Judgment : PW1 Ganga Singh, Station Officer, police station, Someshwar (District Almora) lodged an FIR against the accused-appellant on 29.05.1999, at 09:05 P.M., at police station, Bageshwar, which was registered as case crime no. 186 of 1999, under Section 21 / 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act). The incident allegedly took place on 29.05.1999 itself, at 06:30 P.M. The distance between the place of incident and the police station concerned was 1.5 kms. and hence there appeared to be no delay in lodging the FIR. After the investigation of the case, a charge-sheet was submitted against the accused for the offence punishable under Section 21/22 of the Act. When the trial began before the Special Court, and prosecution opened it’s case, charge for the selfsame offence was framed against the accused, to which he pleaded not guilty and claimed trial. 2) PW1 S.O. Ganga Singh, PW2 S.I. Mahesh Lakhera, PW3 S.I. Harendra Singh and PW5 S.S.I. Thakur Singh Adhikari were examined on behalf of the prosecution. PW2 was again examined as PW4. Incriminating evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he said that he was falsely implicated in the case. No evidence was adduced in defence. After considering the evidence on record, learned trial court, i.e. Special Sessions Judge, Bageshwar, vide judgment and order dated 18.11.2002, convicted accused Sher Singh under Section 20 (b) read with Section 22 of the Narcotics Drugs and Psychotropic Substances Act, 1985 and sentenced him to undergo rigorous imprisonment for 10 years alongwith a fine of Rs. 1,00,000/-. Aggrieved against the convection and sentence, present criminal appeal was preferred by the appellant. 3) Prosecution led the evidence through PW1, who, in his examination-in-chief, supported prosecution story and also proved recovery memo (Ext. Ka-1), as also the contraband (Mat. Ext. 1). 4) PW1 stated that on 29.05.1999, he was posted as S.S.I., Bageshwar. He went to Bageshwar in connection with law and order situation. S.I. Harendra Singh, Constable Virendra and Constable Prakash Chand accompanied him. When the police personnel went to Kanda road and reached near Bhagirathi Chandika Devi Trisection, a person was seen coming from the opposite side. When he was asked to stop, he started walking with brisk strides. He went to Bageshwar in connection with law and order situation. S.I. Harendra Singh, Constable Virendra and Constable Prakash Chand accompanied him. When the police personnel went to Kanda road and reached near Bhagirathi Chandika Devi Trisection, a person was seen coming from the opposite side. When he was asked to stop, he started walking with brisk strides. He was chased and was apprehended near the trisection at 06:30 P.M. He disclosed his name as Sher Singh. He apologized and stated that he was in possession of cannabis. PW1 gave the accused option of search by a Magistrate or a Gazetted Officer. Accused declined the offer and stated that PW1 or the police personnel can take his search. When PW1 was searched, charas weighing approximately 500 gms. was found from a polythene bag, which the accused was holding in his hands. By the smell of the contraband the same appeared to be charas. The contraband was sealed. Specimen seal was prepared. Accused was arrested. Recovery memo was prepared. No public witness was willing to be a witness of such incident. A copy of the recovery memo was given to the accused, who appended his signatures over the recovery memo (Ext. Ka-1). PW1 also verified his signatures on Ext. Ka-1 and stated that the accused was arrested at 06:30 P.M. on the selfsame day. The case property, i.e., recovered contraband was also presented before the trial court, which was exhibited as Material Exhibit 1. 5) In the cross-examination, PW1 stated that he alongwith other police personnel proceeded for patrolling duty on 29.05.1999, at 01:30 P.M. When he returned to the police station, he recorded the entry to this effect in the G.D. PW1 admitted that the recovered contraband was not weighed by him. There was no shop in the vicinity of the place of recovery. PW1 obtained the signatures of the accused on recovery memo (Ext. Ka-1). He denied the suggestion that recovery memo was not read over to the accused. The cloth, in which the contraband was sealed, was taken from S.I. Harendra Singh (PW3). Wax was available with PW3. Matchbox was available with Constable Prakash Chand. The recovery memo was prepared at the place of recovery itself. When the accused was arrested, no person from the public was available. PW1 tried to find out some independent witness, but nobody came forward to be a witness to the recovery. Wax was available with PW3. Matchbox was available with Constable Prakash Chand. The recovery memo was prepared at the place of recovery itself. When the accused was arrested, no person from the public was available. PW1 tried to find out some independent witness, but nobody came forward to be a witness to the recovery. The police personnel returned to police station, Bageshwar in police Gypsy. Weighing machines were available to them on way to the police station, but since the police personnel had already sealed the case property at the place of recovery, therefore, they did not consider it proper to break open the seal and weigh it again. 6) PW2 supported the prosecution story and stated that on 29.05.1999, he was posted as S.I. in police station, Kotwali Bageshwar. He was entrusted the job of investigating the case. During the course of investigation, he took the statement of PW1 and other witnesses. PW2 also took statements of the accused, inspected the place of recovery, prepared site plan (Ext. Ka-2), sent the contraband to F.S.L., Agra. Later on the investigation was transferred to PW5. 7) In his cross-examination PW2 stated that he did not submit charge-sheet against the accused. He recorded statements of S.I. Surendra Singh, chik writer Shiv Kumar Sharma, Constable Virendra Singh, Constable Prakash Chand, Constable Chavad Singh and Constable Gaje Singh. PW2 also recorded the statements of PW1 and PW3 also. He did not record the statement of any independent witness because no name of such public witness was disclosed to him. PW2 further admitted that site plan (Ext. Ka-2) was in his handwriting, but probably he could not append his signatures on the same. The contraband was sent to F.S.L. on 10.06.1999. PW2 admitted that he was given the medical certificate of the accused during the investigation. 8) PW2 was again called as PW4 to prove chik FIR (Ext. Ka-3). He stated that Ext. Ka-3 was in the handwriting of Shiv Kumar Sharma. PW2 (PW4) was familiar with the handwriting of Shiv Kumar Sharma and, therefore, he proved the same as Ext. Ka-3. According to PW4, he did not know the present place of posting of Shiv Kumar Sharma. 9) PW3 also supported prosecution story and stated that on 29.05.1999, when he was posted as S.I., police station, Bageshwar, he accompanied PW1 S.S.I. Ganga Singh and other constables, including Virendra Singh, Prakash Chand for patrolling duty. Ka-3. According to PW4, he did not know the present place of posting of Shiv Kumar Sharma. 9) PW3 also supported prosecution story and stated that on 29.05.1999, when he was posted as S.I., police station, Bageshwar, he accompanied PW1 S.S.I. Ganga Singh and other constables, including Virendra Singh, Prakash Chand for patrolling duty. When they reached near Chandrika Devi Trisection, accused was found in suspicious condition. Accused was asked to stop, but he did not. He was chased and apprehended near Chandrika Devi Trisection at around 06:30 P.M. Accused disclosed his name as Sher Singh. Accused apologized and stated that he was in possession of charas. Accused was given the option of search by a Gazetted Officer or a Magistrate, to which he declined. Accused gave the same in writing (paper no. 6 Ka/3). PW1 took his search. Accused was found in possession of charas, which was kept in a polythene bag. Polythene bag was being carried by accused. Prima facie, it appeared to be cannabis. The same was approximately 500 gms. Accused could not produce the licence to keep the same. Cannabis was kept in a white cloth and was sealed. Specimen seal was prepared. Recovery memo (Ext. Ka-1) was also prepared. Chik FIR (Ext. Ka-3) was lodged on the basis of recovery memo (Ext. Ka-1). No public witness could be procured. Accused alongwith case property was taken to the police station, where after the FIR was registered. 10) In his cross-examination, PW3 stated that Constables Harendra and Virendra were posted in police station, Bageshwar when the contraband was recovered from the possession of the accused. PW3 denied the suggestion that Constables Harendra and Virendra stopped the accused from holding bangles shop under banyan tree, demanded money, and when accused did not pay gratification, he was falsely implicated in the case. PW3 further stated that he alongwith other police personnel proceeded on patrolling duty at 01:30 P.M., on 29.05.1999. The case was investigated by PW2 (PW4). Since the accused expressed unwillingness to get himself searched by a Gazetted Officer or a Magistrate, therefore, PW1 searched him. In his cross-examination, PW3 further stated that when the accused was arrested, information to the immediate official superior to this effect was given [but no document is filed on record to corroborate the same]. The contraband was not weighed on the weighing machine. No public witness was available there. In his cross-examination, PW3 further stated that when the accused was arrested, information to the immediate official superior to this effect was given [but no document is filed on record to corroborate the same]. The contraband was not weighed on the weighing machine. No public witness was available there. It took them about 1-1:30 hours to prepare recovery memo etc. on the place of recovery. Bhagirathi village was situated at a distance of half a kilometer from the place of incident. No police personnel was sent to the nearby village to procure the attendance of any independent witness. 11) PW5 conducted the investigation of the case at some length. It has been indicated earlier that the earlier part of investigation was conducted by PW2 (PW4), which was subsequently transferred to PW5. After being satisfied that the accused committed an offence, PW5 submitted charge-sheet (Ext. Ka-4) against the accused. During the investigation, PW5 obtained the report of F.S.L., Agra. He also proved that Ext. Ka-3 was in the handwriting of Shiv Kumar Sharma. 12) In the cross-examination, PW5 stated that the charge-sheet was submitted earlier and the report of F.S.L. came later on 25.08.1999. PW5 did not see the contraband since its recovery. He did not go to the place of recovery, in as much as the same was visited by his predecessor in office. PW5 denied the suggestion that the accused was falsely implicated in the case. 13) This Court has given an account of almost complete examination-in-chief and detailed cross-examination of the prosecution witnesses in the foregoing paragraphs of this judgment. The Investigating Officer ought to have obtained the report of F.S.L. first and then only (he) should have submitted the charge-sheet, although the F.S.L. has given the report in the affirmative that the representative sample sent to it was cannabis. The police personnel were required to procure the attendance of any public witness in the particular circumstances of this case (ref: bangles shop). So far as weighment of the contraband is concerned, it was obligatory on the part of the police personnel to have weighed the contraband. They mentioned the weight of the contraband tentatively. The Notification appended to NDPS Act indicates that upto 100 gms. of cannabis is in the small quantity and the commercial quantity starts from one kilogram. Accused was found in possession of 500 gms. of cannabis. They mentioned the weight of the contraband tentatively. The Notification appended to NDPS Act indicates that upto 100 gms. of cannabis is in the small quantity and the commercial quantity starts from one kilogram. Accused was found in possession of 500 gms. of cannabis. 14) It is argued by learned counsel for the appellant that the F.S.L. has indicated that 450 gms. of charas (cannabis) was sent to F.S.L. Learned counsel for the appellant argued that if the entire charas was sent to F.S.L., what, then, was kept by the police personnel in malkhana and produced before the court below? It has come in the evidence that the cannabis was not weighed. It’s weight of 500 gms. was only tentative. It is just possible that the recovered cannabis was 450 gms. only and, therefore, neither the same was kept in malkhana, nor produced before the trial court. Even if anything was produced before the trial court, the same did not pertain to this case. 15) There appears to be some sense in the contention of learned counsel for the appellant. Although Mat. Ext. 1 was proved by PW1, who said that some pieces of cannabis were kept in a polythene bag, but it is doubtful whether Mat. Ext. 1 pertain to the case property, a representative sample of which was sent to F.S.L., Agra, and a report in respect thereof was sent to the Sessions Judge, Almora, vide report dated 18.08.1999. It is admitted by PW1, as also by other police witnesses, that the contraband was not weighed at the time of its recovery from the possession of the accused. The exact weight of the contraband was, therefore, not confirmed. It could not be said that the same was essentially 500 gms. in weight. It is just possible that the same could be 450 gms. and when the entire contraband i.e. 450 gms. was sent to F.S.L., what remained with the police in malkhana and what was presented before the trial court, which was exhibited as Mat. Ext. 1? This was the biggest lacuna in the prosecution story. 16) Such lacuna was further highlighted by the statement of PW5 (I.O.), who stated in no unequivocal terms that he did not see the recovered contraband till date. He also admitted that the representative sample was not received by him alongwith the report of F.S.L. dated 18.08.1999. Ext. 1? This was the biggest lacuna in the prosecution story. 16) Such lacuna was further highlighted by the statement of PW5 (I.O.), who stated in no unequivocal terms that he did not see the recovered contraband till date. He also admitted that the representative sample was not received by him alongwith the report of F.S.L. dated 18.08.1999. PW5 did not think it proper to visit the place of recovery when the part investigation was entrusted to him. It appears that the charge-sheet against the accused was submitted in lackadaisical manner without having obtained the report of F.S.L. 17) It is surprising to note that the entire contraband, alleged to have been recovered from the possession of the accused, was sent to F.S.L. for chemical examination. Nothing remained with the police personnel. Nothing was kept in the malkhana and it appears that some other case property was produced before the court below as Mat. Ext. 1. This Court is unable to reconcile with such a situation. Even if the other infirmities, a brief discussion of which has been given in the foregoing paragraphs of this judgment, might have been explained by the prosecution, but this lacuna on the part of the prosecution is irreconcilable. 18) It was held in Sarju alias Ramu vs State of U.P., 2009 (5) Supreme 730 , that since the provisions of the Narcotic Drugs and Psychotropic Substances Act 1985, Act are harsh in nature, therefore, the procedural safeguards contained therein must scrupulously be complied with. 19) There is yet another aspect of the matter. In the instant case, no information was given to the immediate official superior that 500 gms. of contraband was recovered from the possession of the accused. It was incumbent upon the police personnel to have informed the immediate official superior of such recovery. No document has been brought on record to show that the immediate official superior was informed of the recovery of contraband and subsequent arrest of the accused. Learned trial court, therefore, committed a manifest error of law in holding that the information to the immediate official superior was not necessary. Although PW3 stated in his cross-examination that intimation to the immediate official superior was given after the arrest of the accused, but no such document has been brought on record by the prosecution. Learned trial court, therefore, committed a manifest error of law in holding that the information to the immediate official superior was not necessary. Although PW3 stated in his cross-examination that intimation to the immediate official superior was given after the arrest of the accused, but no such document has been brought on record by the prosecution. PW5 admitted that no such information was given to the immediate official superior before the arrest of the accused. 20) The alleged recovery from the possession of accused-appellant, therefore, becomes doubtful. In such a situation, will it not be proper to grant the accused benefit of doubt? 21) For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed. 22) Accused-appellant is on bail. His bail bonds are cancelled and sureties stand discharged. He need not surrender. 23) Let a copy of this judgment alongwith the lower court records be sent to the Court below for compliance.