JUDGMENT Mr. Kanwaljit Singh Ahluwalia, J.(Oral):- By this common judgment (1) Criminal Appeal No.819-SB of 2002 preferred by Jaila Singh and (2) Criminal Appeal No.846-SB of 2002 filed by Makhan Singh, shall be decided together. 2. Both the appellants were tried in a case FIR No.57 dated 03.08.1998 registered at Police Station Joga under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, ‘the Act’). The Judge, Special Court, Mansa, vide his judgment dated 15th April, 2002 held them guilty of an offence punishable under Section 15 of the Act and vide a separate order of even date, sentenced them as under: “1. Accused Makhan Singh is sentenced to undergo RI for three years and to pay a fine of Rs.6,000/-, in default to pay fine to undergo further RI for three months. 2. Accused Jaila Singh is sentenced to undergo RI for two years and to pay a fine of Rs.4,000/-, in default to pay fine to undergo further RI for two months.” 3. ASI Kulwant Singh PW-2 had sent a ruqa Ex.PJ to the Police Station for registration of a case. It was stated therein that he along with his companion police officials, namely ASI Darshan Singh, Constable Balwinder Singh and SPO Mander Singh; was going on a Government vehicle (Canter) from village Ralla to village Bhopal on patrol duty. When they reached on the triangle of link road of village Bhopal, they spotted two young persons coming on a scooter. They had kept a jute bag in between the driver seat and pillion seat. Seeing the police party, they made an attempt to turn the scooter. On suspicion, ASI Kulwant Singh stopped the Canter and along with the companion police officials, apprehended both the young persons. Registration number of the scooter was PB-10A 1252. The driver of the scooter disclosed his name as Makhan Singh son of Basant Singh and the pillion rider as Jaila Singh son of Jupa Singh, Scheduled Caste, residents of Makhewala. As ASI Kulwant Singh suspected that they were having some contraband article, a written option was given to them to get themselves searched in front of a Gazetted Officer or a Magistrate. Both the accused gave their consent to be searched in the presence of a Gazetted Officer. As ASI Kulwant Singh suspected that they were having some contraband article, a written option was given to them to get themselves searched in front of a Gazetted Officer or a Magistrate. Both the accused gave their consent to be searched in the presence of a Gazetted Officer. During interrogation, Munshi Singh son of Tittar Singh, Scheduled Caste, resident of village Bhopal, also arrived at the spot and he was joined by the police party as an independent witness. In his presence, a consent memo was prepared and a wireless message was sent to the Police Station. Varinderpal Singh, DSP, Sub Division, Budhladha arrived at the spot along with his gunman. He disclosed his rank to the accused and the fact that he was a Gazetted Officer. In the presence of DSP Varinderpal Singh, accused were searched and in the gunny bag, poppy husk was found. The same was weighed as 25 kilograms. A sample of 100 grams was separately drawn and the remaining poppy husk was weighed as 24.900 kilograms. The recovery was effected in the Revenue Estate of village Bhopal on 3rd August, 1998 at about 8.30 p.m. 4. The above said FIR was investigated and a report under Section 173 Cr.P.C. was submitted. 5. Both the appellants were charged by the Court of Special Judge. The charge stated that on 3rd August, 1998 at about 8.30 p.m. in the area of village Bhopal, the appellants were found in possession of 25 kilograms of poppy husk without any licence or permit. Thus, they committed an offence punishable under Section 15 of the Act. 6. Both the appellants pleaded not guilty and claimed trial. 7. Prosecution examined DSP Varinderpal Singh as PW-1. He stated that on receipt of a wireless message, he reached at the spot. ASI Kulwant Singh along with Munshi Singh, an independent person, was present there. A Scooter Ex.P1 was also there. After the necessary formalities were carried out, recovery of 25 kilograms of poppy husk was effected from the accused. This witness further stated that the seal, after use, was handed over to ASI Darshan Singh and the entire case property along with the scooter was taken into possession vide memo Ex.PC by the Investigating Officer. 8. Investigating Officer Kulwant Singh appeared as PW-2 and reiterated as to what was stated in the ruqa Ex.PJ, on the basis of which formal FIR Ex.PJ/1 was registered. 8. Investigating Officer Kulwant Singh appeared as PW-2 and reiterated as to what was stated in the ruqa Ex.PJ, on the basis of which formal FIR Ex.PJ/1 was registered. He further stated that on return to the Police Station, he produced the accused and the case property before ASI Bant Singh PW-6, who was working as SHO at that time. SHO Bant Singh affixed his seal, bearing impression ‘BS’, on the parcels of case property and a sample seal Ex.P4 was also prepared. The case property was taken into possession by the SHO vide memo Ex.PM. In crossexamination, this witness stated that Munshi Singh arrived at the spot after consent of the accused was obtained. It was again stated by this witness that the independent witness arrived, while he was taking consent of the accused. A reference was made to a document mark DA to this witness, which was purportedly scribed and signed by HC Jagdev Singh. He stated that he could not identify the signatures and handwriting of HC Jagdev Singh. In further cross-examination, this witness admitted that place of recovery was a thoroughfare. 9. Devinder Kumar, Junior Assistant from the office of District Transport Officer, Sangrur appeared as PW-3 and proved the ownership of scooter bearing registration No. PB-10A 1252 on the name of one Bala Singh son of Dayala Singh. 10. Constable Balwinder Singh PW-4 tendered his affidavit Ex.PI, wherein he stated that on 5th August, 1998 one sample of poppy husk weighing 100 grams bearing seals ‘KS’ and ‘BS’ was handed over to him by ASI Bant Singh. He had taken the same to the office of SSP and after the forwarding form was filled-up, he deposited the same in the Forensic Science Laboratory on 6th August, 1998. In cross-examination, this witness stated that on the night of 5th August, 1998, he remained in his quarter and the sample remained in his possession. 11. ASI Darshan Singh, another official who had accompanied ASI Kulwant Singh PW-2, appeared as PW-5 and corroborated the testimony of ASI Kulwant Singh PW-2. This witness in cross-examination, stated that he identified the signatures of HC Jagdev Singh on writing mark DA. Earlier a reference was made to this writing before ASI Kulwant Singh PW-2, but he stated that he was not conversant with the signatures and handwriting of HC Jagdev Singh. 12. This witness in cross-examination, stated that he identified the signatures of HC Jagdev Singh on writing mark DA. Earlier a reference was made to this writing before ASI Kulwant Singh PW-2, but he stated that he was not conversant with the signatures and handwriting of HC Jagdev Singh. 12. SHO of the Police Station, ASI Bant Singh appeared as PW-6 and stated that on 3rd August, 1998, he was posted as ASI at Police Station Joga. ASI Kulwant Singh PW-2 had produced before him the sample drawn at the spot, case property and the accused. On the next day, i.e. 4th August, 1998, he produced the accused along with the case property before the Magistrate, who passed an order Ex.PA/1. The Magistrate had directed him to deposit the case property in the malkhana, but since there was no space in the judicial malkhana, he retained possession over the case property. In cross-examination, this witness stated that he did not make any inventory of the case property, while it was produced before him. Photograph of the case property was not taken by him and no sample of the poppy husk was drawn before him. ASI Kulwant Singh had produced before him a scooter, a parcel of sample and a parcel of remaining poppy husk along with personal search articles. ASI Bant Singh PW-6 further stated that the sample parcel and the sample seal were handed over to Constable Balwinder Singh on 5th August, 1998. 13. Shishan Pal PW-7 stated that he had sold the scooter bearing registration No.PB-10A 1252 to Makhan Singh accused. 14. Thereafter, prosecution closed its evidence. Statements of the accused were recorded under Section 313 Cr.P.C. All incriminating evidence was put to them. They denied the same and pleaded false implication. Appellant Makhan Singh gave the following version: “I am innocent. SI Jalour Singh of PS Bhikhi called me before the registration of this case at PS Joga, through Jagdev Singh Constable and demanded bribe, but I refused to give bribe money. So he planted this case against me. Nothing was recovered from me.” 15. In defence, Munshi Singh, who was joined as an independent witness, appeared as DW-1 and stated that the accused Makhan Singh was not known to him. He further stated that he was never joined by the police party and no poppy husk was recovered in his presence. 16. Mr. Nothing was recovered from me.” 15. In defence, Munshi Singh, who was joined as an independent witness, appeared as DW-1 and stated that the accused Makhan Singh was not known to him. He further stated that he was never joined by the police party and no poppy husk was recovered in his presence. 16. Mr. Paramjeet Singh Dhaliwal, Advocate appearing on behalf of the appellant Makhan Singh has laid much emphasis upon the document Ex.DA, which is a communication dated 1st August, 1998 addressed to Makhan Singh by Constable Jagdev Singh. The sum and substance of this communication is that accused Makhan Singh was called by SHO Jalour Singh of Police Station Joga. The Investigating Officer ASI Kulwant Singh PW-2 had not admitted execution of this communication, however, ASI Darshan Singh PW-5 had identified the handwriting of Constable Jagdev Singh. Constable Jagdev Singh has not been examined by the defence to prove authenticity of the document Ex.DA. Therefore, it can be said that accused has failed to conclusively prove that he was called by SHO Jalour Singh and was falsely implicated in the present case, especially when ASI Bant Singh PW-6 has stated that on 3rd August, 1998, he was posted as SHO of Police Station Joga, as SI/SHO Jagdev Singh had proceeded on leave for five days. 17. However, there are certain facts of this case, which are required to be noticed by this Court while appreciating the evidence. Munshi Singh, who was joined as an independent witness, has not supported the prosecution and has rather appeared as a defence witness to state that no recovery was effected in his presence. DSP Varinderpal Singh PW-1 has also stated that the seal, after use, was not handed over to the independent witness Munshi Singh but to ASI Darshan Singh PW-5. 18. What is intriguing in this case, is the custody of sample drawn at the spot. Out of the total poppy husk weighing 25 kilograms, a sample of 100 grams was separately drawn and the remaining poppy husk was put into a parcel Ex.P2. The sample parcel and parcel Ex.P2 were sealed by the Investigating Officer with his seal ‘KS’. A sample seal Ex.P3 was also prepared at the spot. Out of the total poppy husk weighing 25 kilograms, a sample of 100 grams was separately drawn and the remaining poppy husk was put into a parcel Ex.P2. The sample parcel and parcel Ex.P2 were sealed by the Investigating Officer with his seal ‘KS’. A sample seal Ex.P3 was also prepared at the spot. The Investigating Officer ASI Kulwant Singh PW-2 in his examination in chief, stated as under: “… … … On return to Police Station, I produced the accused and case property before ASI Bant Singh who was working as SHO at that time. SHO Bant Singh affixed his seal bearing impression BS on all the parcels of case property and prepared sample seal Ex.P4… … …” 19. There is no specific mention of the sample parcel Ex.P2 and the sample seal Ex.P3 prepared at the spot, in the testimony of ASI Kulwant Singh PW-2. Even if for convenience, a margin is granted to prosecution that ASI Kulwant Singh PW-2, due to loss of memory, has not specifically stated so, in his evidence, this Court has to probe further. ASI Bant Singh, who was acting as an SHO, appeared as PW-6. In his examination in chief, he stated as under: “… … … On same day, ASI Kulwant Singh produced before me, both accused persons and articles of case property. I had interrogated accused persons and confined them in police lockup. I had taken into possession articles of case property produced by ASI Kulwant Singh vide memo Ex.PM. I put my seal impression ‘BS’ on parcels. Sample of my seal is Ex.P5. ASI Kulwant Singh and myself signed such memo Ex.PM… … …” 20. A perusal of memo Ex.PM reveals that a sample of 100 grams of poppy husk was handed over to ASI Bant Singh. He had not deposited the same in the malkhana of Police Station. For the whole night, from 3rd August, 1998 till 4th August, 1998, he kept the sample and the case property in his possession. On the next morning, the case property was produced before the Illaqua Magistrate/JMIC (Duty). He had submitted an application Ex.PN and stated therein that a sample of 100 grams of poppy husk was drawn by ASI Kulwant Singh. He had produced only the case property weighing 24.900 kilograms before the Magistrate and the Magistrate passed an order on 4th August, 1998, which is at Ex.PN/1. He had submitted an application Ex.PN and stated therein that a sample of 100 grams of poppy husk was drawn by ASI Kulwant Singh. He had produced only the case property weighing 24.900 kilograms before the Magistrate and the Magistrate passed an order on 4th August, 1998, which is at Ex.PN/1. The order Ex.PN/1 reads as under: “Present: APP for State. Both Accused in custody with Counsel Sh.H.S. Sandhu & ASI Bant Singh SHO. Heard. Case property bearing seals KS/BS produced by the prosecution. It is seen and found intact. Case property be returned to SHO Bant Singh ASI to keep the same in Malkhana in safe custody. Sd/- JMIC(D) 4.8.98" 21. According to ASI Bant Singh PW-6, who was officiating as an SHO, the case property was not deposited in the judicial malkhana, as there was no sufficient space. On 5th August, 1998, he had given a sample parcel, sample seal and form No.29 to Constable Balwinder Singh. The following portion of examination in chief of ASI Bant Singh PW-6 is required to be noticed: “… … … On 5-8-98, a sample parcel, sample seal and form No.29 were sent to analysis laboratory by hand through Constable Balwinder Singh through office of SSP, Mansa. On 6-8-98, he had deposited all these items in office of FSL and brought back receipt which was produced back to me… … …” 22. From the night of 3rd August, 1998 till 5th August, 1998, the sample parcel and the sample seal remained in possession of ASI Bant Singh PW-6 and the seal affixed on sample drawn at the spot was not handed over to the independent witness. Thus, it cannot be ruled out that the sample was not tampered with. 23. This Court has to examine the evidence meticulously, as recovery of only 25 kilograms of poppy husk has been foisted upon two persons. 25 kilograms of poppy husk is a non-commercial quantity. Both the accused appellants, i.e. Makhan Singh and Jaila Singh have already been sentenced to three years and two years rigorous imprisonment respectively. The accused Makhan Singh had put a specific suggestion to ASI Kulwant Singh PW-2 that he was being falsely implicated due to some property dispute with Gian Singh Ex-Sarpanch of the village. A further suggestion was given that Gian Singh was a relative of ASI Bant Singh. 24. The accused Makhan Singh had put a specific suggestion to ASI Kulwant Singh PW-2 that he was being falsely implicated due to some property dispute with Gian Singh Ex-Sarpanch of the village. A further suggestion was given that Gian Singh was a relative of ASI Bant Singh. 24. Taking into consideration totality of circumstances i.e. (1) the independent witness had not supported the prosecution case, rather appearing in defence, he stated that no proceedings were carried out in his presence; (2) a specific allegation that ASI Bant Singh PW-6 intended to falsely implicate appellant Makhan Singh, as he had a property dispute with his relation Gian Singh Ex-Sarpanch; (3) the fact that the sample was not deposited in the malkhana and was retained by ASI Bant Singh PW-6. Furthermore, the same was not produced before the Illaqua Magistrate along with the case property; and (4) the seal was not handed over to the independent witness; are sufficient to grant benefit of doubt to the appellants as a matter of abundant caution. 25. Hence, both the present appeals are accepted. Conviction and sentence awarded upon both the appellants are hereby set aside and they are acquitted of the charges. ---------0.J.S.K.0-----------