JUDGMENT Mr. A.N. Jindal, J. (Oral):- Four accused namely Sinder Singh, Angrez Singh, Rattan Singh and Paramjit Singh (since juvenile and whose case was segregated), were prosecuted for the offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein referred as ‘the Act’) for keeping in their possession five bags of poppy husk. Ultimately, vide judgment dated 25.11.2004, passed by Special Court, Karnal, all the accused were convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- each under Section 15 of the Act. Consequently, all the three accused filed different appeal Nos.2518-SB of 2004 and 04 and 30-SB of 2005, which are being decided together by this common judgment. 2. I am informed that accused Angrej Singh has since died, therefore, appeal preferred by him stands abetted. 3. In nutshell, the prosecution version is that on 17.07.2002, ASI Pritam Singh alongwith other police officials was present near Leather Factory at Kachhwa Road, Karnal and was busy in connection with traffic checking. In the meantime, at about 3:30 p.m., the accused Angrej Singh while driving canter bearing registration No.HR-05A-3887 came from the side of Karnal. After stopping the said canter, the accused tried to run away from the spot. However, Rattan Singh succeeded in doing so. The remaining three accused namely Sinder Singh, Paramjit Singh and Angrej Singh were apprehended. After giving option of search, vide notice Ex.PC under Section 50 of the Act, the canter was searched and five bags of poppy husk were recovered. Thereafter, the accused were again given option if they wanted the bags to be searched in the presence of a Magistrate or a Gazetted Officer. Then the accused opted to get the bags searched before a Gazetted Officer and DSP Om Parkash was called. On search of the bags in the presence of DSP Om Parkash, the same were found to contain poppy husk. Two samples of 250 grams each were taken from each bag and thereafter sample parcels and the bags were made into parcels and were sealed with the seal bearing impression ‘JP’. The seal after use was handed over to ASI Rattan Singh. The sample seal impression was prepared separately. Two samples of 250 grams each were taken from each bag and thereafter sample parcels and the bags were made into parcels and were sealed with the seal bearing impression ‘JP’. The seal after use was handed over to ASI Rattan Singh. The sample seal impression was prepared separately. ASI Pritam Singh prepared the rough site plan Ex.PF with correct marginal notes; recorded the statements of witnesses and sent ruqa Ex.PG, on the basis of which FIR Ex.PG/1 was recorded by ASI Sukhbir Singh. On completion of investigation, report under Section 173 Cr.P.C. was presented in the Court. 4. Accused Paramjit Singh was declared as juvenile and the prosecution was directed to file separate challan against him in Court. However, the remaining accused were charged for the offence under Section 15 of the Act to which they pleaded not guilty and opted to contest. 5. In order to substantiate the charges, the prosecution examined Constable Umed Singh (PW1), Hukam Chand, the then MHC of Police Station Sadar, Karnal (PW2), Inspector Balbir Singh (PW3), ASI Rattan Singh (PW4), ASI Pritam Singh (PW5) and DSP Om Parkash Narwal (PW6). 6. When examined under Section 313 Cr.P.C., the accused denied all the allegations and pleaded their false implication in the case. The accused have examined Dr.K.L.Sachdeva, Haryana Nursing Home, Karnal (DW1) and Dr.Rakesh Girdhar, Medical Officer, Government Hospital, Karnal (DW2), in defence. 7. The trial ended in conviction. 8. Arguments heard. Record perused. First of all, coming to the appeal No.30-SB of 2005, filed by Rattan Singh, it may be observed that none of the witnesses has stated that the accused was identified by any of them when he had run away. No test identification parade was got conducted for his identification. However, the two witnesses namely ASI Rattan Singh (PW4) and ASI Pritam Singh (PW5) have categorically stated that they named the accused Rattan Singh as his name was disclosed to them by their co-accused. Meaning thereby, the accused Rattan Singh was introduced only on the basis of statement of the co-accused which is inadmissible in evidence under Section 30 of the Evidence Act. Meaning thereby, the accused Rattan Singh was introduced only on the basis of statement of the co-accused which is inadmissible in evidence under Section 30 of the Evidence Act. It is also well settled by now that some relevancy could be attached to the statements of co-accused, if the same is corroborated by any independent evidence but no such independent evidence has been led on the record in order to prove the complicity of Rattan Singh in the crime. The FIR so recorded by the police does not contain the description of the accused, who had fled away from the spot. The learned State counsel has also not denied this legal proposition. 9. The other argument, raised by learned counsel for the appellants is that Register No.19, maintained in the police station does not disclose if sample seal was deposited with MHC Hukam Chand (PW2), then how the sample seal was handed over to Constable Omed Singh (PW1) by MHC Hukam Chand (PW2). Having given my thoughtful consideration to this contention, it may be observed that PW2 Hukam Chand has categorically testified that he was handed over the samples alongwith the sample seal for depositing the same with the FSL for analysis and he had handed over the same to Constable Umed Singh (PW1) vide RC No.105 and after depositing the same in the FSL, Constable Umed Singh (PW1) had handed over him a receipt. Similarly Constable Umed Singh (PW1), while appearing in the witness box as PW1, has stated that on 19.07.2002, he was a Malkhana Moharar at Police Station Sadar, Karnal. On that day, Head Constale Hukam Chand had handed over him five sample parcels of Choora Post (poppy husk) duly sealed with the three seals of ‘JP’ and one seal bearing impression ‘BS’ alongwith sample seal chit vide RC No.105 dated 19.07.2002. for depositing the same with the Director FSL, Madhuban. He deposited the sample parcels on 19.07.2-002 and after depositing the same, he gave a receipt to MHC Hukam Chand. Thus, consistency between the two statements needs no further explanation and link evidence in given circumstances of the case cannot be said to be missing particularly when the report Ex.PA made by the Forensic Science Laboratory, Madhuban, clearly depicts that they had compared the seal impression on the sample parcels with the sample seal and the same had tallied with each other. 10. 10. The argument with regard to delay in sending of the sample parcels to the Forensic Science Laboratory is also devoid of any merit. Recovery was effected on 17.07.2002 and sample parcels were sent to Forensic Science Laboratory on 19.07.2002. Such minor delay in sending the sample is bound to occur as the police officers remain busy in their multifarious duties but in the absence of any such allegation that samples were not deposited in the malkana in time or in the absence of any imputation with regard to tempering of the samples, this argument is not available to the accused. Even otherwise, in the absence of allegations regarding tempering, such little delay in sending the sample does not cause any prejudice whatsoever to the accused. The statements of the witnesses , so examined by the prosecution, are consistent in all material particulars in as much as with regard to the time place and the manner in which the recovery took place. After effecting the recovery, the case property was presented before Inspector Balbir Singh, SHO, Incharge of Police Station Sadar, Karnal, who after verifying the facts ordered its deposit in the malkhana. The recovery was effected in the presence of DSP Om Parkash Narwal, therefore, it cannot be said that some fabrication could be made by the police officers. 11. As regards the question with regard to conscious possession.,all the incriminating circumstances appearing against the accused were put to them from the very beginning. At the time of framing of charge, it was mentioned that they were to be tried for having in possession five bags, containing poppy husk to which they had replied in negative. The accused also failed to explain their presence in the canter at such odd hours and also could not tell as to why they were travelling in the said canter. In the absence of any such explanation, the burden is not shifted. As soon as the prosecution succeeds in establishing that the accused were found in possession of some contraband; the offence stands proved and the burden is shifted and the presumption under Section 35 read with Section 34 cannot be said to be rebutted in the absence of any cogent and convincing evidence which is missing in this case. The non-asking of any particular question with regard to conscious possession hardly affects the prosecution case. The non-asking of any particular question with regard to conscious possession hardly affects the prosecution case. Neither the legal issue nor the legal questions need to be asked in the statement of the accused. 12. No other argument has been raised. 13. Resultantly, the appeal, preferred by accused Angrez Singh, having been abetted, is dismissed; appeal preferred by accused Rattan Singh is accepted, therefore, the impugned judgment qua him is set aside and he is directed to be set at liberty forthwith. However, the appeal preferred by Sinder Singh is dismissed. Bail bond and surety bond furnished by him stand discharged. Fine, if any, deposited by him be refunded. Copy of the judgment be sent to Chief Judicial Magistrate, Karnal, for compliance. ——————