JUDGMENT Mr. A.N. Jindal, J.:- Nafees @ Akhtar appellant-accused (herein referred as ‘the accused’) was prosecuted for the offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein referred as ‘the Act’) for keeping in his possession 16 kgs of poppy husk, consequently, he was convicted and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.1,00,000/-. 2. In nutshell, the allegations are that on 30.10.1997, Inspector Samunder Singh (PW7) alongwith other police party was present at Sanjay Chowk. In the meantime, the accused was seen coming with the plastic gunny bag on his head. On suspicion, he was apprehended. He was given option of search before a Gazetted Officer or a Magistrate. On giving option, he was searched in the presence of DSP Partap Singh. On search of the plastic gunny bag, it was found to contain poppy husk, out of which a sample of 100 grams of poppy husk was separated and was converted into parcel. On weighment of the remaining poppy husk, it came to be 15 kg. 900 grams which was also converted into a separate parcel. Both the samples as well as poppy husk were taken into possession vide memo Ex.PA which was signed by Sub Inspector Raj Singh and Head Constable Ranbir Singh and also attested by DSP Partap Singh. Ruqa was sent to the police station on the basis of which FIR EX.PB/1 was recorded. Investigating Officer prepared the rough site plan Ex.PG and recorded the statements of witnesses. On receipt of the report of Chemical Examiner, challan against the accused was presented in the Court. 3. The accused was charged under Section 15 of the Act to which he pleaded not guilty and opted to contest. 4. In order to substantiate the charges, the prosecution examined DSP Partap Singh (PW1), Sub Inspector Ram Chander (PW2), MMHC Naresh Kumar (PW3), Constable Naresh Kumar (PW4), Sub Inspector Raj Singh (PW5), Constable Ram Chander (PW6) and Inspector Samunder Singh (PW7). After tendering the report of Forensic Science Laboratory Ex.PH, the prosecution closed its evidence. 5. In his statement under Section 313 Cr.P.C., the accused denied all the allegations and pleaded his false implication. No evidence was led in defence. 6. The trial ended in conviction. 7. Arguments heard. Record perused. 8. The case is based on the testimonies of all the police officials. 5. In his statement under Section 313 Cr.P.C., the accused denied all the allegations and pleaded his false implication. No evidence was led in defence. 6. The trial ended in conviction. 7. Arguments heard. Record perused. 8. The case is based on the testimonies of all the police officials. The Investigating Officer did not join any independent witness, much less made any effort to join such witness at the time of attesting the recovery. No doubt, the Investigating Officer was obliged to associate some independent witness at the time of effecting the recovery but if he could join such witness, he should have at least stated the reasons for non-joining the witnesses much he should have shown that he made earnest efforts to join such witnesses. DSP Partap Singh (PW1) has stated that when he visited the spot, there was no public witness. Though, it was a public place but the Investigating Officer did not call any independent witness. Similarly, Sub Inspector Raj Singh (PW5) has stated that though he remained at the spot for one hour but no independent witness was associated. The occurrence in question is a thoroughfare as admitted by the witnesses. Thus, in these circumstances, the non joining of independent witnesses is fatal to the prosecution case. 9. Statements of the police officers as examined by the prosecution are replete with the serious contradiction which go to the root of the case. DSP Partap Singh (PW1) has stated that he remained at the spot for only 45 minutes whereas Sub Inspector Raj Singh (PW5) has stated that he reached at the spot at 5:30 a.m. and remained there upto 12:15 p.m. i.e. for about seven hours. The occurrence is stated to have taken place at about 5:00 a.m., ruqa was sent to the police station at about 6:00 a.m. Sub Inspector Raj Singh (PW5) admits that ruqa was sent before the arrival of DSP, who reached at 6:00 a.m. but the FIR indicates that ruqa was sent after the DSP arrived there at about 6:30 a.m. FIR reveals that DSP Partap Singh reached the spot alongwith the staff and ruqa was sent after the completion of formalities, therefore, the statement of Sub Inspector Raj Singh (PW5) has destroyed prosecution case wherein it is mentioned that ruqa was sent before the arrival of DSP Partap Singh. Though, DSP Partap Singh (PW1) and Sub Inspector Raj Singh (PW5) state that they were present at the place of occurrence when ruqa was sent. Though DSP Partap Singh and Inspector Raj Singh were present, yet, surprisingly except one seal of Inspector Samunder Singh bearing impression ‘SS’, no other seal of any officer much less DSP Partap Singh was affixed on the case property. The case property was also not produced before the officer incharge of the police station so that the same could be verified. The case property was also not produced before the Ilaqa Magistrate for its verification. Furthermore, there is a delay in sending the sample to the chemical examiner. The recovery took place on 30.10.1997 whereas the sample was sent to the chemical examiner on 17.11.1997. No explanation has come-forth for sending sample for analysis for such a long time. 10. While examining the statement of the accused under Section 313 Cr.P.C., it transpires that the accused was not given any opportunity for leading defence evidence, though the Court for the sake of its convenience recorded the statement of the accused that he closes the defence. Unless he has been asked if he wanted to lead defence, how could it be presumed that he will close the defence. In the given circumstances, it was obligatory on the part of the Court that on the closure of the prosecution evidence, the Court would provide opportunity to the accused to lead defence. In the absence of any statement of the accused to this effect, the accused would be considered to have not been provided such opportunity whereby he will be taken as prejudiced, by this omission on the part of the Court, resulting into failure of justice. 11. Having scrutinized the impugned judgment, it transpires that the trial Court has not taken note of the aforesaid aspect of the case which has resulted into serious miscarriage of justice, consequently, interference at my end in the impugned judgment has become inevitable. For the aforesaid reasons, this appeal is accepted; impugned judgment is set aside and the accused is acquitted of the charges framed against him. He is directed to be set at liberty forthwith. Bail bond and surety bond, furnished by him, stand discharged. Fine, if any, deposited, be refunded. -------------