Hardas Masih vs State of Punjab

Sabina, J.—The Appellant was convicted for an offence u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act-for short) vide judgment dated 18.1.2001 by the Additional Sessions Judge, Gurdaspur. Vide order of the even date, the Appellant was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/-. Hence, the present appeal.

Prosecution case, as noticed by the trial Court in para 2 of its judgment, is reproduced herein below:

On 18.7.1998, a police party headed by Sukhdev Singh, Inspector SHO, PS Qadian, was going from village Tatle to kuhar, in connection with patrol duty. When they reached near the bridge of canal minor, in the area of village Tatla, the accused was seen coming from the side of Village Thankar Sandhu, by the bank of canal minor. On seeing the police party the accused sat down upon this suspicion having aroused, he was apprehended and his search which was carried out as per rules led to the recovery of 1 K.g. of poppy husk, which he was carrying in a Jhola. 250 gms was taken out as sample. Two parcels one of the sample and the other of the residue were prepared at the spot and were sealed with the seal bearing impression ''SS'' and were taken into possession vide memo No. PB duly attested by the witnesses. Ruqa Ex.PC, was sent to the police station on the basis where of formal FIR EX.PC/1 was recorded. Before conducting search of the accused, the accused was made aware of his right of search either before the Gazetted Officer or before the Tehsildar or before the Inspector himself. The Investigator then prepared the rough site plane of the place of recovery and recorded the statement of the witnesses and on return to the police station deposited the case property with the MHC, with seals intact. On receipt of the report of the chemical Examiner and on completion of investigation the accused was challaned u/s 15, 61-85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to face judicial trial.

None has appeared on behalf of the Appellant.

I have gone through the record of the case with the able assistance of learned State counsel and am of the opinion that the present appeal deserves to be allowed.

As per PW-4 Sukhdev Singh, on 18.7.1998 he was present along with other police officials on patrol duty near bridge of canal minor in the area of village Tatle. The Appellant, who was coming along the bank of the canal minor, was apprehended on the basis of suspicion. On search of the bag carried by the Appellant, one kilogram of poppy husk was recovered. Out of the recovered poppy husk, 250 grams was separated as a sample. The sample as well as the remaining poppy husk were made into sealed parcels and were sealed with seal bearing impression SS. On return to the police station, the case property was handed over to MHC Kuljit Singh. PW-3 SI Rattan Lal has corroborated the statement of PW-4 Sukhdev Singh. PW-2 HC Kuljit Singh had deposed that on 18.7.1998, case property was deposited with him. On 27.7.1998, the sample was handed over by him to Constable Vijay Singh for depositing the same with the Chemical Examiner. PW-1 Constable Vijay Singh deposed that on 27.7.1998, he was handed over the sample by MHC Kuljit Singh for depositing the same with the Chemical Examiner. He deposited the same with the Chemical Examiner, Jalandhar on 28.7.1998. In his cross-examination, he deposed that there were five seals on the sample. DW-1 Lakhwinder Singh has deposed that he was a member panchayat of the village and knew the Appellant. About 2 1/2 years back, Appellant had been apprehended by the police from his house at about noon time. He along with other respectable including Sarpanch and Lambardar had gathered there and had also gone to the police station but the police kept on promising that the accused would be released but after three days the Appellant was falsely involved in a case and was sent to judicial lock up.

The punishment provided under the Act is stringent in nature. The present case relates to a case before the amendment in the Act. A minimum punishment of rigorous imprisonment for ten years was provided under the Act at that time. Although the Appellant was found in possession of one kilogram of poppy husk but as per the provisions of the old Act, the Appellant was liable to be sentenced to undergo rigorous imprisonment (minimum) ten years. In these circumstances, the prosecution was required to establish its case beyond the shadow of reasonable doubt. No independent witness was joined by the prosecution at the time of alleged recovery. PW-4 Sukhdev Singh has deposed that they had tried to join some witnesses from public but none was available. In his cross-examination, he deposed that the spot was a thoroughfare but at that time only few people were passing by. He denied the suggestion that the accused had been taken from his village on 16.7.1998. Since no independent witness has been joined in this case, the prosecution case becomes doubtful especially in view of the statement of DW1, who is none other than a member Panchayat. The said witness has categorically deposed that the Appellant was picked up from his house. Although PW-3 and PW-4 have denied the suggestion that the Appellant was picked up from his house on 16.7.1998 but the testimony of DW-1 makes the prosecution case doubtful especially in the facts and circumstances of the present case, where small quantity of poppy husk is alleged to have been recovered from the Appellant.

Accordingly, the impugned judgment of conviction and order of sentence passed by the trial Court are set aside. The Appellant is acquitted of the charge framed against him.