P.) 304, this Court, while dealing with the effect of non joining of the witnesses from the locality, has held as follows: "The object of the provisions of Section 100(4) of the Code of Criminal Procedure is to ensure an honest and genuine search and to prevent trickery by planting the incriminating article(s) to be found on search. Non compliance of these provisions may weaken the evidence about the search and recovery but it does not in itself affect the validity of the treat or conviction. Thus, it is only a rule of caution which is embodied in Section 100(4) Cr.P.C. providing for associating independent witnesses in conducting a search to further lend assurance to the testimony of the official witnesses but the mere fact that no independent witness has been associated in the search is no ground by itself to disbelieve the official witnesses or to record acquittal of the accused irrespective of the reliability of the statements of the official witnesses." 11. It may, however, be pointed out that the non joining of the witnesses of the locality as required under sub-section (4) supra, though may not, by itself, be sufficient to render the search and consequential recovery illegal but the effect of failure to comply with the provisions of sub-section (4) supra, has to be borne in mind by the courts while appreciating the evidence and should examine the evidence in the light of the fact that the aforesaid provisions have not been complied with while initiating the process of search. 12. The apex Court in State of Punjab v. Balbir Singh, (1994) 3 Supreme Court Cases 299, while dealing with the non-compliance of the provisions of Sections 100 and 164 of the Code, has held as follows: "It, therefore, emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and dependent upon the circumstances of the case, the courts look for independent corroboration. This again depends on the question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions......" 13. In the case in hand, the investigating officer admittedly had the prior information that the accused was in possession of charas for the purpose of sale. It is also admitted case of the prosecution that the search of the accused was conducted at a place where there are so many shops. It is also not in dispute that Bihari Lal (PW-6) and Ved Parkash, who were joined by the police to witness the process of search of the accused are not the residents of the locality where the search was conducted and are retired police officials and even son of PW-6 is a police official. It is admitted by PW-9 that he did not summon nearby shopkeepers before taking search whereas there are shops and he had no cause for not doing so. Thus, it is not a case where the witnesses of the locality were either not available or were not willing to witness the process of search. Out of the two witnesses joined to witness the search, Ved Parkash has not been examined but Bihari Lal (PW-6) has been examined. Though, according to the contents of the ruqua Ex. Thus, it is not a case where the witnesses of the locality were either not available or were not willing to witness the process of search. Out of the two witnesses joined to witness the search, Ved Parkash has not been examined but Bihari Lal (PW-6) has been examined. Though, according to the contents of the ruqua Ex. PA, the aforesaid search witnesses had, per chance, joined the police party at the place where the information about the accused being in possession of char as was received by PW-9 and thereafter, the police party and these witnesses went to the spot but it is not so stated by the material witnesses, PW-9 has not stated that he had joined the aforesaid witnesses to witness the search before he had proceeded to the place of search and recovery from the place where the information was received by him. On the contrary, in his cross examination, he states that witnesses Bihari Lal and Ved Parkash were present "already there. PW-6 on the other hand, does not state that he and Ved Parkash were ever asked by the Investigating Officer to witness the process of search of the accused. In cross examination, he admits that when he and Ved Parkash reached the spot, the police officials were standing near Khokha of the accused (i.e. the place where the accused was found standing and was searched), When they reached there, many persons were already standing there. They enquired from such persons as to what had happened. It simply means that these two witnesses were not joined by the investigating officer as such to witness the search at the place where after receiving the information, he made up his mind to carry out the search of the accused, but they happened to be at the place of search when the police had already reached there and many other persons had assembled there. In these circumstances, keeping in view the legal position as already set out hereinabove, the evidence of the prosecution regarding process of search of the accused requires to be read with care and caution. 14. In these circumstances, keeping in view the legal position as already set out hereinabove, the evidence of the prosecution regarding process of search of the accused requires to be read with care and caution. 14. According to the prosecution, the process of search started with the giving of the option by PW-9 to the accused whether he wanted to be searched before a Gazetted Officer or a Magistrate or by the police present on the spot, as he apprehended that the accused was carrying charas on his person. PW-9 states so and has further stated that thereafter the accused gave his consent by writing in his own hand in the presence of witnesses that he wanted to be searched by the police. He further goes on to state that "memo Ex. PG was prepared, the writings and signatures of the accused are encircled red on Ex. PD." It may be noticed here that PW-9 has nowhere stated that any option memo was prepared by him. In the context, he refers to memo Ex. PG, which is not the option memo but is memo regarding the personal search of the accused. It follows that there is nothing in the statement of PW-9 on the basis of which it can be said that he prepared any option memo. He refers to Ex. PD only with reference to the encircled portion containing the writings and signatures of the accused. What adds to the confusion is his statement in cross-examination that "he prepared the memo and got the signatures of the witnesses after the option was exercised by the accused. I did not prepare it twice, first option then consent. It is correct that the document is prepared by the I.O. is also attested by him. It is correct that first portion of Ex. PD bears my signatures and later portion is attested by me." This statement, apparently, creates confusion as to whether the document in question had been prepared and attested by him or was prepared by the Investigating Officer who had attested it. When the aforesaid statement of PW-9 is read with the statement of PW-6, the confusion is multiplied. According to PW-6, the consent memo is Ex. PB whereas Ex. PB is the intimation letter under Section 42-1 (2) of Act and has no reference and relevance whatsoever to the option allegedly given to the accused. When the aforesaid statement of PW-9 is read with the statement of PW-6, the confusion is multiplied. According to PW-6, the consent memo is Ex. PB whereas Ex. PB is the intimation letter under Section 42-1 (2) of Act and has no reference and relevance whatsoever to the option allegedly given to the accused. He further goes on to state that he "cannot say the memo Ex. PD bears signatures of accused". Then he refers to the searching officer as the SHO who, according to him, got himself searched. S.I. Ranjit Singh (PW 9) admittedly was not the SHO at the relevant time but it was Harnam Singh, S.I. (PW-7). Thus, the statement of this witness indicates presence of another police officer at the spot who was the SHO and he confirms this apprehension when he states in cross examination that when he alongwith Ved Prakash reached on the spot and found the police officials present there "one Sardar in plain clothes was also there". Though, at one stage, he has stated that Ex. PD was written and prepared by S.I. Ranjit Singh, but in the same breath stated that he could not say who wrote the same and he was not in a position to say whether this document was prepared by the accompanying staff. 15. To eliminate any mistake having crept in the English version while recording the statements of the aforesaid material witnesses, we have looked into the Hindi version of their statements, which, in the case or any doubt about the proper recording of the statement of the witness, has to be relied and accepted as the true version. However, even in the Hindi version of the statement of PW-9, he has not stated that he had prepared any option memo and about the preparation of the documents, he has clearly and unambiguously stated that "yeh theek hai ki kagaj I.O. nai taiyar kiye they va nsne tasdik kiye they". It simply means that the memos prepared daring the process of search were prepared and attested by a different person. The learned Assistant Advocate General, despite our query, could not clarify the confusion in a manner to enable us to take a contrary view. 16. We have also perused Hindi version of the statement of PW-6. It simply means that the memos prepared daring the process of search were prepared and attested by a different person. The learned Assistant Advocate General, despite our query, could not clarify the confusion in a manner to enable us to take a contrary view. 16. We have also perused Hindi version of the statement of PW-6. Even in his case, the English version of his statement has not been found to be a case of typographical error or wrong translation. In the Hindi version of his statement, he has clearly and unambiguously stated that about the consent given by the accused for his search by the police, memo Ex. PB was prepared whereas Ex. PB is not such memo but is a report as stated hereinabove. He could not state whether accused had signed Ex. PD. Had this document been prepared in his presence and had the accused written and signed it in his presence, there was no occasion for him to forget about it within a few months, more so, when he referred to the documents only when he had seen these documents and identified the signatures thereon. About the option given, his statement is that the accused was asked whether he wanted to be searched in the presence of a Gazetted Officer or Judge? Had it been put to the accused in his presence whether he wanted to be searched before a Gazetted Officer or a Magistrate, there was no reason for him to state about the alternative authority as the Judge because he is a retired police official and can very well be presumed to be able to distinguish between a Judge and a Magistrate. 17. It may be pointed out that it has been suggested to PW-9 that no option was given to the accused regarding search. This suggestion has been denied by him. It was, thus, incumbent on the trial Judge also to put specific questions to the accused regarding the preparation of the option memo and giving of the consent by the accused for his search by the police. The only question put to the accused in his statement under Section 313 of the Code in this regard is question No. 9, which, alongwith its answer, reads as follows : "Q. No. 9. It is further in evidence that vide memo Ext. The only question put to the accused in his statement under Section 313 of the Code in this regard is question No. 9, which, alongwith its answer, reads as follows : "Q. No. 9. It is further in evidence that vide memo Ext. PG you opted for the search by the police on the spot and you put your signatures Ext. PD thereupon. What do you state? Ans. It is incorrect." 18. It is apparent from the aforesaid question, which is the true translation of the Hindi version of the statement of the accused that Ex. PG had been put to the accused as the option memo whereas it is not so nor Ex. PD are the signatures of the accused as put to him in the question. The accused evidently has thus been deprived of explaining whatsoever confused evidence about the giving of option to him regarding search had come on record. 19. Keeping in view the fact that no independent and respectable witness of the locality was joined by the police at the time of giving of the option and conducting of the search, despite such witnesses being available, but no attempt having been made to join them and for the reasons already recorded hereinabove, it cannot be said on the basis of the statements of PW-6 and PW-9 that the accused was given option to get himself searched in the presence of the Gazetted Officer or the Magistrate, if so desired by him. Thus, there had been non compliance of the mandatory provisions of Section 50 of the Act, which/by itself, vitiates the trial. Ground No. (ii) 20. The learned Counsel for the accused had- argued that there are material contradictions in the statements of the concerned prosecution witnesses as to who took the bulk and the samples of the case property to the SHO and there is no cogent and reliable link evidence to prove that the case property was dealt with and retained as per the procedure to ensure its safe custody and that it was not tampered with. 21. 21. Per contra, the learned Assistant Advocate General, has contended that in view of the statements of PW-1 Manmohan Singh, HC, PW-7 Harnam Singh, PW-9 Ranjit Singh and PW-10 Rakesh Kumar, the prosecution has led complete link evidence, establishing that the case property and the samples were dealt with in accordance with law and were duly preserved, ruling out any likelihood of the tempering. 22. It may be pointed out that link evidence with reference to any psychotropic or narcotic substance seized when found in unlawful possession, is the evidence which provides link in the evidence from the stage of taking the sample till its examination by the Chemical Examiner. This evidence is very material to connect the sample with the remaining case property. The prosecution is duty bound to lead link evidence to prove that the articles/samples sent to the Chemical Examiner were the same which were recovered/were samples of the contraband recovered from the accused and the sample(s) analysed by the Chemical Examiner is in fact of the bulk of the contraband recovered from the accused. In the absence of such evidence where accused has denied recovery of the contraband from his possession or at his instance, he cannot be convicted for possession thereof. 23. In the case in hand, PW-9 has stated that on search of the accused, one polythene bag was recovered from the pocket of the pant of the accused and on opening the said bag, charas was recovered therefrom. Sanjeev Kumar (PW-8) was then summoned with weight and scale and then the charas was weighed and was found to be 40 grams. As per the contents of ruqua Ex. PA after receipt of the information, PW-9 proceeded to conduct the search of the accused at 6.35 p.m. The search was conducted thereafter and the recovery memo was also prepared thereafter. PW-8 Sanjee. v Kumar, however, has stated that his weight and scale were taken by the police at about 3 or 4 p.m. and were returned after half an hour. Thus, he does not corroborate the statement of PW-9 regarding his summoning to the spot nor he supports the prosecution version regarding the time of the search and recovery. He was cross examined for the prosecution with the leave of the Court but nothing favourable to the prosecution or to raise doubt about his statement could be extracted. Thus, he does not corroborate the statement of PW-9 regarding his summoning to the spot nor he supports the prosecution version regarding the time of the search and recovery. He was cross examined for the prosecution with the leave of the Court but nothing favourable to the prosecution or to raise doubt about his statement could be extracted. It is, thus, not understood as to why weight and scale from this witness were obtained by the police about three hours before the search and recovery. 24. PW-9 has stated that the two samples drawn from the bulk of the contraband and the remaining bulk of the contraband were sealed with seal A and it was handed over to Bihari Lai (PW-6). So is mentioned in the recovery memo Ex. PE. However, PW-6 could not produce seal in the Court on the ground that he had lost it somewhere. In the facts and circumstances of the case, this explanation cannot be readily believed. 25. PW-9 has stated that after sealing the case property and before handing over the seal to PW-6, he had taken sample impression of the seal on Ex. P-3. We have thoroughly scanned the records particularly the exhibit part of the file received from the trial Court, but we do not find any Ex. P-3 on record or in the indexes of the various parts of records of the trial Court as received here. We would have got enquired whether any such exhibit is available anywhere or not, but in the facts and circumstances of the case, such an inquiry and finding out Ex. P-3 for the purpose of disposal of this appeal is not necessary, because such exhibit, though put to the accused in the English version of his statement vide Question No. 13 but in the authentic and acceptable Hindi version of the statement of the accused this exhibit had not been put to him and, therefore, is of no help. 26. PW-9 has further stated that he took the accused, Exs. P-l, P-2, P-3 and another sample parcel to the police station and produced the same before SHO Harnam Singh (PW-7) who had re-sealed the same with seal impression R. However, PW-7 Harnam Singh had a different story to tell. He does not say that the accused was ever produced before him by anyone. P-l, P-2, P-3 and another sample parcel to the police station and produced the same before SHO Harnam Singh (PW-7) who had re-sealed the same with seal impression R. However, PW-7 Harnam Singh had a different story to tell. He does not say that the accused was ever produced before him by anyone. He has, however, stated that on 15.3.2000, Sansar Chand handed over Exs. P-l and P-2 and another sample alongwith sample seal to him and he put a seal bearing impression R on Exs. P-l, P-2 and further stated that "the sample which was sent to the C.T.L., Kandaghat and thereafter I deposited the same to MHC for safe custody. " Thus, he does not corroborate PW-9 regarding production of the accused, case property and samples by PW-9 before him. He does not state anything about handing over the seal used by him for re-sealing to anyone or keeping impression thereof separately. It is also not his version that he received form NCB from PW-9 and mentioned about the seal used by him in the said form. PW-1, to whom according to PW-7 the case property and samples were entrusted for safe custody, states that one sealed sample alongwith NCB form and impression of the seal was handed over by him to Constable Rajesh (PW-10) for being delivered to C.T.L., Kandaghat. He has not stated as to how he came to possess the NCB form. PW-10 has stated that he was handed over one sample of charas sealed with seal impression A and R to be taken to C.T.L. alongwith sample seals. Thus,, this witness was given not one sample seal but more than one, though, he has not specifically stated as to how many sample seals were handed over to him, whereas according to PW-1, he was handed over impression of the seal and not of the seals. In any case, none of these witnesses have clarified as to how more than one sample of seals came into being and who prepared them and when? Similarly, PW-1 has nowhere stated as to how he came to possess NCB form. 27. Version of PW-9 about NCB form is that "I had filled in the form NCB on the reverse Ex. PJ at the spot. The contents of which have been filled in on column 1 to 8 of my own hand and bears my signature". Similarly, PW-1 has nowhere stated as to how he came to possess NCB form. 27. Version of PW-9 about NCB form is that "I had filled in the form NCB on the reverse Ex. PJ at the spot. The contents of which have been filled in on column 1 to 8 of my own hand and bears my signature". A perusal of NCB form on the back of the report Ex. PJ which is stated to have been prepared on the spot at the time of search and seizure, reveals that prima facie it has been filled in one go and it is nobodys case that any entry therein was made subsequently Further, it mentions that the sample was despatched to CTL on 18.3.2000, the date which could not be known on the spot on 15.3.2000. It further mentions that the parcel was sealed with two seals of A and two seals of R whereas at the time when it is stated to have been prepared by PW-9, it could not be mentioned that the parcel had two seals of R nor could there be reference to three samples of seal R. In these circumstances, this document appears to have been prepared and maintained at the leisure and pleasure of the concerned police officials, but not according to the requirements of the procedure. 28. The learned trial Judge has ignored the fact of the NCB form having been prepared in highly suspicious circumstances by observing that "it appears that PW-9 stated by mistake that he had prepared this part of the document on the evening of 15.3.2000 on the spot." On the face of the clear and unequivocal statement of PW-9 and there being no evidence to show that PW-9 had stated about the filling in of all the columns of the NCB form by mistake, these observations of the learned trial Judge are without any basis and are not even inferable on the basis of the material on record. 29. As and when the case property is produced before the Court for being identified by the witnesses, the Court records its observations as to the condition of the property, that is the seal impression affixed to the packet containing the case property and whether such packet and seal impressions are intact or not? It helps to some extent in deciding whether the case property remained untempered with or not. It helps to some extent in deciding whether the case property remained untempered with or not. However, in this case, neither there are observations of the trial Court as aforesaid nor the material witnesses have stated as to what seal, if any, was affixed to the case property and whether the packets containing the case property and the seal impressions were intact or not. This lapse, though not entirely attributable to the prosecution, gives the benefit to the accused. 30. The above discussion leads us to the conclusion that the prosecution has failed to prove by leading cogent and reliable link evidence that the case property remained untempered with. 31. In view of the above conclusions and findings, the impugned conviction and sentence cannot be sustained. 32. As a result, this appeal is allowed. The conviction of and sentence awarded to the accused are set aside and he is acquitted of the charge against him. 33. The accused is presently in Jail undergoing the sentence of imprisonment awarded to him. He be set at liberty forthwith, if not required to be detained under any other process of law. Fine, if recovered, be refunded to him. Appeal allowed.