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2010 DIGILAW 319 (PNJ)

Darshan Singh v. State of Punjab

2010-01-13

MEHINDER SINGH SULLAR

body2010
JUDGMENT Mr. Mehinder Singh Sullar, J.: - Assailing the impugned judgment of conviction and order of sentence dated 5.4.1999 of Special Judge, Darshan Singh-appellant-convict (hereinafter to be referred as “the appellant”) has directed the present appeal, vide which he was convicted and sentenced to undergo rigorous imprisonment for a period of 10 years, to pay a fine of Rs.1 lac and in default of payment of fine, to further undergo the sentence of one year for commission of offence punishable under section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short “the Act”). 2. The matrix of the facts, culminating in the commencement of, relevant for disposal of present appeal and emanating from the record, as unfolded during the trial, is that on 12.9.1994, a police party headed by PW3 SI Satwant Singh and consisted of Head Constables Pal Singh and Gurjant Singh, was present on patrol duty. They arranged a ‘Nakabandi’ at the bridge of village Mari, where PW Bikkar Singh of village Poohla met them. In the meantime, the appellant was seen coming from the side of village Mari on his Priya Make Scooter, bearing registration No.PNC-6800. After noticing the signal of the police party, the appellant stopped his scooter. The police ascertained his whereabouts. He was told that he was suspected to have some contraband articles and he is at liberty to get himself searched in the presence of a Gazetted Officer or a Magistrate. Memo (Ex.PD) was stated to have prepared in this respect, which was attested by Head Constables Pal Singh, Gurjant Singh and PW Bikkar Singh. In the wake of wireless message of PW3, PW1 DSP Mangal Singh was stated to have reached the place of recovery. The search of the appellant was conducted and he was found carrying tying cincture around his waist containing opium wrapped in a glazed paper. A sample of 10 grams of opium was separated and residue, on weighing, was found to be 990 grams. The sample and remaining opium were sealed in separate parcels with the seal bearing impression ‘SS’. The seal after use was handed over to HC Pal Singh. The entire case property was taken into possession vide recovery memo (Ex.PA), which was attested by the witnesses. The scooter of the appellant was also taken into possession vide recovery memo (Ex.PE). The sample and remaining opium were sealed in separate parcels with the seal bearing impression ‘SS’. The seal after use was handed over to HC Pal Singh. The entire case property was taken into possession vide recovery memo (Ex.PA), which was attested by the witnesses. The scooter of the appellant was also taken into possession vide recovery memo (Ex.PE). Memo Ex.PF with regard to personal search of the appellant was also prepared. 3. The case of the prosecution further proceeds that PW3 SI Satwant Singh sent ruqqa (Ex.PG) to Police Station through PW2 Constable Jaswinder Singh, on the basis of which, the formal FIR (Ex.PG/1) was registered by ASI Baldev Singh. The grounds of arrest were stated to have been disclosed to the accused and memo (Ex.PH) was prepared in this respect. PW3 prepared the rough site plan (Ex.PJ) of the place of recovery. The Investigating Officer recorded the statements of the witnesses under section 161 Cr.PC and completed the other formalities at the spot. The sample was sent to the Chemical Examiner. The Chemical Examiner declared the contents of the opium vide his report (Ex.PL). 4. Levelling a variety of allegations, in all, according to the prosecution that on 12.9.1994, in the wake of search, 1 kg. of opium was recovered from the possession of the appellant without any permit or licence. On the basis of aforesaid allegations, the present case was registered against the appellant vide FIR No.54 dated 12.9.1994, on accusation of having committed the offence punishable under section 18 of the Act by the police of Police Station Nathana, District Bathinda, in the manner indicated here-in-above. 5. Having completed all the codal formalities, the appellant was charge sheeted for commission of offence under section 18 of the Act by the trial Judge, vide order dated 6.2.1995. As the appellant did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution. 6. The prosecution, in order to substantiate the charge framed against the appellant, examined PW1 DSP Mangal Singh, PW2 Constable Jaswinder Singh and PW3 SI Satwant Singh in oral evidence. As the appellant did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution. 6. The prosecution, in order to substantiate the charge framed against the appellant, examined PW1 DSP Mangal Singh, PW2 Constable Jaswinder Singh and PW3 SI Satwant Singh in oral evidence. The prosecution has also tendered recovery memo Ex.PA, spot memo Ex.PB, affidavit of Jaswinder Singh Ex.PC, writing Ex.PD, recovery memo of scooter Ex.PE, recovery memo of personal search Ex.PF, ruqqa Ex.PG, FIR Ex.PG/1, endorsement Ex.PG/2, memo of grounds of arrest Ex.PH, rough site plan Ex.PJ, application for production of case property Ex.PK, endorsement Ex.PK/1, report of Chemical Examiner Ex.PL and statement of Bikkar Singh PW recorded u/s 161 Cr.PC Ex.PX in documentary evidence. It will not be out of place to mention here that independent witness Bikkar Singh was given up by the prosecution as having been won over by the appellant. 7. Having closed the prosecution evidence, statement of the appellant was recorded as contemplated under section 313 Cr.PC. He denied the prosecution version in its entirety and pleaded false implication. The appellant claimed that he was brought from his village in the presence of Sarpanch Balbir Singh, Pritam Singh Chowkidar and Bara Singh Member Panchayat, in connection with dispute with Bikkar Singh. In order to substantiate his defence, the appellant examined DW1 Balbir Singh, Ex-Sarpanch of village Jethuke, who deposed that about 4½ years ago, police of Police Station Nathana had come to their village and arrested the accused in their presence. The police told them that the accused was arrested as he had a dispute of tempo with Bikkar Singh of village Poohla. Nothing incriminating was recovered from the accused. Later on, they came to know that he has been falsely implicated in the present case. 8. Likewise, DW2 Bikkar Singh (who was an independent recovery witness of the prosecution) has maintained, on oath, that the appellant was neither known to him nor any recovery of opium was ever effected from him by the police. He admitted that he is a registered bad character No.10. DW2 explained that the police used to obtain his thumb impressions/signatures on blank papers. He has also stated that neither recovery memo Ex.PE nor writing Ex.PD or memo of arrest Ex.PH were prepared in his presence. 9. He admitted that he is a registered bad character No.10. DW2 explained that the police used to obtain his thumb impressions/signatures on blank papers. He has also stated that neither recovery memo Ex.PE nor writing Ex.PD or memo of arrest Ex.PH were prepared in his presence. 9. The Special Judge, after taking into consideration the evidence on record, convicted and sentenced the appellant, in the manner indicated here-inabove. 10. The appellant did not feel satisfied with the impugned judgment of conviction and order of sentence and filed the present appeal. That is how I am seized of the matter. 11. At the very outset, learned counsel for the appellant has contended with some amount of vehemence that the story of the prosecution is highly improbable and Bikkar Singh independent recovery witness was not examined by the prosecution. On the contrary, he demolished the prosecution version while appearing as DW2. The argument further proceeds that the mandatory provisions of section 50 of the Act has not been complied with by the investigating agency at the time of alleged recovery in the wake of personal search and even the opium parcel Ex.P1 was not produced in the court. The prosecution did not examine HC Pal Singh, to whom the seal after use was handed over and ASI Baldev Singh, who recorded the FIR. So, link evidence is also missing. 12. Raising a variety of arguments in all, according to learned counsel for the appellant that since the evidence brought on record by the prosecution is discrepant and untrustworthy, therefore, the appellant deserves to be acquitted. 13. Supporting the impugned judgment, on the other hand, learned State counsel has urged that the chain of evidence of prosecution is complete by reliable evidence and thus the prosecution case is fully proved on record against the appellant. 14. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, it would be expedient to have a brief resume of the evidence brought on record by the prosecution, in order to decide the real controversy and points involved in this appeal. 15. 15. First of all, PW1 DSP Mandal Singh has stated, on oath, that on 12.9.1994, on receipt of a wireless message, he rushed to the canal minor bridge in the area of village Mari (spot) where PW3 SI Satwant Singh and his other companions met him. Accused Darshan Singh and PW Bikkar Singh were already present there. He conducted the search of the accused. Again said, the SHO conducted the search of the accused in his presence and opium wrapped around his waist in a glazed paper was recovered. 10 grams of opium was taken out as a sample and the remaining opium was weighed, which came to be 990 grams. According to PW1, before taking the sample, the opium was weighed and then it came to be 1 kg. The sample and remaining opium were sealed in separate parcels with the seal ‘SS’. The same were taken into possession vide recovery memo Ex.PA attested by him, Bikkar Singh and HC Pal Singh. Specimen seal impression Ex.P2 was retained. The seal after use was handed over to HC Pal Singh. 16. The next to note is the testimony of PW3 SI Satwant Singh, who has also, inter-alia, maintained that the appellant came on his scooter at the relevant time. He was signaled to stop. He was apprised that he was suspected to have some contraband articles and is at liberty to get himself searched in the presence of a Gazetted Officer or a Magistrate and memo Ex.PD in this respect, was prepared, which was attested by the accused, HCs Pal Singh, Gurjant Singh and Bikkar Singh PWs. He sent wireless message. PW1 DSP Mangal Singh visited the spot and in his presence and that of DSP Mangal Singh. Again stated that he conducted the search of the accused in the presence of DSP Mangal Singh and other witnesses, whereby 1 kg. of opium was found tying a cincture around his waist wrapped in a glazed paper. Out of it, 10 grams was separated as sample and remaining, on weighment, came to be 990 grams. Instead of reproducing the statement in toto and in order to avoid repetition, suffice it to say, that PW3 attempted to corroborate the investigation carried out by him at the spot, as regards the sealing of sample and recovery of opium is concerned. Instead of reproducing the statement in toto and in order to avoid repetition, suffice it to say, that PW3 attempted to corroborate the investigation carried out by him at the spot, as regards the sealing of sample and recovery of opium is concerned. PW3 has stated that the seal, after use, was handed over to HC Pal Singh and the entire case property was taken into possession vide recovery memo Ex.PA, which was attested by the witnesses. 17. The cardinal fundamental principles of criminal law/jurisprudence have to be kept in focus while deciding such criminal cases. Some of these are that the absolute onus is always on the prosecution to prove its case beyond any reasonable doubt. The accused cannot possibly be convicted without any legal substantive evidence as the evidence is essential element in the criminal proceedings, notwithstanding the seriousness of the allegations alleged against the accused. Because criminal proceedings require strict proof of guilt. It is the evidence, on the basis of which, the decision of a criminal court is based and is the requirement of criminal justice. Otherwise, in the absence of the same, the courts have no option but to record an order of acquittal howsoever painful the same may be. 18. Sequelly, the Hon’ble Apex Court in case Man Bahadur v. State of H.P., [2008(6) Law Herald (SC) 3988] : 2008 (4) R.C.R. (Criminal) 563 (para 8) has observed as under:- “(8) Recently, this Court in Noor Aga Vs. State of Punjab and Anr., [2008(4) Law Herald (SC) 2896 : 2008(3) Law Herald (P&H) 2181 (SC)] : 2008 (3) RCR (Criminal) 633 : 2008 (4) RAJ 381 : 2008 (9) SCALE 681 , categorically, held that as the provisions contained in the N.D.P.S. Act are penal in nature, all requirements laid down therein must be complied with strictly, stating: “149. Section 50 of the Act provides for an option to be given. This Court in Baldev Singh (supra) quoted with approval the decision of the Supreme Court of United States in Miranda Vs. Section 50 of the Act provides for an option to be given. This Court in Baldev Singh (supra) quoted with approval the decision of the Supreme Court of United States in Miranda Vs. Arizona [(1966) 384 US 436} in the following terms: “The Latin maxim salus populi suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex (safety of the State is the supreme law) coexist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be right, just and fair.” 150. Justness and fairness of a trial is also implicit in Article 21 of the Constitution. 151. A fair trial is again a human right. Every action of the authorities under the Act must be construed having regard to the provisions of the Act as also the right of an accused to have a fair trial. 152. The courts, in order to do justice between the parties, must examine the materials brought on record in each case on its own merits. Marshalling and appreciation of evidence must be done strictly in accordance with the well known legal principles governing the same; wherefor the provisions of the Code of Criminal Procedure and Evidence Act must be followed. 153. Appreciation of evidence must be done on the basis of materials on record and not on the basis of some reports which have nothing to do with the occurrence in question. 154. Article 12 of the Universal Declaration of Human Rights provides for the Right to a fair trial. Such rights are enshrined in our Constitutional Scheme being Article 21 of the Constitution of India. If an accused has a right of fair trial, his case must be examined keeping in view the ordinary law of the land. 155. It is one thing to say that even applying the well known principles of law, they are found to be guilty of commission of offfences for which they are charged but it is another thing to say that although they cannot be held guilty on the basis of the materials on record, they must suffer punishment in view of the past experience of otherwise.” 19. Such thus being the position of evidence on record and law, now the first short and significant question, though important, arises for determination in this appeal is whether the mandatory provisions of section 50 of the Act has been complied with or not, while conducting the personal search of the appellant. Section 50 of the Act is as under:- “(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched parting with possession of any narcotic drug and psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973. (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such believe which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior.” 20. (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such believe which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior.” 20. Thus, the co-joint reading of this provision postulates four situations/stages i.e. (i) when any officer is about to search any person, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer or to the nearest Magistrate; (ii) the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate; (iii) the Gazetted Officer or the Magistrate, before whom, any such person is brought, shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made and (iv) When such officer has reasons to believe that it is not possible to take the person to be searched parting with possession of any narcotic drug and psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 and after search, the officer shall record the reasons for such believe which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior. 21. Likewise, it is now well settled principle of interpretation of statute, that the words of an enactment are to be given their ordinary, popular and natural meaning. If such meaning is clear and unambiguous, the effect should be given to a provision of a statute in the same manner whatever may be the consequences. The basis of this principle is that the object of all interpretations being to know what the legislature intended, whatever was the intention of the legislature has been expressed by it through words which are to be interpreted accordingly, because the intention of the legislature can be deduced only from the language through which it has expressed itself. If the language of a statute is plain, the only duty of the Court is to give effect to it and Court has no business to look into the consequences of such interpretation. If the language of a statute is plain, the only duty of the Court is to give effect to it and Court has no business to look into the consequences of such interpretation. The Court is under an obligation to expound the law as it exists and leave the remedy to the legislature if harsh conclusions result from such exposition. Equally, it is now well settled proposition of law that mandatory provisions and command of law have to be complied with in the same manner as envisaged and mandated by any statute and it cannot be interpreted otherwise. 22. Possibly, no one can dispute about the proposition of law laid down by the Hon’ble Apex Court in cases State of Punjab v. Baldev Singh, 1999 (3) RCR (Criminal) 533, State of Punjab v. Balbir Singh, 1994 (1) RCR (Criminal) 736, Karnail Singh v. State of Haryana, [2010(2) Law Herald (SC) 991] : 2009 (5) RCR (Criminal) 515 and State of Himachal Pradesh v. Pawan Kumar, [2005(2) Law Herald (SC) 617] : 2005(2) RCR (Criminal) 622 that it is imperative on the officer to inform the accused that he has a right of search before Magistrate or Gazetted Officer and in case of personal search, the search is not conducted as per option of the accused, it would vitiate his conviction and violation of mandatory provisions of section 50 of the Act in case of personal search is fatal to the prosecution case. 23. Therefore, it was obligatory on the part of the searching officer to strictly comply with the mandatory provisions of section 50 of the Act, while conducting the personal search of the appellant. Even female is to be searched by female police officers. However, it cannot possibly be interpreted, to mean that in every case, searching officer is required to strictly comply with these provisions in case of search of any bag/gunny bag or vehicle or any other container, carrying the contraband articles. It is reiterated that these provisions are only mandatory in case of personal search where the privacy and liberty of the person is directly involved, in order to uphold the individual human rights and dignity, suspected to be in possession of some contraband and not otherwise. The legislative intent incorporating these provisions is clear and implicit in this relevant connection. 24. The legislative intent incorporating these provisions is clear and implicit in this relevant connection. 24. Having regard to the rival contentions of learned counsel for the parties, to me, there is a complete violation of mandatory provisions of section 50 of the Act. It is not a matter of dispute that the opium was recovered from the cincture (belt) wrapped in a glazed paper around his waist and is a case of personal search. In this respect, PW3 claimed that the accused was told that he was suspected to have some contraband article and he is at liberty to get himself searched in the presence of a Magistrate or Gazetted Officer and Memo Ex.PD was prepared, which was thumb marked by the accused and attested by Head Constables Pal Singh and Gurjant Singh and PW Bikkar Singh. But it is no where mentioned in Ex.PD that the appellant was apprised of his right to be taken and searched in the presence of a Gazetted Officer or nearest Magistrate. Because only the fact of search before a Gazetted Officer is mentioned in it. This means that offer was partial and not complete as is required under section 50 of the Act. Moreover, it is also so depicted in memo Ex.PD that the appellant reposed faith in the police party. Once, he had reposed faith in the police party, then there was no occasion nor was legally essential for PW3 either to call or wait for arrival of PW1. Instead, he ought to have proceeded to search the appellant under section 50 (5) of the Act as per procedure prescribed under section 100 Cr.PC and to send report to his superior officer within stipulated period as contemplated under section 50 (6) of the Act. 25. Moreover, the Memo Ex.PD was stated to be signed by Head Constables Pal Singh and Gurjant Singh. But the prosecution did not examine them in Court. PW Bikkar Singh, who was stated to have signed the memo Ex.PD as well, did not support the prosecution case at all and while appearing as DW2, he has stoutly denied having prepared any such memo by PW3 in his presence. Even Ex.PD also bears the thumb impressions of Darshan Singh appellant. PW Bikkar Singh, who was stated to have signed the memo Ex.PD as well, did not support the prosecution case at all and while appearing as DW2, he has stoutly denied having prepared any such memo by PW3 in his presence. Even Ex.PD also bears the thumb impressions of Darshan Singh appellant. It has not been explained by the State counsel that under what provisions of law, such statement of the appellant recorded by PW3 is admissible in evidence, which is otherwise contrary to the provisions of sections 161 and 162 Cr.PC in this relevant connection. Meaning thereby, there is not an iota of evidence, even to suggest remotely, that PW3 apprised and offered to take the appellant before any Gazetted Officer or nearest Magistrate as envisaged under section 50 of the Act. 26. Keeping in view the provisions of the Act and the punishment prescribed therein being indisputably stringent flowing from elements such as a heightened standard for bail, absence of any provision for remissions, specific provisions for grant of minimum sentence, enabling provisions granting power to the Court to impose fine of more than maximum punishment of Rs.2,00,000/-, even awarding of death penalty in certain cases and various other stringent provisions where the statute confers such drastic powers. In that eventuality, the prosecution was legally required to strictly and scrupulously prove the compliance of section 50, in the same manner as contemplated in the Act and not otherwise. After the search, PW3 ought to have recorded the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate officer superior under section 50 (6) of the Act. 27. Thus, it would be seen that neither PW3 took the appellant without any unnecessary delay to the nearest Gazetted Officer or Magistrate nor he has recorded any cogent reasons for not doing so. Instead, he summoned PW1, who was not even DSP Incharge of the area at the time of recovery, wherein in his cross-examination, he (PW1) admitted that Avtar Singh was the concerned DSP at the relevant time, but DSP Avtar Singh was not called by PW3, for the reasons best known to him. It remained a mystry why concerned DSP was not called by PW3. It remained a mystry why concerned DSP was not called by PW3. Therefore, it is evident that if the entire facts and circumstances indicated here-in-above, are put together, then the conclusion is inescapable that the Investigating agency did not act accordingly and only purported to act to comply with the mandatory provisions by preparing the memo Ex.PD in a routine fashion and in fact did not comply with the mandatory provisions of section 50 of the Act as such. Thus, non-observation of statutory and mandatory right has caused a great prejudice to the case of the accused. The same is fatal to the case of the prosecution, under the present set of circumstances. 28. Sequelly, the argument of learned counsel for the appellant that prosecution has failed to connect the case property with the appellant in the court, has considerable force. PW3, the main Investigating Officer, has categorically admitted in his cross-examination that he has not seen the case property today in the Court nor has seen the scooter. Similarly, PW1 while appearing in the Court did not state that the parcel of opium Ex.P1 is the same, which was recovered from the possession of the accused at the relevant time. It means, the prosecution did not connect the case property with the appellant in any manner. 29. Moreover, the prosecution claimed that the opium in question was recovered from the possession of the appellant vide recovery memo Ex.PA in the presence of PW Bikkar Singh, HCs Pal Singh and Gurjant Singh. The prosecution did not examine either of them. ASI Baldev Singh, who recorded the FIR, was also not examined. Meaning thereby, the prosecution has withheld the material witnesses, which could prove the recovery of the contraband from the appellant during the trial, for the reasons best known to the Investigating Officer and legal adverse inference in this respect, is inevitable against the prosecution. 30. On the other hand, the appellant has examined Bikkar Singh as DW2, who has categorically stated that neither recovery of opium or poppy husk was ever effected from the accused nor he was arrested by the police of Police Station Nathana, in his presence. DW2 admitted that he is habitual offender and bad character recorded as No.10. His thumb impressions/signatures on blank papers used to be obtained by the police. DW2 admitted that he is habitual offender and bad character recorded as No.10. His thumb impressions/signatures on blank papers used to be obtained by the police. He categorically maintained that no recovery memos Ex.PD, Ex.PE and Ex.PH were prepared by the police in his presence. Thus, the sole independent recovery witness instead of supporting has totally demolished the recovery of the contraband from the appellant. 31. The argument of learned State counsel that the material witness Bikkar Singh has been won over and his evidence as DW2 has no bearing on the prosecution case, pales into insignificance, because assuming for the sake of argument, DW2 has been won over by the accused, it was still necessary on the part of the prosecution that such witness must be examined, so that he could duly be confronted with his earlier statement recorded by the police, to reveal the truth in this respect, in view of the law laid down by the Division Bench of this Court in case State of Punjab v. Surjit Singh, 2008 (1) RCR (Crl.) 266 (P&H) and Single Bench in case Basir Mohammad v. State of Haryana, 2008 (3) RCR (Criminal) 244. So much so, DW2 Bikkar Singh was not duly confronted with the contents of his alleged earlier statement recorded by the police, in order to reveal the truth, as per section 154 of the Evidence Act. 32. As is evident from the record that according to PW1 and PW3, the sample and remaining opium were separately sealed with the seal ‘SS’, which after use was handed over to HC Pal Singh. HC Pal Singh was not examined by the prosecution, so as to prove when he had handed over the used seal to the Investigating Officer nor any other evidence is forthcoming on record, with regard to handing over the used seal to the Investigating Officer by HC Pal Singh, which was essential to rule out the possibility of tampering of the parcels. 33. Moreover, the link evidence adduced by the prosecution was not at all satisfactory. Ex.PK is the memo prepared by PW3, in which he has sought permission of the Illaqa Magistrate to deposit the case property with MHC Mal Khanna, Bathinda and to send the sample to the Chemical Examiner. 33. Moreover, the link evidence adduced by the prosecution was not at all satisfactory. Ex.PK is the memo prepared by PW3, in which he has sought permission of the Illaqa Magistrate to deposit the case property with MHC Mal Khanna, Bathinda and to send the sample to the Chemical Examiner. The Judicial Magistrate Ist Class, Bathinda ordered on 13.9.1994 that the accused does not want to get the property re-photographed or re-sampled and it be deposited in the Judicial Mal Khanna. This order appears to have been passed in the absence of the accused. No evidence is forthcoming on record as to when the case property and sample were deposited in the Mal Khanna and that the same were not tampered with by any person or remained in safe custody. PW2 Constable Jaswinder Singh has stated, in his affidavit (Ex.PC) that on 14.9.1994 he was summoned by SI/SHO Satwant Singh, who handed over him the sample for delivering the same to the office of Chemical Examiner, Patiala and he deposited the same on 15.9.1994. Therefore, the link evidence, in regard to the safe custody of sample and case property, is missing, which casts a shadow of doubt on the case of the prosecution in view of the observations of this Court in case Bhola Singh v. State of Punjab, [2005(1) Law Herald (P&H) 354] : 2005 (2) RCR (Crl.) 520 (P&H). 34. In addition to it, learned counsel for the petitioner has pointed out certain discrepancies in the statements of official witnesses. According to PW1, he did not state the reasons to the accused pertaining to his arrest. According to PW3, the reasons of arrest were disclosed. As per PW1, he remained at the spot for about 1½ hours, but as per PW3, PW1 remained at the spot for half an hour. According to PW1, before taking the sample out, it was weighed and then it came to one Kg., while according to PW3, 10 grams was separated as sample first and the remaining opium on weighment came to be 990 grams. 35. According to PW1, before taking the sample out, it was weighed and then it came to one Kg., while according to PW3, 10 grams was separated as sample first and the remaining opium on weighment came to be 990 grams. 35. It is, therefore, a matter of fact that if non-compliance of mandatory provisions of section 50 of the Act in case of personal search of the appellant, which has caused a great prejudice to his case, the fact that the case property was neither proved nor produced in the court nor connected with the appellant, missing of link evidence, non-examination of material witnesses i.e. Head Constables Pal Singh and Gurjant Singh, ASI Baldev Singh and Bikkar Singh PW, further, the examination of Bikkar Singh DW2 by the appellant, inherent contradictions in the statements of official witnesses and totality of other facts and circumstances emanating from the record as discussed here-in-above are put together, then to my mind, conclusion is inescapable and irresistible that the evidence of the prosecution falls short, as is required to prove the criminal charge against the appellant under the Act. Therefore, it is held that the prosecution has miserably failed to prove the recovery of opium from the appellant on the fateful day and he deserves the benefit of reasonable doubt, in the obtaining circumstances of the case. 36. In the light of the aforesaid reasons, the appeal is hereby accepted and the impugned judgment of conviction and order of sentence are set aside. Having extended the benefit of reasonable doubt, the appellant is acquitted of the charge framed against him, Consequences will follow accordingly.