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2012 DIGILAW 733 (PNJ)

Parmod Kumar v. State of Haryana

2012-05-21

NARESH KUMAR SANGHI

body2012
JUDGMENT Mr. Naresh Kumar Sanghi, J.: - The present appeal has been filed challenging the judgment of conviction dated 07.10.2005 whereby the appellant was held guilty for the offence punishable under Section 15 of the Narcotics Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as “the NDPS Act”) for having in his conscious possession 175 kilograms of poppy straw and the order of sentence dated 08.10.2005 passed by learned Additional Sessions Judge, Sirsa, whereby he was awarded the rigorous imprisonment for a period of ten years and to pay fine of Rs.1,00,000/-; in default of payment of fine, to further undergo imprisonment for a period of two years. 2. Brief facts of the case are that on 28.07.2003 at about 2.00 P.M., ASI Ram Kumar (PW5) along with Head Constable Siri Niwas was present on the T point of bus stop of Sukhera Khera, where HC Sadhu Singh (PW4) and Constable Ashok Kumar, who were available there in a Government jeep driven by Constable Zile Singh, met them and they were also joined in the police party. Thereafter the police party started checking of the vehicles. In the meantime, a Maruti car of white colour wherein two persons were sitting on the front seats, came from the side of village Sangaria, which was signaled to stop by ASI Ram Kumar. However, the car was stopped at a little distance and immediately, thereafter, one person alighted from the car and started running away. The police personnel tried to apprehend him but failed. However, he was identified to be Seera son of Boota Singh, Caste Jat Sikh, resident of Desu Jodha, as he was previously known to HC Sadhu Singh (PW4). The driver of car was nabbed at the spot by the police party and he disclosed his name to be Parmod Kumar son of Hans Raj, resident of Mandi Dabwali. On search of the car, five plastic bags were found lying in the middle and rear portion of the car. Suspecting the presence of some narcotic in the bags, notice under Section 50 of the NDPS Act was served upon to the appellant to know his willingness to be searched in the presence of a Gazetted Officer or a Magistrate, but the appellant expressed his full confidence in the Investigating Officer. Suspecting the presence of some narcotic in the bags, notice under Section 50 of the NDPS Act was served upon to the appellant to know his willingness to be searched in the presence of a Gazetted Officer or a Magistrate, but the appellant expressed his full confidence in the Investigating Officer. Thereafter, all the five plastic bag were brought down from the car and the contents thereof were checked which were found to be of poppy husk. Two samples weighing 100 grams were taken from each plastic bags. On weighment, each plastic bag was found to contain 34 kilograms and 800 grams of the poppy husk. The mouth of all the plastic bags were tied. The bags and the samples were smeared with the seal bearing monogram ‘RK’ and taken into police possession vide separate memos which were attested by the witnesses. The car was also taken into police possession. The seal after use, and retaining the sample seal, was handed over to HC Siri Niwas. 3. A memo was prepared at the spot and sent to the police station for registration of the case, on the basis of which, FIR No. 141 dated 28.07.2003, under Section 15 of the NDPS Act was registered at Police Station Sadar, Dabwali. The investigation was conducted. During the course of investigation, Seera alias Jagsir, who had allegedly run away after alighting from the car was joined in the investigation. After completion of the investigation and other formalities, a report under Section 173, Cr.P.C. was submitted. 4. Both the accused were charge-sheeted for commission of the offence punishable under Section 15 of the NDPS Act. 5. In order to substantiate the charge against the accused, the prosecution examined the following witnesses:- PW1 ASI Ranjit Singh- On 28.07.2003, he was posted as ASI in Police Station Sadar, Dabwali. On receipt of memo Ex.PA from ASI Ram Kumar, he recorded the formal FIR, Ex.PA/1. PW2 HC Ram Kumar- He tendered his affidavit Ex.PB in evidence. He was performing the duty as MHC at Police Station Sadar, Dabwali. The case property was deposited with him and he on 30.07.2003, entrusted samples five in number to Constable Dalip Singh for delivering the same to the Forensic Science Laboratory, Madhuban. PW3 ASI Maan Singh- On 28.07.2003, he was posted as Station House Officer, Police Station Sadar, Dabwali. He was performing the duty as MHC at Police Station Sadar, Dabwali. The case property was deposited with him and he on 30.07.2003, entrusted samples five in number to Constable Dalip Singh for delivering the same to the Forensic Science Laboratory, Madhuban. PW3 ASI Maan Singh- On 28.07.2003, he was posted as Station House Officer, Police Station Sadar, Dabwali. On that day, ASI Ram Kumar produced before him accused Parmod Kumar, witnesses and entire case property. He verified the facts from appellant Parmod Kumar, witnesses and, thereafter, put his own seal having monogram ‘MS’ on each of the sample parcels etc. He directed ASI Ram Kumar to deposit the case property with the MHC. Report Ex.PC prepared under Section 57 of the NDPS Act was endorsed and, thereafter, ordered to be sent to Higher Police Officers. He identified contraband bags Exs.P1 to P-5 containing the residue contraband in the court. He also identified car No. DL-ICB-5417 parked outside the court on that day. PW4 HC Sadhu Ram- On 28.07.2003, he along with some other police personnel was present at the turning near bus stand of village Sukhera Khera. He deposed about the stopping of the Maruti car, recovery of the contraband from the said car, running away of Jagsir Singh after alighting from the car and arrest of appellant Parmod Kumar, in addition to the other formalities observed at the spot. PW5 ASI Ram Kumar- He deposed about the investigation conducted by him. PW6 Constable Dalip Singh- He tendered in evidence affidavit Ex.PF wherein he, inter-alia, deposed that on 28.07.2003 he was posted on general duty at Police Station Sadar, Dabwali. On 30.07.2003, MHC Ram Kumar handed over to him the five samples of the contraband which were smeared with the seals ‘RK’-‘MS’ for depositing the same with the Forensic Science Laboratory, Madhuban. He deposited the samples on 31.07.2003 and after return to police station, deposited the receipt with MHC. 6. Learned Public Prosecutor gave up PW Siri Niwas being unnecessary, and closed the prosecution evidence after tendering into evidence the Forensic Science Laboratory’s report, Ex.PH. 7. He deposited the samples on 31.07.2003 and after return to police station, deposited the receipt with MHC. 6. Learned Public Prosecutor gave up PW Siri Niwas being unnecessary, and closed the prosecution evidence after tendering into evidence the Forensic Science Laboratory’s report, Ex.PH. 7. The statement of both the accused, including the appellant, were recorded in terms of Section 313, Cr.P.C., in which the appellant Parmod Kumar denied the allegations in toto and stated that he was falsely implicated in the case at the instance of one Leela Dhar of village Sherhgarh, who was a worker of Indian National Lok Dal Party. Seera @Jagsir Singh co-accused took the stand that he was innocent and nothing was recovered from him. DSP Chander Singh had forcibly brought his mother and other family members in the police station City, Dabwali, and demanded a sum of Rs.70,000/- for releasing them. A sum of Rs.20,000/- was paid to DSP Chander Singh through one Baldev Singh and Smt.Surjit Kaur, residents of vlillage Paniwalla Morika. The said news was published in the newspaper. SI Surinder Kumar was posted as Station House Officer, City Dabwali. The complaint was filed by the maternal uncle of Seera @ Jagsir Singh against SI Surinder Kumar for having caused injuries to him which was pending adjudication in the court of JMIC, Dabwali. A frivolous case was registered against Seera @ Jagsir Singh and his family members for the offences punishable under Sections 148, 323, 452, 506, 427, 341 and 149, IPC at Police Station City, Dabwali, in order to put them under pressure for withdrawal of the complaint. Seera @ Jagsir Singh further stated that he was falsely implicated in the case in hand at the instance of DSP Chander Singh, SI Ram Singh and SI Surinder Kumar. His mother also moved application before the higher authorities in that regard but no action was taken. He further stated that he was falsely implicated in the present case since he had no concern with the car and the alleged contraband. 8. Seera @ Jagsir Singh tendered into evidence applications Exs. DA, DB, DC, DD and DE moved by Smt.Chinder Kaur on different dates before higher authorities. He also tendered into evidence a copy of the complaint Ex.DF and copy of list of witnesses Ex.DG, certified copy of MLR of Harcharan Singh Ex.DH and certified copy of summoning order dated 01.08.2000 Ex.DI. 9. DA, DB, DC, DD and DE moved by Smt.Chinder Kaur on different dates before higher authorities. He also tendered into evidence a copy of the complaint Ex.DF and copy of list of witnesses Ex.DG, certified copy of MLR of Harcharan Singh Ex.DH and certified copy of summoning order dated 01.08.2000 Ex.DI. 9. In defence, Balvinder Singh was examined as DW1 who, inter-alia, deposed that Seera @ Jagsir Singh accused was son of Smt. Chinder Kaur. On 15.06.2001, he received a telephone call from Smt. Chinder Kaur to bring money as she and her son Jagsir Slingh were illegally apprehended by DSP Chander Singh and he was demanding Rs. 70,000/-. He further deposed about handing over of Rs.50,000/- to his sister for further handing over the same to DSP Chander Singh. Smt. Chinder Kaur arranged Rs.20,000/- herself. Rs.50,000/- were handed over to DSP Chander Singh and Rs.20,000/- to SI Ram Singh and, thereafter, Smt. Chinder Kaur and Seera @ Jagsir Singh were set at liberty. The conversation between Smt. Chinder Kaur and DSP Chander Singh was recorded through a tape-recorder. On the basis of said recording, an inquiry was conducted and SI Ram Singh was suspended. The news was also published in the newspaper. The clip of one of the news items was Mark A. Written complaint in that regard was Ex.DJ, affidavit was Ex.DK and the certified copy of the application was Ex.DL. During the course of inquiry, Balwinder Singh was kidnapped by DSP Chander Singh and was pressurized to withdraw the complaint. Later the police forged the document and filed the complaint under Section 182, Cr.P.C. against Balwinder Singh. He produced cassette Mark B containing conversation of Smt. Chinder Kaur and DSP Chander Singh. 10. Harminder Singh was examined as DW2 who, inter-alia, deposed that he knew appellant Parmod Kumar since he was a supporter of congress party and nothing was recovered from his possession. Parmod Kumar was falsely implicated in the present case at the instance of one Leela Dhar with whom Parmod Kumar had party faction. Said Leela Dhar was an active worker of the Indian National Lok Dal party. During the cross examination by Public Prosecutor, Harminder Singh disclosed that Leela Dhar was a real brother of Smt. Vidya Beniwal, the then MLA belonging to Indian National Lok Dal party. 11. Said Leela Dhar was an active worker of the Indian National Lok Dal party. During the cross examination by Public Prosecutor, Harminder Singh disclosed that Leela Dhar was a real brother of Smt. Vidya Beniwal, the then MLA belonging to Indian National Lok Dal party. 11. After the evidence of both the sides was over, the learned trial court heard the arguments, acquitted accused Seera @ Jagsir Singh but convicted and sentenced the appellant Parmod Kumar in the manner, as has been stated in the initial part of this judgment. 12. Learned counsel for the appellant argued that in spite of availability, no independent witness was joined to witness the recovery allegedly effected from the appellant. He further submitted that the link evidence in the case was missing. He also argued that the seal after use was handed over to Head Constable Siri Niwas but he had not been examined by the prosecution which has caused serious prejudice to the appellant. He also argued that there was no explanation regarding the delay of four days in sending the samples to the Forensic Science Laboratory, Madhuban. An arguments was also raised that there were serious contradictions in the statements of PW4 and PW5. Learned counsel also argued that the appellant was not a registered owner of the car alleged to have been apprehended by the police, therefore, the prosecution had miserably failed to connect the appellant with the alleged car and the contraband so recovered. The submission was also made that the major portion of the prosecution story was disbelieved by the trial court itself when Seera @ Jagsir Singh, the co-accused of the appellant, was acquitted by the court below. It was also submitted that there was no compliance of Section 50 of the NDPS Act which was mandatory in nature. On the strength of above submissions, it was submitted that the prosecution had failed to establish its case against the appellant as well. To buttress his submissions, the learned counsel has placed reliance on: 1. U.O.I. vs. Bal Mukund & Others, 2009(12) SCC 161 2. Randhir Singh vs. State of Haryana, [2010(1) Law Herald (P&H) 688] : 2010(2) R.C.R (Criminal) 388 3. Amar Singh @ Kabu vs. State of Haryana, [2008(2) Law Herald (P&H) 1584] : 2008(4)R.C.R (Criminal) 440 4. Bhola Singh vs. State of Punjab, [2005(1) Law Herald (P&H) 354] : 2005(2) R.C.R.(Criminal) 520 5. Randhir Singh vs. State of Haryana, [2010(1) Law Herald (P&H) 688] : 2010(2) R.C.R (Criminal) 388 3. Amar Singh @ Kabu vs. State of Haryana, [2008(2) Law Herald (P&H) 1584] : 2008(4)R.C.R (Criminal) 440 4. Bhola Singh vs. State of Punjab, [2005(1) Law Herald (P&H) 354] : 2005(2) R.C.R.(Criminal) 520 5. Lachhman Dass vs. State of Punjab 2010(1)R.C.R. (Criminal) 666 6. Gurbax Singh vs.State of Haryana 2001(1)RCR(Criminal) 702 7. State of Punjab vs. Jaswant Singh 2002(2) CLJ (Criminal) 201 8. State of Punjab vs. Jalaur Singh, 2002(3) RCR(Criminal) 478 9. Ganga Dhar vs. State of Haryana, [2011(2) Law Herald (P&H) 1156] : 2011(1) RCR(Criminal) 624 10. Surinder Singh vs. State of Punjab, [2011(1) Law Herald (P&H) 208] : 2010(3) RCR (Criminal) 835 11. State of Punjab vs. Hari Singh & Ors., [2008(2) Law Herald (P&H) 1285 (SC)] : 2009(2) RCR (Criminal) 143 12. Avtar Singh vs. State of Punjab 2002(4) RCR(Criminal) 180 13. State of Punjab vs. Balkar Singh, 2004(3) SCC 582 13. On the other hand, learned counsel for the State had argued that the prosecution had examined as many as six witnesses to prove its case against the appellant and all the witnesses, so examined, have fully supported the prosecution version. Their deposition was cogent, convincing, trustworthy and there is nothing material on record to disbelieve or discard the same. It was also argued that from the deposition of the prosecution witnesses, it was well established on record that the appellant was apprehended by the police while he was found in conscious possession of five plastic bags containing poppy straw without any permit or licence, therefore, the learned trial court had rightly convicted and sentenced the appellant. It was also submitted that the arguments raised by the learned counsel for the appellant are not going to the root of the case, therefore, it was essential for the appellant to show that he was materially prejudiced from the short-comings pointed out by him in the prosecution case. 14. I have heard learned counsel for the parties and with their able assistance gone through the material available on record. Non-compliance of Section 50 of the NDPS Act 15. Learned counsel for the appellant argued that there was non-compliance of Section 50 of the NDPS Act which was mandatory in nature. 14. I have heard learned counsel for the parties and with their able assistance gone through the material available on record. Non-compliance of Section 50 of the NDPS Act 15. Learned counsel for the appellant argued that there was non-compliance of Section 50 of the NDPS Act which was mandatory in nature. Learned counsel for the State submitted that five bags containing the poppy husk were recovered from the car and not from the person of the appellant, therefore, there was no requirement to serve the notice in terms of Section 50 of the NDPS Act upon the appellant. He further submitted that in spite of the fact that the contraband so recovered from the car and not from the personal search of the accused, the investigating officer had served a notice Ex.PD and the option of the appellant was sought as to whether he wanted himself to be searched in the presence of a Gazetted Officer or a Magistrate, therefore, there was compliance of Section 50 of the NDPS Act. 16. There is force in the arguments raised by learned counsel for the State. It is now settled that compliance of Section 50 of the NDPS Act is mandatory only when the contraband is recovered from the personal search of the appellant. In the case in hand, the contraband was recovered from the car which was being allegedly driven by the appellant, therefore, there was no requirement on the part of the investigating officer to comply with the mandate of Section 50 of the NDPS Act. Even otherwise, a notice Ex.PD was issued to him as a matter of caution and the appellant gave reply Ex.PD/1, therefore, no benefit can be extended to the appellant on this score. Non-joining of independent witness 17. According to the prosecution case, the police party had started from the police station at about 10.00 a.m on 28.07.2003 after recording an entry in the Daily Diary Register for patrolling. At about 12.00 noon, the police party reached at the bus stop of Village Sukhera Khera, where Head Constable Sadhu Singh and other police officials were already standing. After about half an hour, a maruti car arrived there and thereafter, the appellant was apprehended and alleged recovery was effected. Investigating Officer ASI Ram Kumar (PW-5) has specifically admitted in his crossexamination that he did not try to join any independent witness. After about half an hour, a maruti car arrived there and thereafter, the appellant was apprehended and alleged recovery was effected. Investigating Officer ASI Ram Kumar (PW-5) has specifically admitted in his crossexamination that he did not try to join any independent witness. He was very categoric in his cross-examination that during 4 ½ hours of the investigation at the spot, vehicles were plying on the road though, no pedestrian had come there. Perusal of the statement of Head Constable Sadhu Ram (PW4) reveals that Narma crop was shown in the fields nearby the place of recovery. It means that the farmers were available in the fields to guard their crops. Since the recovery was effected in the noon time, the crop was present in the fields nearby the place of recovery then it can very well be presumed that the farmers were present in their respective fields to protect their respective crops. The admission on the part of the Investigating Officer to the effect that he did not try to join any independent witness would clinch the matter. It is apposite to mention here that the Investigating Officer ASI Ram Kumar (PW5) had very categorically admitted that the vehicles were passing from the road. It is now settled that where a statute confers such drastic powers and seeks to deprive a citizen of his liberty for not less than ten years besides provides stringent provisions for grant of bail, scrupulous compliance of the statutory provisions must be insisted upon. It is also settled by now that where the charge is grave then the proof should also be stricter. The non-joining of any independent witness in the present case throws serious doubts on the veracity of the prosecution case. Missing links and its effect on the prosecution case 18. It was argued that firstly, the prosecution had miserably failed to prove the ownership of the car; secondly, it also failed to bring on record the source of contraband as to how it came into possession of the appellant and thirdly, the prosecution could not establish that as to whom the seal after its use was handed over. These three missing links in the prosecution case would seriously affect the veracity of the prosecution version. 19. These three missing links in the prosecution case would seriously affect the veracity of the prosecution version. 19. On the other hand, learned counsel for the State submitted that merely on this ground that the investigating agency could not trace out the registered owner of the car and the source of the contraband would not entitle the appellant to earn acquittal. It was also submitted that the Investigating Officer had stated that seal after use was handed over to Head Constable Ram Niwas. 20. No doubt, there are lapses in the investigation with regard to establishing the ownership of the car from which the alleged contraband was recovered as well as the sources fromwhere the appellant procured the alleged contraband but these missing links in the prosecution case by itself might not be sufficient for the appellant to seek acquittal but if the cumulative effect of the lapses and the short-comings in the investigation is adjudged, then this issue of missing links can be accounted in favour of the appellant keeping in view the peculiar facts and circumstances of this particular case. Delay of four days in sending the samples to the Forsenic Science Laboratory, Madhuban 21. Though, the learned counsel raised this issue that there was a delay of four days in sending the samples to the Forensic Science Laboratory, Madhuban, but could not substantiate as to how the appellant was prejudiced by sending the samples to the Forensic Science Laboratory, Madhuban, after four days. When confronted with the report, Ex.PH, prepared by the Assistant Director of General, Forensic Science Laboratory, Madhuban, Haryana, wherein it was specifically mentioned that five sealed parcels with seals intact and tallied with the specimen seal as per forwarding authority’s letter were received in the Laboratory, the learned counsel could not explain as to how the appellant could seek benefit from such delay, if any. Therefore, no benefit on this ground can be extended to the appellant. Contradictions in the statements of PW-4 and PW-5 22. Learned counsel for the appellant though pointed out few discrepancies in the statements of official witnesses, however, the same were minor in nature and they do not go to the root of the case. Therefore, no benefit on this ground can be extended to the appellant. Contradictions in the statements of PW-4 and PW-5 22. Learned counsel for the appellant though pointed out few discrepancies in the statements of official witnesses, however, the same were minor in nature and they do not go to the root of the case. In fact, such like variations/contradictions are bound to occur in the statements of the witnesses particularly when the witness appear before the court after a long lapse of time, i.e after more than 15 months in this case. Effect of acquittal of the co-accused of the appellant 23. Learned counsel for the appellant had emphasized that substratum of the prosecution case was not believed when the learned trial court acquitted Seera @ Jagsir Singh, the co-accused of the appellant, therefore, the same benefit should have been extended to the appellant as well. No doubt, it is the duty of the court to analysis the evidence and decide the case while keeping in view the basic principle that grain has to be separated from the chaff. However, if the grain and the chaff are so intermingled and it is not possible to separate the two components then the benefit has to be extended to the accused. In the present case, the basic case of the prosecution was that there were two persons in the car, namely, Seera @ Jagsir Singh and Parmod Kumar. When the car was signaled to stop by the police party, then Seera @ Jagsir Singh alighted from the car and ran away. The said version of the prosecution had not been believed by the court below, therefore, he was acquitted. This circumstance by itself throws serious doubts on the veracity of the prosecution case. 24. In Union of India’s case (supra), the Hon’ble Apex Court held that where a statute confers such drastic powers and seeks to deprive a citizen of its liberty for not less than ten years, and making stringent provision for grant of bail, scrupulous compliance of the statutory provisions must be insisted upon. 25. In Randhir Singh’s case (supra) this Court held that Narcotic Control Bureau issued standing instructions No.1/88 dated 15.03.1988-Clause 1.13 of said instructions states that sample must be dispatched to the laboratory within 72 hours of seizure. However, in instant case, samples were sent after 5 days. Prosecution has violated the instructions issued by Bureau. 25. In Randhir Singh’s case (supra) this Court held that Narcotic Control Bureau issued standing instructions No.1/88 dated 15.03.1988-Clause 1.13 of said instructions states that sample must be dispatched to the laboratory within 72 hours of seizure. However, in instant case, samples were sent after 5 days. Prosecution has violated the instructions issued by Bureau. Moreover, no explanation for late sending the samples. Held, accused deserves the benefit of doubt. 26. In Amar Singh @ Kabu’s case (supra) this Court held that it was imperative to join an independent witness to vouchsafe the fair investigation. 27. In Bhola Singh’s case (supra) this Court held that where the seal remained with the police after use and the CFSL form was neither prepared on the spot nor deposited in the Malkhana, such circumstance would be fatal to the prosecution case. 28. In Lachhman Dass’s case (supra) this Court held that the prosecution failed to apportion any reason for non-joining of an independent witness, the prosecution case becomes doubtful. 29. In Gurbax Singh’s case (supra) Hon’ble Apex Court held that the parcel sealed by investigating officer but not sealed by officer in charge of Police Station as required under Section 55. Even no evidence was led to the effect that Chemical examiner received the sample in proper intact seals. It creates a doubt, whether the same sample was sent to Chemical Examiner. 30. In State of Punjab vs. Jaswant Singh’s case (supra) a Division Bench of this Court held that recovery of contraband was effected at Grand Trunk Road and in spite of availability, no independent witness was joined. In such a circumstance, the judgment of acquittal passed by learned trial court was upheld. 31. In State of Punjab vs. Jalaur Singh’s case (supra), a Division Bench of this Court held that poppy husk was recovered from the accused at a thoroughfare and in spite of availability, no independent witness was joined. It was held that when heavy punishment is provided court is to see that prosecution evidence inspires confidence. 32. In Ganga Dhar’s case (supra) this Court held that seal after use was not given to an independent witness and the same was handed over to Assistant Sub Inspector of police who was not even examined, benefit of doubt extended to the appellant. 33. 32. In Ganga Dhar’s case (supra) this Court held that seal after use was not given to an independent witness and the same was handed over to Assistant Sub Inspector of police who was not even examined, benefit of doubt extended to the appellant. 33. In Surinder Singh’s case (supra) this Court accepted the appeal on the grounds: (i) seal after use not handed over to independent witness; (ii) Form No.29 not prepared at the spot; (iii) delay of 09 days in sending the sample to Laboratory; (iv) samples produced before Illaqua Magistrate remained unsigned by the Magistrate; and (v) case property when produced then it was found that two bags containing the contraband had no seal. 34. In State of Punjab vs. Hari Singh’s case (supra) Hon’ble Apex Court held that evidence on record showed that accused was in conscious possession, but no question put to accused during his examination under Section 313 Cr.P.C, that he was in conscious possession of contraband and therefore, the appeal filed by State of Punjab was dismissed. 35. In Avtar Singh’s case (supra) the Hon’ble Apex Court held that two accused were sitting on the bags and one accused was driving the truck. The prosecution could not prove that accused had custody and control over the bags, therefore, his sentence was set aside. 36. In State of Punjab vs. Balkar Singh’s case (supra) the Hon’ble Apex Court held that accused belonging to different villages and the investigating agency did not probe as to how 100 bags of poppy husk were transported to the place of incident. Even no evidence was adduced to show ownership of the poppy husk. In such circumstances, the acquittal of the accused was upheld. 37. Case law cited by learned counsel for the appellant is a guiding factor for this court while deciding the case in hand, but with all fairness it can be concluded that every criminal case has its own facts and can be used in another case only when some law point has been settled. 38. Keeping in view the totality of the circumstances of the case in hand and the principle that greater the charge, stricter is the proof, the benefit of doubt can be extended to the appellant and as such, the appeal is allowed and the appellant is acquitted of the charge levelled against him. 38. Keeping in view the totality of the circumstances of the case in hand and the principle that greater the charge, stricter is the proof, the benefit of doubt can be extended to the appellant and as such, the appeal is allowed and the appellant is acquitted of the charge levelled against him. He be set at liberty at once if not required to be in custody in any other case. ---------0.B.S.0------------