JUDGMENT A.N. Jindal, J.:-­ Challenge in this appeal is to the judgment of conviction and sentence dated 5.9.2005 passed by Judge, Special Court, Barnala, whereby, accused-appellant Jagtar Singh (herein referred as the ‘appellant’) was convicted under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’) and sentenced to undergo rigorous imprisonment for twelve years and to pay fine of Rs.one lac, in default of payment of the fine, to further undergo rigorous imprisonment for two years. 2. The facts as unfolded by the prosecution in brief, are that on 19.9.2003, Inspector Piara Singh along with other police officials was present on the main Barnala-Bathinda road for checking the suspected persons, where, he received a secret information that the accused Bhola Singh resident of Dhillwan, Balbir Singh resident of Khokhar and Binder Singh resident of Draya Wala, Binder Singh @ Billa resident of Bhuraj Maur and Jagtar Singh driver had constituted a group and used to sell the poppy husk in the area of Police Station Tapa. The information further revealed that on that day, the aforesaid persons were bringing poppy husk in truck No.RJ13G-4594, which they would sell in the areas of villages Ghunas and Dhillwan. Relying on the secret information, formal FIR Ex.PA/l was registered. A picket was placed over the drain bridge in the area of village Ghunas. In the meanwhile, Bhola Singh, an independent witness came and was joined in the police party. Thereafter, a truck was seen coming from the side of village Ghunas, the driver of which, on seeing the police party, switched off the head-lights and all the occupants of the truck fled away in the darkness. However, persons who had fled away, were found to be five in number. The truck was bearing No.RJ13G-4594. On search of the truck, it was found that bags of poppy husk were loaded between bags of salt. After unloading all the bags, bags of salt were found to be 380, while bags of poppy husk were found to be 25 in number. From each bag, two samples of 250 gms each of poppy husk were separated and given Sr.No.1,1(a) to 25,25(a). After drawing the samples, the bags containing contraband were found weighing 33½ kg each. Inspector Piara Singh sealed all the packets of samples and the bags of poppy husk with his seal bearing impression ‘PS’. From each bag, two samples of 250 gms each of poppy husk were separated and given Sr.No.1,1(a) to 25,25(a). After drawing the samples, the bags containing contraband were found weighing 33½ kg each. Inspector Piara Singh sealed all the packets of samples and the bags of poppy husk with his seal bearing impression ‘PS’. Specimen seal (Ex.P1) was prepared separately and it was handed over to ASI Darshan Singh. The inspector took all the bags as well as the samples parcels and also the truck, spare wheel, tarpaulin and rope into possession vide recovery memo Ex.PB; goods receipt Ex.PC, other two receipts Ex.PE and Ex.PF were taken into possession vide recovery memo Ex.PD. He also prepared site plan Ex.PG of the place of recovery and recorded the statements of the witnesses. On return to the Police Station, Tapa, Inspector Piara Singh produced the case property before SHO Gurdev Singh, who after verifying the facts and investigation sealed the case property with his seal bearing impression ‘GS’ and deposited the same with the MHC in intact position. Special report under Section 57 of the Act was also sent, which was received by the DSP Tapa vide his endorsement Ex.PH/1. Jagtar Singh - accused was arrested on 9.10.2003 and arrest memo Ex.PJ was prepared, while accused Gurjit Singh was arrested on 23.3 .2004 and his arrest memo Ex.PM was prepared. After obtaining the report from the Chemical Examiner and on completion of the other formalities, accused Gurjit Singh and Jagtar Singh were challaned. 3. Both the accused were charged under Section 15 of the Act, to which they pleaded not guilty and claimed trial. 4. In order to substantiate its charges, the prosecution examined ASI Darshan Singh as PW1, Mohinder Sahara, Clerk of office of DTO, Ganga Nagar as PW2, who proved the certificate of truck No.RJ13G/4594; PW3 is Inspector Piara Singh, Investigating Officer; PW4 is HC Joginder Singh; PW5 is SI Hardeep Singh; PW6 is ASI Hukam Singh and PW7 is SI Gurdev Singh; PW8 is HC Darshan Singh, who tendered his affidavit Ex.PO; PW9 is Bhupinderpal Singh Bhatia, Taxation Inspector, who has proved the receipt Ex.PO; PW10 is Om Parkash, who has proved the goods receipt Ex.PR and the prosecution closed its evidence by tendering affidavit Ex.PS of Constable Labh Singh and report Ex.PT of the Chemical Examiner. 5. 5. After the prosecution evidence was over, the statements of the accused were recorded under Section 313 of the Code of Criminal Procedure, in which they denied all the incriminating circumstances appearing against them and complained of their false implication in the case. 6. Accused Jagtar Singh (appellant) took the plea that he never ran away after leaving the truck RJ13G/4594 at the alleged place. He never drove any truck. The alleged bags containing poppy husk were recovered from the possession of one Chug Singh resident of Bhaga Purana, who has been set free by the police by taking bribe from him. He has been falsely implicated in the case by the police of CIA staff, Barnala. 7. Accused Gurjit Singh (acquitted person) took the plea that he is a cashier of Baba Kirpal Dass Youth Welfare Club, Ghuman-Khurd. His club members were supporting the opposite candidate of Karam Singh Ex.Sarpanch. Karam Singh lost the election of the Sarpanch being Congress candidate. Said Karam Singh got him implicated in this case to take revenge from him. 8. Ultimately, the trial ended in acquittal of Gurjit Singh and conviction of Jagtar Singh. Hence, this appeal by Jagtar Singh. 9. Arguments heard. Record perused. 10. At the very outset, counsel for the appellant urged that accused Gurjit Singh (since acquitted) was not named amongst the persons against whom, the secret information was received. Similarly, parentage of Jagtar Singh (appellant) was also not got recorded and, therefore, it cannot be said that the appellant was the person, who was the perpetrator of the crime. He further urged that recovery memos (Ex.PB and PD), special report (Ex.PH) which were prepared after the FIR was recorded, also do not reveal the name of the appellant. Learned counsel has also contended that ASI Darshan Singh (PW1) and the Investigating Officer/Inspector Piara Singh (PW3) could not identify the appellant in the Court to be the same person, who succeeded in running away from the spot leaving the truck there under the cover of darkness; no investigation in order to find out the ownership of the truck was conducted; the owner was not apprehended; the appellant was not arrested at the spot; question of identification was material as all the alleged accused had slipped away in the darkness of night and thus, the benefit of doubt deserves to be extended to the appellant. 11. 11. To the contrary, Additional Advocate General appearing on behalf of the respondent - State of Punjab has supported the impugned judgment by urging that HC Joginder Singh (PW4) had no axe to grind against the appellant. Therefore, when he being not inimical to the appellant, deposed that the appellant is the person, who had fled away from the spot, there was no reason to disbelieve his version. HC Joginder Singh also stated that he came to know about the names of the accused persons, when they were calling each other while running. 12. Admittedly, the occurrence took place during night time. It is also not in dispute that all the accused had fled away under the cover of darkness. None of the police officers could apprehend them, though they were much in number. In the absence of any of the accused, the truck was not taken to a magistrate or some other responsible person for search. Only independent witness Bhola Singh, allegedly joined by the police at the spot, has also not been examined. There is no independent witness to state that the recovery of bags was effected in his presence. The recovery memo Ex.PB, prepared immediately after the occurrence in the absence of the accused; does not reveal the name of any of the accused, though as per HC Joginder Singh (PW4) he had identified them while running. Had HC Joginder Singh really identified them, then he would not have felt shy in recording their names at the time of effecting the recovery from the alleged truck. HC Joginder Singh, in fact, appears to have made an improvement over his earlier statement, which he got recorded on the day of occurrence. In such circumstances, the identification made by him for the first time in the court assumes insignificance. In the peculiar circumstances of the present case, the Test Identification Parade could play a significant role as the occurrence took place during night time and the accused had allegedly fled away from the spot. Therefore, the police could hold Test Identification Parade for identification of the accused, but no such effort was made by the prosecution. In the peculiar circumstances of the present case, the Test Identification Parade could play a significant role as the occurrence took place during night time and the accused had allegedly fled away from the spot. Therefore, the police could hold Test Identification Parade for identification of the accused, but no such effort was made by the prosecution. In any case, the accused was only a driver of the alleged truck, therefore, he could not be imputed any specific knowledge of the articles lying in the rear-side of the truck, which were lying mixed with the salt bags, so as to draw an inference that he was in conscious possession of the contraband. HC Joginder Singh (PW4) has been cited as a witness to the recovery. Had he been present at the spot, then he would have got recorded the names of the persons who had fled away and the various memos prepared on the spot, must have been signed by him, which is not so. 13. As regards the document Ex.PE i.e, the report made by Om Salt Company, it is revealed that the salt was dispatched 16.9.2003 to Rajesh Chemicals, Plot No.292, Industrial Area-A, near Cheema Chowk, Ludhiana, whereas, the present occurrence took place on 19.9.2003. The said document though bears the signatures of Jagtar Singh, but it is not sufficient to pin-point driving of the vehicle in question on the day of occurrence by him. Similarly, the document Ex.PC, which is a Consignment Note by the Balaji Transport Company reveals that the salt was sent by Om Salt Company, Didwana (Rajasthan) and it was to be delivered at Ludhiana (Punjab). This document Ex.PC also bears the signatures of Jagtar Singh (appellant), but that by itself is also hardly sufficient to hold that Jagtar Singh was driving the truck at the relevant time. Even otherwise, the counsel for the appellant has challenged the signatures of Jagtar Singh by stating that no expert evidence was brought on record in order to establish as to whether the aforesaid two documents bear the signatures of Jagtar Singh. Learned counsel has also pointed out towards the statement of the appellant under Section 161 Cr.P.C, which reveals that there is thumb impression of Jagtar Singh on the said statement. According to these documents, the truck was loaded on 16.9.2003 and reached the place of recovery on 19.9.2003. Learned counsel has also pointed out towards the statement of the appellant under Section 161 Cr.P.C, which reveals that there is thumb impression of Jagtar Singh on the said statement. According to these documents, the truck was loaded on 16.9.2003 and reached the place of recovery on 19.9.2003. There is no evidence on the record that somebody had seen the appellant loading the poppy husk in the way. It is also not clear as to how many drivers were there ‘on the truck on the fateful day or that it was Jagtar Singh alone who drove the truck all the way. Even if the signatures of the Jagtar Singh on Ex.PE and Ex.PC are taken to be true, even then, it does not go to establish that he had the knowledge of the contraband allegedly loaded in the truck, being driven by him. 14. The prosecution appears to have apparently misled the court and, thus, we leave this fact to the wisdom of the Senior Superintendent of Police concerned. Though, the Investigating Officer had recovered the Consignment Note (billty), which was in the name of Om Salt Company, Gangro Ka Chowk, Didwana, District Nagor (Rajasthan) and also the registration certificate of the truck in question, according to which the said truck bearing Reg.No.RJ13G-4594 was in the name of Ram Sawroop son of Dev Raj resident of 1-80, Housing Board, Sri Ganganagar (Rajasthan), yet the Investigating Officer did not bother to investigate the case on these lines, particularly when none could be arrested at the spot. No Test Identification Parade was got conducted by him from HC Joginder Singh (PW4) to identify the accused persons. Thus, inevitable conclusion, which could be drawn is that the prosecution has failed to bring home the charge against the accused beyond reasonable doubt. No Test Identification Parade was got conducted by him from HC Joginder Singh (PW4) to identify the accused persons. Thus, inevitable conclusion, which could be drawn is that the prosecution has failed to bring home the charge against the accused beyond reasonable doubt. Before parting with the judgment, it also needs mention that the Trial Court did not properly conduct the trial while recording the statements of the accused under Section 313 Cr.P.C. It was bound to take into consideration the provisions of Section 281 of the Code, which are mandatory in nature and are being reproduced as under:­ “281(5): it shall thereafter be signed by the accused and by the Magistrate or presiding Judge, who shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.” On perusal of the aforesaid provision, it is apparent that the Judge examining the accused shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused, but in the case in hand, the said certificate is not found recorded on the statement of the accused. Be that as it may, the irregularity is curable, but the courts are bound to know and follow the procedure laid down in the Code at the time of recording such valuable and important proceedings. 15. In the wake of the aforesaid discussion, we accept the appeal, set aside the impugned judgment, acquit the accused- appellant Jagtar Singh of the charges framed against him and he is directed to be set at liberty. Fine, if deposited, be refunded. ----------------