JUDGMENT A.N. Jindal, J.(Oral) - Custody certificate produced by Mr. Amit Rana, DAG, Haryana, is taken on record. 2. The recovery of 400 grams of charas and a .12 bore country made pistol was allegedly effected from the scooter owned by the accused-appellant Kishan Singh (hereinafter referred as the accused). Consequently, he was prosecuted and vide judgment dated 19.05.2003 passed by Special Judge, Faridabad, he was convicted and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 25,000/- under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act). He was further sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 5000/- under Section 25 of the Arms Act, 1959. 3. The prosecution story, in brief, is that on 13.08.1998, when ASI Gian Singh, along with other police officials, was present near the Civil Courts, Palwal, in connection with patrolling, he received a secret information that the accused was indulging in selling of charas and had kept the same in his scooter bearing registration No. DL-5S-D-4762, parked at the backside of the S.D.M., Court, Palwal. It was also informed that if the dickey of the scooter is opened, then the charas could be recovered. Believing the information to be reliable, ASI Gian Singh reached Civil Courts, Palwal and enquired about the accused, who was working as typist, but he was not available at his seat and it was informed that he had left sometime prior to the arrival of the police. Thereafter, the scooter parked near the Court of S.D.M., Palwal, as disclosed by the informant, was searched in the presence of D.S.P., Palwal, from where a country made .12 bore pistol and 400 grams of charas, wrapped in a polythene, were recovered. After separating two samples of 10 grams each, the remaining bulk charas as well as samples were converted into parcels. Thereafter, the bulk charas as well as sample parcels along with pistol, were taken into possession vide memo Ex.PD. Ruqa, Ex.PA/1 was sent to the police station, on the basis of which, formal FIR, Ex.PA was registered. The case was investigated. The accused was arrested and after completion of investigation, a charge report was submitted in the Court. 4. Thereafter, the bulk charas as well as sample parcels along with pistol, were taken into possession vide memo Ex.PD. Ruqa, Ex.PA/1 was sent to the police station, on the basis of which, formal FIR, Ex.PA was registered. The case was investigated. The accused was arrested and after completion of investigation, a charge report was submitted in the Court. 4. On commitment, the accused was charged for the offences under Section 20 of the Act and Section 25 of the Arms Act, to which he pleaded not guilty and claimed trial. 5-6. In order to substantiate the charges, the prosecution examined Charan Singh, Sub Inspector (PW-1), Constable Mahabir (PW-2), Radhey Shyam, Sub Inspector (PW-3), Sadhu Ram, Inspector (PW-4), Hukam Singh, DSP (PW-5), Kulwant Kaur (PW-6), Amarjeet Singh, ASI (PW-7), Sri Chand, ASI (PW-8) and Gian Singh, ASI (retired) (PW-9). After tendering the report of the Chemical 6. Examiner, Ex.PE, the prosecution closed its evidence. When examined under Section 313 Criminal Procedure Code, the accused denied all the incriminating circumstances appearing against him and pleaded his false implication. He further explained that the case is the result of political rivalry with the local MLA Karan Dalal, village Sarpanch Jagan Singh, Sant Raj and Bijan Singh, all residents of Badhraon. In defence, he examined R.R. Sagar, Advocate, Charan Singh and Gian Singh. He himself also appeared in the witness box and tendered into evidence documents Mark A, Mark DB to DG and Ex.DA to Ex.DF. 7. The trial resulted into conviction. 8. The impugned judgment has been assailed by learned counsel for the accused on various grounds. He has urged that the link evidence is missing in this case and the defence evidence has not been properly discussed. He has further urged that there is no compliance of the provisions, as envisaged under Sections 42, 52, 55 and 57 of the Act. There are serious discrepancies in the statements of the witnesses, which also create doubt over the manner, in which the recovery was effected. The accused cannot be said to be in conscious possession of the alleged contraband, purported to have been recovered from his scooter. 9. Having pondered over the contentions, the same find some substance. There are glaring contradictions in the prosecution version. The accused cannot be said to be in conscious possession of the alleged contraband, purported to have been recovered from his scooter. 9. Having pondered over the contentions, the same find some substance. There are glaring contradictions in the prosecution version. The occurrence in this case is stated to have taken place at about 2.30 P.M. on 13.08.1998 and ruqa was recorded at 4.00 P.M. on the same day, whereas FIR, Ex.PA, reveals that it was recorded at 11.00 P.M. on that day. The recovery was effected from the place at a distance of = K.M. from the police station. As revealed from the FIR, Ex.PA, the ruqa was sent at 4.00 P.M., but it is not known as to why there is delay of 7 hours in recording the FIR. Though the case is based on secret information, yet the Investigating Officer did not make compliance of Section 42 of the Act before proceeding to the place of occurrence. ASI Sri Chand (PW-8) has stated that he received the secret information at 3.00 P.M. and he waited for the D.S.P. for 20 minutes i.e. up to 3.20 P.M. and when he arrived at the place of occurrence, thereafter, he started for apprehending the accused. But, he had not assigned any reasons as to why he did not reduce the secret information into writing and informed about the same to the higher authorities. Since no justification has been shown by the Investigating officer for not reducing the secret information into writing and sending the same to the higher authorities, therefore, the recovery in the case stands vitiated. 10. Though the case of the prosecution is that the accused was not found in his cabin, yet with a view to search the scooter, the prosecution did not join any Judicial or Executive Magistrate at the time of effecting the alleged recovery of the contraband and a pistol from the scooter. The only independent witness namely Bodan, joined by the prosecution, was given up as being won over. If it is assumed that the accused had the clue of being raided by the police party, then why he would have left his scooter in the Court Complex and himself run away. The only independent witness namely Bodan, joined by the prosecution, was given up as being won over. If it is assumed that the accused had the clue of being raided by the police party, then why he would have left his scooter in the Court Complex and himself run away. The scooter must be lying parked since the time he arrived in the Court Complex and remained parked till the police searched the same, therefore, possibility of placing such contraband or the pistol in the dickey by some third person, cannot be ruled out. The police party did not wait for the arrest of the accused to search the dickey of the scooter in his presence. The Investigating Officer appears to be concealing the position of the scooter at the time when it was searched. He states that he does not know, if the dickey was properly locked or was semi-locked, as he had not seen the dickey. In this regard, it may be observed that if he had not seen the dickey, then how he could be a witness to the recovery of the contraband and the pistol. His vague denial that the dickey was semi-locked, indicates that somebody must have tampered with the lock, so as to implicate the accused in the case. Neither dickey was opened in the presence of the accused nor he supplied the key of the dickey. It is also not explained as to how the Investigating Officer came in possession of the key. Thus, it is difficult to hold that the accused was in conscious possession of the contraband and the pistol. 11. There are serious contradictions in the statements of Gian Singh, ASI (PW-9) and Hukam Singh, DSP (PW-5). Hukam Singh, DSP (PW-5) states that he had received the information from ASI Gian Singh at 2.15 P.M. that a scooter belonging to the accused was lying parked behind the Court of SDM, Palwal. Thereafter, he reached the place, where the scooter was lying parked and directed ASI Gian Singh to search the same, whereas ASI Gian Singh (PW-9) has stated that he had received secret information only at 3.30 P.M. and thereafter, Hukam Singh, DSP arrived there at 4.15 P.M. Firstly, they had gone to the cabin of the accused, but he was not found there and then, they came at the place, where the scooter was lying parked. Thus, it appears that Hukam Singh, DSP, had prior information about the alleged contraband than ASI Gian Singh. It is not explained as to why the DSP did not initiate to effect recovery from the accused. ASI Gian Singh (PW-9) states that the scooter was of blue colour, whereas ASI Sri Chand (PW-8) has stated that it was of white colour. 12. The link evidence is also missing in the case. ASI Amarjit Singh (PW-7), having been posted as MHC at the police station had received the case property and handed over the same to Constable Yashbir Singh. But, in his affidavit Ex.PG, he did not specifically refer to the particulars of the seals over the sample, which was received by him in the malkhana Similarly, he did not disclose about the seals at the time of handing over the same to Constable Yashbir Singh on 28.09.1998. Had there been seals on the samples on the day he had received the same in the malkhana, then he would have mentioned about the seals over the same in his affidavit. As a matter of fact, this statement of ASI Amarjit Singh (PW-7) is not correct to the extent that he had handed over the sample to Constable Yashbir Singh. In any case, the prosecution has not examined Yashbir Singh, to complete the link evidence that he had taken the sample parcel to the Chemical Examiner, rather in the report, Ex.PE, reveals that Constable Mahabir Singh had taken the sample to the office of the Forensic Science Laboratory and not Yashbir Singh. Assuming for the sake of arguments that the sample was handed over to Mahabir Singh and he had taken the sample to the Forensic Science Laboratory, that also does not serve the purpose. According to ASI Amarjit Singh (PW-7), Yashbir Singh had returned the receipt on the same evening i.e. on 28.08.1998 after handing over the sample in the office of the Chemical Examiner, but the report reveals that the sample was received in the Laboratory only on 31.08.1998. To the contrary, the affidavit (Ex.PB) as tendered by Constable Mahabir Singh, reveals that the case property was taken by him on 28.09.1998 and he after handing over the same in the office of the Chemical Examiner, had handed over the receipt to ASI Amarjit Singh on the same day. To the contrary, the affidavit (Ex.PB) as tendered by Constable Mahabir Singh, reveals that the case property was taken by him on 28.09.1998 and he after handing over the same in the office of the Chemical Examiner, had handed over the receipt to ASI Amarjit Singh on the same day. But, this affidavit is also contradictory to the report of Chemical Examiner that the sample was received in Laboratory on 31.08.1998. The report, Ex.PE, discloses that the Constable had obtained the forwarding memo and the sample on 28.08.1998, but he deposited the same on 31.08.1998. It is not clear as to where the Constable Mahabir Singh had kept the sample with effect from 28.08.1998 to 31.08.1998. Furthermore, there is great delay in depositing the sample in the Laboratory, which also stands unexplained. The recovery was effected on 13.08.1998; the forwarding letter was got issued from the office of the Superintendent of Police on 31.08.1998 and it was deposited in the Laboratory on 28.08.1998. As such, this delay in the absence of any explanation, is fatal to the case of the prosecution. 13. The report of Chemical Examiner dated 18.02.1999 (Ex.PE) is cryptic in nature. It has been observed time and again that when the link evidence is not complete, then possibility of tampering of the sample cannot be ruled out. Similar observations were made by this Court in case Suresh Kumar v. State of Haryana, 2010 (3) RCR (Crl.) 786. 14. The defence plea, set up by the accused, also appears to be quite plausible. In order to prove that the present case is the result of political rivalry, he has examined Raja Ram Sagar, Advocate (DW-1), Charan Singh (DW-2), Gian Singh (DW-3) and he himself appeared in the witness box as DW-4. The accused has given minute details regarding the plea set up by him. He has stated that he is a Lamberdar of village Badram and also remained as unopposed Member Panchayat for five years. He is Gadria by caste. At the time of occurrence, Jagan Singh was the Sarpanch of their village and he belonged to a Jat community. The case was registered against him at the instance of said Jagan Singh, Sarpanch in collusion with the local police under the political pressure. He is Gadria by caste. At the time of occurrence, Jagan Singh was the Sarpanch of their village and he belonged to a Jat community. The case was registered against him at the instance of said Jagan Singh, Sarpanch in collusion with the local police under the political pressure. He has further stated that Sant Raj and Bijan Singh are also party men of Jagan Singh and under the influence of Karan Singh Dalal, Ex-Minister, they targeted him in the case falsely. Raja Ram Sagar, Advocate (DW-1) has stated that on 13.08.1998 at about 3.00 P.M., three police officials had taken accused-Kishan Singh along with his scooter. They had also got opened the scooter from the accused, the dickey of which was already unlocked. Charan Singh (DW-2) and Gian Singh (DW-3) have also supported this version. Even if the defence plea is not accepted, the prosecution has failed to prove the recovery of the contraband as well as the pistol from the accused beyond reasonable doubt. 15. The trial Court appears to have not properly appreciated the evidence in the right perspective. 16. Resultantly, while extending the benefit of doubt to the accused, the present appeal is accepted; the impugned judgment is set aside and the accused is acquitted of the charges framed against him. He be set at liberty forthwith. .