Judgment Kanwaljit Singh Ahluwalia, J. 1. Jaskaran Singh, Nanak Singh and Daljit Singh were tried in case FIR No. 141 dated 10.10.2005 registered at Police Station Sadar, Moga under Sections 15(c) and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as, the Act). Jaskaran Singh and Nanak Singh have been convicted under Section 15(c) of the Act and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. One lac each and in default of payment of fine, they were to undergo rigorous imprisonment for 11/2 years. Daljit Singh alias Bholawas convicted under Sections 25 read with Section 15(c) of the Act and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. One lac. In default of payment of fine, he was to undergo further rigorous imprisonment for 1-1/2 years. Appellants Jaskaran Singh and Nanak Singh were found in possession of 56 Kg. of poppy straw while they were travelling in Tavera vehicle bearing registration No. PB-29E- 6369 owned by Daljit Singh co- accused. The vehicle Tavera bearing aforesaid registration number was ordered to be confiscated to the State. The present appeal has been filed against the conviction and sentence by all the appellants. No appeal against confiscation of Tavera vehicle has been filed. 2. FIR Ex.P7/A was recorded by MHC Gurmel Singh PW9 on the basis of ruqa Ex.P7 sent by SI Mohan Lal PW-1. 3. SI Mohan Lai was present along with his companion officials on the bridge of seepage-drain in the area of village Dagru for holding nakabandi and patrolling. It was stated that naka-bandi and patrolling was done under the supervision of SI Tehal Singh. At 6.30 A.M. a red colour Tavera vehicle was seen coming from the side of Village Sada Singh Wala. The police party spotted two persons sitting in the vehicle. The vehicle was signaled to stop. At that time one Gurdev Singh son of Darshan Singh was also coming on a scooter. He was stopped by the police party and he was made to join the police party. SI Mohan Lal asked the driver who was driving the Tavera vehicle to disclose his name, parentage and village. The driver disclosed his name as Jaskaran Singh son of Darshan Singh resident of Sant Nagar. He was stopped by the police party and he was made to join the police party. SI Mohan Lal asked the driver who was driving the Tavera vehicle to disclose his name, parentage and village. The driver disclosed his name as Jaskaran Singh son of Darshan Singh resident of Sant Nagar. Street No. 1, Moga whereas the person who was sitting along with him on the adjacent seat disclosed his name as Nanak Singh son of Bant Singh resident of Police Station Sadar Patiala. The Investigating Officer told those persons that he suspect that in the bags lying on the rear seat. there is some narcotic substance and. therefore. the search is to be conducted and option was given to them that if they want to be searched before a Magistrate or a Gazetted Officer, they can exercise that option. A memo to this effect was prepared. It is stated that a consent memo was prepared in which it was recorded that the accused had reposed faith and confidence in the Investigating Officer. Accordingly search was carried. Bags were opened and poppy straw was found and the same was weighed which came to 56 Kgs. From each bag samples of 250 grams were also prepared. Necessary procedure for search, seizure and drawing of the samples was completed. The seal after use was handed over to ASI Bikar Singh. After registration of the case, the matter was investigated. Thereafter, report under Section 173 Gr.P.C. was submitted. The appellants were charged by the Special Judge, Moga. They pleaded not guilty and claimed trial. 4. Prosecution examined SI Mohan Lal as PW-1. He had prepared ruqa Ex.P7 on the basis of which formal FIR was recorded. He gave the report regarding stopping of vehicle, giving offer to the appellants to get themselves searched before a Magistrate or a Gazetted Officer and prepared consent memo Ex.Pl. He also stated regarding joining of independent witness Gurdev Singh. He also deposed regarding drawing of samples at the spot, weighment of the narcotic substance and handing over of the seal impression Ex.P3 to ASI Bikar Singh. Thereafter he submitted that accused along with the case property were produced before SI Ajaypal Singh. SHO, Police Station Sadar, Moga. In further examination-in-chief, he stated that as per statement of Mahesh Kumar. Clerk, Office of D.T.O. Moga, Tavera vehicle bearing registration No. PB-29-E-6369 was owned by Daljit Singh appellant. Thereafter he submitted that accused along with the case property were produced before SI Ajaypal Singh. SHO, Police Station Sadar, Moga. In further examination-in-chief, he stated that as per statement of Mahesh Kumar. Clerk, Office of D.T.O. Moga, Tavera vehicle bearing registration No. PB-29-E-6369 was owned by Daljit Singh appellant. He further stated that on receipt of report of Chemical Examiner Ex.Pl 3, challan against the accused was submitted. In cross-examination he admitted that he had not prepared the log book of the vehicle used for patrolling in present case. He stated that they were travelling in a Mini bus. During cross-examination he admitted that seal was returned to him after 2-3 days of the occurrence and he had sent the ruqa at 10.00 A.M. and Hari Singh returned at the spot after obtaining number of the FIR at 1.00/1.30 P.M.. He further admitted that he had not filled up the CFSL form. He further admitted that seal was returned after 2-3 days by ASI Bikar Singh. He further stated that when the samples were sent by the SHO for testing purpose, seal was with him. 5. PW-2 Ashok Kumar is a Photographer. He had taken the photographs of the case property in the Court of Mrs. B.K. Bhatia. Judicial Magistrate 1st Class,Moga on23.1 1.2005. PW-3 HCTaranjit Singh had delivered the special report to lllaqa Magistrate and Senior police authorities. PW-4 HC Tarsem Singh had tendered his affidavit Ex.P18 to prove the link evidence. HC Tarsem Singh was cross-examined. He stated that CFSL form was not prepared by the MHC in his presence. He had deposited the material to the MHC. He further stated that except seals of Mark K.PS and ML, there was no other seal on the sample parcels and on the seal chit, PW-5 SI Ram Singh stated that on 11.10.2005 accused were produced vide application Ex.P 19 before the lllaqa Magistrate. He admitted in cross-examination that two packets of samples and two bags were sealed by seal of the Court. AS1 Bikar Singh to whom seals were handed over appeared as PW-6. In cross- examination he stated that police party was led by SI Tehal Singh. He further admitted that SI Mohan Lai was junior to SI Tehal Singh and Si Tehal Singh after effecting the recovery had left the spot after 2-3 hours. AS1 Bikar Singh to whom seals were handed over appeared as PW-6. In cross- examination he stated that police party was led by SI Tehal Singh. He further admitted that SI Mohan Lai was junior to SI Tehal Singh and Si Tehal Singh after effecting the recovery had left the spot after 2-3 hours. He further stated that the seal which was entrusted to him was handed over to SI Mohan Lal on the next day. PW-7 Gurnam Singh had proved registration certificate of Tavera vehicle. PW-8 SI Ajay Pal Singh deposed regarding production of the case property and accused before him and subsequently handing over of the case property to SI Ram Singh. PW-9 HC Gurmel Singh proved his affidavit Ex.P24. He stated that three sample seal chits were produced before him and all were original. CFSL form was not deposited with him. Sample seal chits were signed by the JM1C. PW Gurdev Singh was given up by the prosecution being won over by the accused. Report of Chemical Examiner was tendered as Ex.P 13. 6. All incriminating circumstances were put to the accused. They pleaded false implication and stated that no recovery was effected from them. The accused were picked up from their houses in the morning. In answer to question No. 10 put to accused Jaskaran Singh, it was stated as under :- "That at the behest of higher police officers this false case was registered against me and Nanak Singh in order to falsely implicate my brother-in-law (Jija Daljit Singh alias Bhola). This case has been planted upon me and Nanak Singh by involving Tavera car which was in my possession as the said car Tavera was given to me on Sapurdari by order dated 3.9.2005 by Shri B.S. Sandhu the then. Special Judge, Ferozepore. Whereas my brother-in- law Daljit Singh alias Bhola was in judicial lock up from 7th January. 2005 till 18th Januarv. 2006 under Section 1 5 of the N.D.P.S. Act in FIR No. 5 dated 7.1.2005 P.S. Malla Wala, District Feroze- pore. In that case my brother- in-law was acquitted on 18th January, 2006. That nothing incriminating has ever recovered from me and 1 was picked up from my house early in the morning and this false case has been registered against me." 7. In defence, Surjit Singh was examined as DW- 1. In that case my brother- in-law was acquitted on 18th January, 2006. That nothing incriminating has ever recovered from me and 1 was picked up from my house early in the morning and this false case has been registered against me." 7. In defence, Surjit Singh was examined as DW- 1. He stated that on 10.9.2005 the accused were taken from their house. Mr. Ghai senior counsel for appellants state that date 10.9.2005 has been wrongly recorded in fact it should be 10.10.2005, however, no explanation was sought from the witness regarding this alleged lapse. Ranjit Singh DW-2 had stated that on 10.10.2005 when he was going to the Gurdwara, he had seen that in front of the gate of Jaskaran Singh police officials had arrived. Gurdev Singh appeared as DW-3. He had stated that he is a Member Panchayat and no recovery was effected from the accused. Appellant Jaskaran Singh along with another man was taken by the police from his house. 8. I have heard Mr. Bipan Ghai, Senior Advocate along with Mr. S.P.S. Sidhu, Advocate and Mr. A.S. Brar, counsel for the State. 9. It has been submitted that in the present case, recovery was effected on 10.10.2005 at 6.30 A.M.. Police party was headed by SI Tehal Singh. At the time of recovery, SI Tehal Singh was present and after 2-3 hours of the recovery, he left the spot. The recovery is not attested by SI Tehal Singh. It is further submitted that in the present case, the accused had reposgd confidence in the Investigating Officer and no Magistrate or Gazetted Officer was called at the spot. It is further submitted that samples were prepared and sample seals after use were handed over to ASI Bikar Singh. The CFSL form along with the samples were sent to the Chemical Examiner on 17.10.2005. Mr. Ghai has stated that CFSL form was filled upon 17.10.2005 as it has come in the evidence of various witnesses that no such form was filled up at the spot. The CFSL form has been exhibited as Mark A. A chit has been pasted on the CSFL form. The chit bear the seals of ML belonging to Mohan Lal and APS belonging to Ajay Pal Singh. Mr. Ghai has read Ex.P20 an order passed by the Judicial Magistrate 1st Class. The CFSL form has been exhibited as Mark A. A chit has been pasted on the CSFL form. The chit bear the seals of ML belonging to Mohan Lal and APS belonging to Ajay Pal Singh. Mr. Ghai has read Ex.P20 an order passed by the Judicial Magistrate 1st Class. Moga wherein it has been stated that samples have been produced and on the samples the Magistrate had got affixed seal of the Court. Mr. Ghai state that in the Laboratory when the seals were opened, no mention has been made in the report that it bears the seal of Magistrate. 10. Mr. A.S. Brar, counsel for the State has stated that testimonies of official witnesses inspire confidence, therefore, no interference is warranted. 11. I have examined the arguments advanced by Mr. Ghai and counsel for the State. It has been stated by PW-4 HC Tarsem Singh that except seals of APS and ML, there was no other seal on the sample parcels and on the seal chit. I find merit in this argument, as name of the Magistrate is Ms. B.K. Bhatia and where seal has been put as APS and this seal bear initials of Ajay Pal Singh. In the present case property and the samples were handed over to SI Ram Singh. He had stated that the case property with seals intact were handed over to MHC Gurmel Singh. He stated that he does not remember whether those seals were attested by the Magistrate or not. Order Ex.P20 is emphatic. The Magistrate had put her seal on the samples on 11.10.2005. Thus apparently the samples on which the Magistrate had affixed the seal were not sent to the Laboratory. 12. Another suspicious circumstance is that seal after use was not handed over to independent witness Gurdev Singh, rather it was handed over to AS1 Bikkar Singh. ASI Bikkar Singh PW-6 had stated that he had returned the seal to the Investigating Officer on the next day which was handed over to him. Thus, he had belied SI Mohan Lal that seal was returned back and received by him after 2-3 days. On the next date if ASI Bikkar Singh had returned the seal, then it is the day when the Magistrate had affixed the seals. In the present case, Gurdev Singh independent witness has not been examined. Thus, he had belied SI Mohan Lal that seal was returned back and received by him after 2-3 days. On the next date if ASI Bikkar Singh had returned the seal, then it is the day when the Magistrate had affixed the seals. In the present case, Gurdev Singh independent witness has not been examined. Even before giving up independent witness Gurdev Singh as won over, he was not produced before the Court. The argument advanced by Mr. Ghai assume importance that there was no person by the name of Gurdev Singh. Therefore, he was not produced before the Court. Rather he has been given up as won over on false pretext. Mr. Ghai has stated that in case Gurdev Singh independent witness was present at the spot, there was no need to hand over the seal to police officials, rather it is expected that seal after use should have been handed over to independent witness. It is stated that by introducing Gurdev Singh, the Investigating Agency had not acted fairly and properly. Even in this contention of Mr. Ghai, I find merit. In the present case when suspicious circumstance regarding drawing of the samples and handing over the seal are present, it was necessary to remove the doubt and independent witness should have been examined. In the present case, the case property was produced before the Magistrate on 23.11.2005 after a delay of more than 1 month and 10 days. Why SI Tehal Singh who was heading the police party was not examined; why he has been withheld from the Court, is another circumstance which assume importance to infer that independent witness ought to have been examined. ASI Bikkar Singh had stated that SI Tehal Singh remained at the spot for 2-3 hours. Ruqa was sent by SI Tehal Singh. Ruqa does not bear the signatures of SI Tehal Singh. SI Ajay Pal Singh stated that case property was handed over on the next day. SI Ram Singh PW-5 had stated that he deposited the case property with MHC Gurmel Singh on 11.10.2005 along with the samples. There is no explanation as to why the samples were sent to the Chemical Examiner on 17.10.2005 alone with CFSL form. SI Ajay Pal Singh stated that case property was handed over on the next day. SI Ram Singh PW-5 had stated that he deposited the case property with MHC Gurmel Singh on 11.10.2005 along with the samples. There is no explanation as to why the samples were sent to the Chemical Examiner on 17.10.2005 alone with CFSL form. Though PW-9 MHC Gurmel Singh had denied the suggestion that quantity of samples and other words were written later at Mark A after receipt of report of Chemical Examiner, the possibility of tampering cannot be ruled out. 13. Taking into consideration various circumstances, the present appeal is accepted and the appellants are acquitted of the charge.