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2004 DIGILAW 326 (HP)

SURINDER SINGH v. STATE OF H. P.

2004-12-08

DEEPAK GUPTA, LOKESHWAR SINGH PANTA

body2004
JUDGMENT Deepak Gupta, J. - The appellant (hereinafter referred to as the accused) has filed this appeal against the judgment of the learned Sessions Judge, Kinnaur Sessions Division at Rampur in Sessions Trial No. 7 of 2001, whereby he has convicted the accused for an offence under Section 20 of the narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of rupees one lac In default of payment of fine, the accused has been directed to undergo simple imprisonment for one year. 2. Brief facts necessary for the decision of this case are that on 29.6.2001 at 5.00 a.m. in the morning accused boarded bus No. HP-20-0625. This bus belonging to HRTC had left Ani for Kullu via Shimla at 5.00 a.m. The accused boarded this bus after it had covered a distance of 1-2 K.M. from Ani towards Luhri. When he boarded the bus, the accused was carrying a bag of black colour. 3. On the same date, PW-12, SI Parvez Iqbal, the then SHO, Police Station, Kumarsain, had proceeded with other police officials, including PW-9, H.C. Brij Lal and PW-10, C. Pradeep Kumar for routine patrolling/Naka out. .They had left Police Station, Kumarsain at 5.10 a.m. at about 7.30 a.m. they were at Bharara on National Highway-22. Bus No. HP-20-0675 came from Kingal side towards Kumarsain. This bus was stopped from checking. The bus was driven by PW-7 Chaudhary Ram and PW-6 Madan Lai was the conductor of the said bus. When the police officials entered the bus, the accused was sitting on seat No. 30. It is the case of the prosecution that on seeing the police party, the accused felt scared. Noticing this, PW-12 directed the accused to step out of the bus along with his bag. The bus driver and conductor also got down from the bus. One Geeta Ram PW-8 is also alleged to have got down from the bus. Because of the conduct of the accused, SI Parvez Iqbal, PW-12 suspected that the accused may be carrying some contraband. Therefore, in the presence of PW-6, Madan Lal, PW-7, Chaudhary Ram and PW-8 Gian Singh he gave an option to the accused of being searched before the gazetted officer vide consent memo Ex. Because of the conduct of the accused, SI Parvez Iqbal, PW-12 suspected that the accused may be carrying some contraband. Therefore, in the presence of PW-6, Madan Lal, PW-7, Chaudhary Ram and PW-8 Gian Singh he gave an option to the accused of being searched before the gazetted officer vide consent memo Ex. PW-6/A.The accused gave his consent for being searched by the police party vide portion A to A of consent memo. It is alleged that he had signed the consent memo Ex. PW-6/A. Thereafter PW-12, in the presence of witnesses had checked the bag, Ex. P-3 of the accused. From the said bag he recovered charas, Ex. P-1 in the shape of billets. The charas was wrapped in a polythene paper. Apart from charas, a shawl, Ex. P-4, pant Ex. P-5, shirt Ex. P-6 and T-shirt, Ex. P-7 were also recovered from the bag, Ex. P-3. PW-12 had then sent a constable to call for some person to weigh the charas. PW-1 Balak Ram, who is a General Merchant at Bharara, had brought weights and scale and weighed the charas which was found to be 1500 gms. The police had drawn two samples of 50 gms. each, which were packed in two sealed parcels. Remaining charas was packed in the third parcel. All the parcels were sealed with seal H and taken into possession vide recovery memo Ex. PW-1/A. It is alleged that the seal was handed over to PW-6. Thereafter the Investigating Officer had prepared the report Ex. PW-5/A and sent the same to Police Station for registration of FIR. The accused person had been arrested after apprising him about the grounds of arrest vide memo Ex. PW-12/C. The Investigating Officer recorded the statement of the witnesses under Section 161 Cr.P.C. He also carried out the personal search of the accused. He prepared the NCB Form for chemical examination. Special report, copy of which is Ex. PW-2/A, was sent to the SDPO through H.C. Brahma Nand. The case property was deposited with Moharrar. H.C. Thereafter samples were sent to the Chemical Examiner. After receipt of the report, Ex. PX wherein samples were stated to be those of charas, the Investigating Officer had filed his challan. The accused was charged with having committed an offence under Section 20 of the NDPS Act. He pleaded not guilty and claimed trial. H.C. Thereafter samples were sent to the Chemical Examiner. After receipt of the report, Ex. PX wherein samples were stated to be those of charas, the Investigating Officer had filed his challan. The accused was charged with having committed an offence under Section 20 of the NDPS Act. He pleaded not guilty and claimed trial. The prosecution in support of its case examined 12 witnesses. Thereafter incriminating circumstances were put to the accused and his statement was recorded under Section 313 Cr.P.C. The accused in defence examined only one witness. After considering the entire evidence, the learned trial Court has convicted and sentenced the accused, as detailed above. 4. Mr. G.D. Verma, learned Senior Advocate, appearing on behalf of the accused has assailed the judgment of the trial Court on the grounds that in view of the evidence led before the Government the prosecution has failed to prove that any recovery was made from the accused and that the investigation of the case was not in consonance with law and the prosecution has failed to produce and prove the relevant link evidence to link the Chemical Examiners report with the substance, if any recovered from the accused. His contention also was that the prosecution witnesses are not independent and there are material contradictions in the statements and, therefore, the prosecution story is doubtful and cannot be believed. 5. Before considering the entire evidence it would be pertinent to mention that the accused in his statement under Section 313 Cr.P.C. has clearly admitted that he had boarded bus No. HP-20-0675 on 29.6.2001, a little after 5.00 a.m. after it had covered a distance of 1-2 KM. from Ani towards Luhri. He has also admitted that PW-6, Madan Lal was the conductor of the bus and PW7, Chaudhary Ram was the driver. He has also admitted that when he boarded the bus, he was carrying bag, Ex. P-3 of black colour. Therefore, the presence of the accused and the fact that he was carrying bag, Ex. P-3 stands admitted and we need not deal with that portion for the evidence which is related to this part. We are, therefore, also unable to accept the contention of Mr. Verma that bag, Ex. P-3 did not belong to the accused. 6. P-6, Madan Lai, is the conductor of the bus. P-3 stands admitted and we need not deal with that portion for the evidence which is related to this part. We are, therefore, also unable to accept the contention of Mr. Verma that bag, Ex. P-3 did not belong to the accused. 6. P-6, Madan Lai, is the conductor of the bus. He states that on 29.6.2001 when the bus reached Bharara at about 7.30 a.m., police had stopped the bus. Some policemen had entered the bus. The accused was directed to step out of the bus along with his bag. The police had recovered charas from the bag and then police had sent for weights and scales. Thereafter, the charas was weighed and found to be 1500 gms. He also states that police had drawn two samples of charas and the rest of charas had been separately sealed. The recovery was made vide recovery memo. Ex. PW-1/A which was signed by him and the bus driver, Chaudhary Ram. Thereafter the accused was apprised about the grounds of arrest and he was arrested. During the examination of this witness, the prosecution had produced one sealed bag sealed with seal H. The seal was intact. On opening the parcel, it contained charas, Ex.P-1 and Ex. P-2 was the outer cover of charas which carried the signatures of PW-6. These signatures were identified by him. Thereafter the prosecution produced another bag, Ex. P-3 and this contained clothes Ex. P-4 and P-7. This witness says that he had signed consent memo Ex. PW-6/A, but he does not know who had written portion A to A (which is the consent of the accused in memo Ex. PW-6/A). He has stated that accused had signed the consent memo, Ex. PW-6/A and recovery memo Ex. PW-1/A. In cross-examination this witness states that it took about 134-2 hours to complete the proceedings at Bharara. He also states that he does not know the contents of recovery memo Ex. PW-1/A and consent memo" Ex. PW-6/A. The witness also states that there was no weight of 50 gms. He has stated that the samples were taken after dividing a; portion of 100 gms. He clearly and unambiguously states that the seal was not handed over to him by the police. 7. PW-7, Chaudhary Ram is the driver of the bus. He also supports the prosecution version that charas was recovered from bag, Ex. He has stated that the samples were taken after dividing a; portion of 100 gms. He clearly and unambiguously states that the seal was not handed over to him by the police. 7. PW-7, Chaudhary Ram is the driver of the bus. He also supports the prosecution version that charas was recovered from bag, Ex. P-3 and identified his signatures on memos, Ex. PW-6/A and PW-6/B and on the outer cover of chars, Ex. P-2. He states that the seal H was not handed over by the police to any person. Thereafter he was declared hostile and was cross-examined by the Public Prosecutor. He admits that the accused was given an option of being searched by the police before a gazetted officer and that the accused had written portion A to A of consent memo Ex.PW-6/A in his own hand and signed the same at point X. He also admits that weight of the charas was 1500 gms. He does not remember anything about the sampling or packaging of the charas and states that he had signed the seizure memo, Ex. PW-1/A and Ex. PW-6/A without reading its contents. He also states that it took YA to 2 hours to complete the proceedings. He has admitted that the relatives of the accused had met him outside the court room before he made his statement. He has denied the suggestion that he had been promised some consideration to resile from his previous statement. 8. PW-1 Balak Ram runs a shop of General Merchandise at Bharara. On 29.6.2001 he was called by the police along with his weight and scales. When he went to the road side, he was asked to weigh some substance which was found to be 1500 gms. Thereafter two samples of 50 gms. each had been taken. This witness states that he does not know whether the accused was present and that police did not seal the packets in his presence. He was then declared hostile and cross-examined by the Public Prosecutor. In cross-examination he, admitted that the accused was present with the police when the material was weighed. He also admits that policemen had smelt the material in his presence. He has, however, denied sealing of the parcel in his presence. 9. He was then declared hostile and cross-examined by the Public Prosecutor. In cross-examination he, admitted that the accused was present with the police when the material was weighed. He also admits that policemen had smelt the material in his presence. He has, however, denied sealing of the parcel in his presence. 9. Evidence of PW-8, Geeta Ram is of no consequence since he states that he had slept through the entire period and does not know anything about the incident. 10. PW-9, H.C. Brij Lal has stated that on 29.6.2001 he was on. patrolling duty along with other police officials. Bus in question was stopped. The accused was found sitting on Seat No. 30. The accused had felt scared at the sight of the police. The bag of the accused was searched and charas was recovered which on weight was found to be 1500 gms. He further states that the charas was sealed in three separate packets (two samples and one packet of remaining charas) which was sealed with seal H and taken into possession vide recovery memo Ex. PW-1/A. In cross-examination he states that the police had reached Police Station, Kumarsain after the recovery at 4.00 p.m. This witness does not remember if he had been on duty at Police Station, Kumarsain after 4.00 p.m. on 29.6.2001. He also does not remember if he had been present in the Police Station two days following the recovery of charas. The statement of this witness under Section 161 Cr.P.C. was recorded in August, 2001 by the Investigating Officer, PW-12 after the prosecution had raised objection to the report under Section 173 Cr.P.C. He states that it takes 1/2 an hour to cover the distance from Bharara to Police Station. 11. PW-10 Pradeep Kumar was also part of police party and also supported the prosecution version. He also states that the sample packet of charas and remaining charas had been sealed in three packets with seal H which had been handed over to the bus conductor. He states that he had taken the report Ex. PW-5/A from the site of recovery of the Police Station on 29.6.2001 at 8.20 a.m. and he returned from the Police Station at about 10-15 a.m. He reached Rampur on 29.6.2001 aft about 4.00 p.m. on the same day and thereafter he submitted the FIR to the court. He states that he had taken the report Ex. PW-5/A from the site of recovery of the Police Station on 29.6.2001 at 8.20 a.m. and he returned from the Police Station at about 10-15 a.m. He reached Rampur on 29.6.2001 aft about 4.00 p.m. on the same day and thereafter he submitted the FIR to the court. He has also stated that it takes about 1/2 an hour to1 reach Bharara from the Police Station on foot. 12. PW-11 Sulesh Kumar states that on 29.6.2001 he was associated in the investigation of the case when personal search of the accused was done by the police and items recovered from the accused were recorded in seizure memo Ex.PW-11/A, signed by him at Kumarsain on 29.6.2001. He states that the personal search had been conducted at 11-12 a.m. i.e. after 11 a.m. and before 12 noon in the presence of PW-12 and PW-9. 13. PW-12 is the Investigating Officer. He has again supported the prosecution version regarding the stoppage of the bus, asking the accused to get down from the bus, giving him an option of being searched, search of the bag and recovery and weighing of charas. He also states that he had thereafter prepared the report Ex. PW-5/A, which he had sent to Police Station for the registration of FIR. He has also prepared sketch map Ex. PW-12/B. He states that accused person was apprised about the grounds of arrest vide memo Ex. PW-12/C. He had also prepared-the relevant NC for chemical examination and then sent to the special report, copy of which is Ex. PW-2/A, to SDPO through H.C. Brahma Nand. He states that he had deposited the case property with PW-3, MHC Gulab Singh. In cross-examination he, states that he had returned to Police Station after recovery at about 4.30 p.m. along with PW-9, Brij Lal. He states that he had been free at Bharara from 10.30-10.45 a.m. He states that thereafter he checked the market and had returned to Police Station after checking the market. In cross-examination he, states that he had returned to Police Station after recovery at about 4.30 p.m. along with PW-9, Brij Lal. He states that he had been free at Bharara from 10.30-10.45 a.m. He states that thereafter he checked the market and had returned to Police Station after checking the market. In further cross-examination, he states that he had carried out personal search of the accused person near Rain Shelter at Bharara at about 11.30 a.m. He further states that he had handed over the case property to MHC on 29.6.2001 at 4.30 p.m. He admits that he had recorded the statement of PW-9, HC Brij Lal under Section 161 Cr.P.C. on 25.8.2001 and that he had recorded the statement of PW-11, Sulesh Kumar on 28.8.2001. PW-2, Kanwar Singh is reader to Sub Divisional Police Officer, Rampur. He stats that H.C. Brahma Nand had produced special report before him on 30.6.2001 at 11.00 a.m. PW-3 H.C. Gulab Singh was working as MHC, Police Station, Kumarsain at the relevant time. He states that PW-12, Parvez Iqbal had deposited three sealed, packets, sealed with seal H with him on 29.6.2001. He had made entries with regard to the same in the relevant register. He admits in cross-examination that apart from three packets sealed with seal H, no other articles was given to him by PW-12 SHO Parvez Iqbal and that SHO had deposited the case property with him on 29.6.2001 at about 6-7 p.m. He further states that on 4.7.2001 he had sent two samples packets of charas duly sealed with seal H to Chemical Examiner, Kandaghat through Constable Puran Dev vide RC No. 23/01. He states that the case property was not tampered when it remained in his custody. 14. PW-4 Constable Puran Dev states that on 4.7.2001 he had taken two sealed packets from PW-3, Gulab Singh and deposited the same with the Laboratory of Chemical Examiner on the same day vide RC No. 23/01. He states that he had returned RC to MHC and that these samples were not tampered with as long as they remained in his custody. He admits in his cross-examination that apart from two samples packets, he had not taken anything else from Police Station to the Chemical Examiner. 15. PW-5 H.C. Madan Singh states that on 29.6.2001 on receipt of report Ex. PW-5/A he had registered FIR, Ex. He admits in his cross-examination that apart from two samples packets, he had not taken anything else from Police Station to the Chemical Examiner. 15. PW-5 H.C. Madan Singh states that on 29.6.2001 on receipt of report Ex. PW-5/A he had registered FIR, Ex. PW-5/B and handed over the file to Constable Pradeep Kumar for onward transmission to the SHO. 16. The accused has examined one witness, namely Ishwar Singh, according to whom he and the accused were traveling together and that they had boarded the bus from Ani. He stats that accused was not carrying any bag and the bag did not belong to the accused. 17. It is in the light of the above evidence that we have to consider the contentions of the learned Counsel for the parties. 18. Mr. G.D. Verma, learned Senior Counsel, has submitted that there is no compliance of Section 50 of the NDPS Act. In the present case the search is of the bag, and is not the personal search of the accused. Therefore, the provisions of Section 50 of the NDPS Act are not at all applicable and this contention cannot be accepted. 19. Mr. Verma also contended that there is no compliance of Section 57 and the sample was sent late to the SDPO. It is settled law that provisions of Section 57 are not mandatory. In any event in this case there is substantial compliance as the sample was sent to the SDPO well within the outer limit of 48 hours. Reference in this behalf may be made to Sayan Abraham v. State of Kerala, 2001(6) SCC 692, wherein it has been held that Section 57 of the Act is not mandatory. 20. The main ground of attack to the judgment of the trial Court is that the prosecution has failed to produce and prove the link evidence to link the sample which was sent to the Laboratory with the remaining sample of charas which is alleged to have been recovered from the accused. 21. 20. The main ground of attack to the judgment of the trial Court is that the prosecution has failed to produce and prove the link evidence to link the sample which was sent to the Laboratory with the remaining sample of charas which is alleged to have been recovered from the accused. 21. This Court in Sandeep Kumar v. State of H.P., 2002(2) S.L.C. 224 (H.P.) while dealing with importance of link evidence held as under "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) analyzed 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." 22. In State of H.P. v. Gurdeep Lal and another. Criminal Appeal No. 224 of 2000 decided on 14.3.2002, this Court took similar view as in Sandeep Kumars case (supra). 23. This Court in Criminal Appeal No. 9 of 2002, decided on 25.6.2002, Jagat Singh v. State of H.P., has held as follows :- "On careful scrutiny of the evidence as discussed above and the judgments relied upon by the learned Counsel for the appellant in support of his submissions, the conclusion becomes irresistible. Depositing of the N.C.B. form acquires significance in a case of the N.D.P.S. Act. In cases, where the legislature has provided for such stringent punishment, the Courts would be justified in insisting for standard of proof beyond any shadow of doubt against the accused. In the instant case non-deposit of the N.C.B. form and impression C and "V in the Malkhana and consequently not sending the same to the C.T.L. office are vital lapses in the prosecution version and the appellant is certainly entitled to the benefit of doubt. In the instant case non-deposit of the N.C.B. form and impression C and "V in the Malkhana and consequently not sending the same to the C.T.L. office are vital lapses in the prosecution version and the appellant is certainly entitled to the benefit of doubt. The learned Counsel for the appellant placed reliance on the decision of the Delhi High Court in the case of Mool Chand v. State, 1993(3) Crimes 224. In that case though the C.F.S.L. form was filled in but was neither deposited in the Malkhana nor was sent to the C.F.S.L. along with the samples. The learned Single Judge examined the statements in the light of various decisions of the Supreme Court and came to the conclusion that the basis behind taking such a precaution is to complete material link in the prosecution evidence by eliminating the possibility of the sample being tampered with. The Court observed that the sentence provided under the N.D.P.S. Act is very severe. The Court cannot award any punishment less than 10 years rigorous imprisonment and has to impose a minimum fine of Rs. 1,00,000/- and in default of payment of fine to further undergo one year rigorous imprisonment. The Court observed that non-deposit of the CFSL form in Malkhana or its being sent to the CFSL was a mere irregularity, cannot be accepted. The Court directed that the appellant is entitled to the benefit of doubt and consequently the appellant was acquitted. In the case of Safiullah v. State, 1993(1) RCR (Crl.) 622 (Delhi), the road certificate was neither produced nor exhibited and it was confirmed that the CFSL form was ever taken out from the Malkhana and sent along with the sample parcels to the CFL office. In that case the court observed that the prosecution failed to prove the link evidence and the possibility that the sample parcels were not tampered with, cannot be ruled out. The conviction was set aside and the accused was given the benefit of doubt. Again in the cases of Rajan AH v. The State, 1999(4) RCR (Crl.) 632 (Delhi) the CFSL form was not deposited in Malkhana along with the seized property nor the same was sent to the CFSL office along with sample of parcels. The conviction was set aside and the accused was given the benefit of doubt. Again in the cases of Rajan AH v. The State, 1999(4) RCR (Crl.) 632 (Delhi) the CFSL form was not deposited in Malkhana along with the seized property nor the same was sent to the CFSL office along with sample of parcels. A learned Single Judge of the Delhi High Court observed that since the prosecution has failed to produce the link evidence which was imperative to demonstrate that the samples were not tampered with. Because of this lapse of the prosecution, the conviction of the appellant was set aside and the appellant was acquitted." 24. Mr. S.D. Vasudeva, learned Additional Advocate General, has supported the judgment of the learned trial Court. According to him the prosecution has established on record that the sample parcels were sealed on the spot with impressions and were thereafter deposited in the same condition in the Police Station. He has placed great reliance on the fact that the prosecution witnesses have stated that while the parcels remained with them, no body had tampered with the same. He also submitted that the report of the Chemical Examiner is per se admissible in evidence and in this report there is an endorsement that sample seals were unbroken and tallied the specimen impression. He also submits that once the recovery is proved, presumption under Section 34 and 54 will arise and it is for the accused to prove that he was not in conscious possession of charas. He has cited a number of judgments including Latif Mohammad v. State of Himachal Pradesh, 2004 Crl. L.J. 2750 : 2003(1) Cur. L.J. (H.P.) D.B. 229 Ramesh Kumar v. State of Himachal Pradesh, 2002 Crl. L.J. 1880; P.P. Fathima v. State of Kerala, 2003(8) SCC 726; Bhag Chand and others v. Narcotics Control Bureau, Chandigarh, 2004(2) SLC 157 and Duni Chand v. State of Himachal Pradesh, 2001(2) SLC 206. All these cases have been decided in their own peculiar facts and have no applicability to the facts of the present case. - 25. He also relied upon Hardeep Singh v. State of Rajasthan, 2001 Crl. L.J. 593 in which a learned Single Judge of Rajasthan High Court has held that mere fact that seal impression on separate paper was not taken and sent to FSL was a mere irregularity and would not effect the prosecution case. - 25. He also relied upon Hardeep Singh v. State of Rajasthan, 2001 Crl. L.J. 593 in which a learned Single Judge of Rajasthan High Court has held that mere fact that seal impression on separate paper was not taken and sent to FSL was a mere irregularity and would not effect the prosecution case. 26. Each missing piece of evidence given in the judgments relied upon by the prosecution alone may not be sufficient to cast a doubt, but in the present case where in addition to non-sending of the sample seal impression, there is delay is depositing the sample in the police station, there is also non-production of Malkhana register and RC In produced, but the balance link evidence was there. In the present case the total link evidence is absent. 27. In the present case there are certain glaring infirmities in the case of the prosecution. The prosecution has proved that the bag, Ex. P-3 was being carried by the accused and the material was recovered from it. However, the samples have not been linked with the remaining charas. As per the prosecution, these samples and the remaining charas were sealed in three separate packets with seal H This seal is stated to have been given to PW-6, Madan Lal, conductor of the bu6.This witness has flatly refused that the seal was given to him. It is in the light of these facts that the following circumstances can be taken to be the circumstances which cast serious doubt with regard to the link evidence:- (a) PW-6, Madan Lal has stated that the seal was not handed over to him. (b) Admittedly the seizure had been made by 8.20 a.m. on 29.6.2001. The Investigating Officer, PW-12, Parvez Iqbal also states that he was free from Bharara by 10.30 a.m. After that he only checked the market. No explanation has been given as to why the seized material was not deposited in the Police Station fill the evening. As per the Investigating Officer, he had deposited the same with PW-3 at about 4.30 a.m. whereas PW-3 has categorically stated that this was deposited with him at 6-7 p.m. The witnesses have stated that it only takes half an hour to walk out from the place of recovery to the Police Station. Therefore, the Investigating Officer should have ensured the depositing of the samples as early as possible. Therefore, the Investigating Officer should have ensured the depositing of the samples as early as possible. (c) Neither the NCB form nor the specimen seal impressions have been deposited by the Investigating Officer with the MHC, PW-3, Gulab Singh, who has clearly stated that other than three sealed packets, nothing else was deposited with him. (d) PW-4, Puran Dev has also stated that he had taken only two sealed packets of the sample charas to the Chemical Examiner and nothing else. This clearly means that he was not carrying the specimen seal impression or NCB form. (e) It is, therefore, not clear as to how the NCB form reached the Chemical Examiner. Since PW-4 had not taken the NCB form, the question as to how the NCB form reached the Chemical Examiner remains un-answered. (f) The Malkhana register has not been produced by the prosecution which would have clearly shown that was deposited by the Investigating Officer with PW-3. (g) The original RC, No. 23/01 or copy thereof has not been produced by the prosecution. This would have shown as to what was the material carried by PW-4 to the Chemical Examiner. (h) The Investigating Officer states that he had made three packets on the spot, two of samples and one of the remaining charas with the bag and clothes. What was deposited by him with PW-3 was also three packets. Admittedly two packets of sample had been sent to the Chemical Examiner. However, in court during examination of PW-6, first one sealed packet has been produced which contained charas, Ex. P-1 and the outer cover of charas Ex. P-2. Thereafter the Public Prosecutor produced one more bag containing the clothes, Ex. P-4 to P-7. From where this bag has been produced remains unexplained and casts a doubt with regard to the sampling the seizure of the material. 28. All these missing pieces of evidence create a serious doubt in our mind. The prosecution has failed to link the report of the Chemical Examiner with the substance recovered from the accused. In view of the earlier judgment of this Court wherein it has been clearly held that inference where stringent deterrent punishment is provided, the courts would be justified in insisting for standard of proof beyond any shadow of doubt against the accused. In view of the earlier judgment of this Court wherein it has been clearly held that inference where stringent deterrent punishment is provided, the courts would be justified in insisting for standard of proof beyond any shadow of doubt against the accused. In the instant case the non-deposit of NCB form, the seal impressions in the Malkhana register and not sending them to the Chemical Examiner, non-production of the Malkhana register and RC and other circumstances mentioned above, raise grave doubt in our mind and it is the accused who is entitled to the benefit of this doubt. 29. In view of the above discussion, we are of the considered view that the accused is entitled to the benefit of doubt. Accordingly, the appeal is allowed and the impugned conviction and sentence passed against the accused in Sessions Trial No. 7 of 2001 by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushehar vide judgment dated 2.8.2002 is set aside. The accused who is in custody undergoing the sentence of imprisonment awarded to him by the trial Court, is ordered to be set free forthwith, if not required to be detained in any other case. Fine, if any, recovered be refunded to the accused. The case property be dealt with in accordance with law.