Kuldip Singh vs State of Punjab

M. Jeyapaul, J.—Accused Kuldip Singh was convicted for the offence u/s 21 of the Narcotic Drugs and Psychotropic Substances Act,

1985 (in short ''NDPS Act''). He has challenged the judgment of conviction and sentence passed by the trial Court. Hence, the present appeal.

The brief case of the prosecution is that on 26.5.2004, PW1 Assistant Sub Inspector Gurnam Singh proceeded alongwith other police officials to

the bridge at Ganda Nala near Bhagtanwala railway crossing and held a Nakabandi. The independent witness Swaran Singh was also joined. At

about 4:00 pm PW1 saw the accused coming from the side of the railway crossing. On seeing the police, he got perplexed and tried to turn back.

On suspicion, he was apprehended. As per his preference, PW2 DSP Ashwani Kapoor a gazetted officer was associated for the purpose of

search. In his presence, a search was conducted. 40 grams of smack was recovered from the right pocket of his pants under recovery memo

Ex.PC. The seal used By PW1 was handed over to one ASI Harnam Singh. The accused and the case property were entrusted to PW4 Inspector

Hardev Singh who was the S.H.O. The FSL report would read that the samples sent for examination were nothing but smack.

The trial Court having adverted to the entire evidence on record returned a finding that the accused committed the offence punishable u/s 21 of

the NDPS Act.

I heard the submissions made by the learned counsel appearing for the appellant/accused as well as the Assistant Advocate General appearing

for the State.

One Swaran Singh was allegedly associated by PW1 for the purpose of search. No reason has been assigned by the prosecution as to why

such'' an independent witness Swaran Singh was not examined before the trial Court. A specific question was put to PW1 during the course of

cross examination that the very same witness Swaran Singh was cited as one of the witnesses in the case in State v. Baljinder Singh which was

coming up for hearing on the day when PW1 was cross examined. PW1 having disclosed that he was not aware of such a fact contended that he

was not an investigating officer in that case. Though the defence has not produced any record to show that the said witness Swaran Singh was also

cited as one of the witnesses in State v. Baljinder Singh, the aforesaid suggestion and the nature of answer given by PW1 would go to suggest that

Swaran Singh was infact a stock witness who was associated by PW1. Roping in a stock witness for the purpose of recovery causes a doubt in

the case of the prosecution. Even if he was not a stock witness, the prosecution should have examined him before the Court.

When the independent witness was present alongwith PW1 for the purpose of search, PW1 had chosen to hand over the seal used by him to

one ASI Harnam Singh, who was also not examined before the Court.

PW1 has not spoken anything about the preparation of CFSL form at the spot. PW2 DSP Ashwani Kapoor also would depose that in his

presence CFSL form was not prepared at the spot. PW4 in his part would depose that infact no CFSL form was prepared in his presence. But on

going through the CFSL form Ex.PX, it is found that PW4 Inspector Hardev Singh had infact signed the said CFSL form. The prosecution has

come out with a totally inconsistent version with respect to the preparation of the CFSL form. At any rate, the CFSL form was not prepared at

the-spot. The evidence of PW4 would go to show that he kept the case property in his custody in double lock. It is to be noted that as per the

evidence of PW4, there was no register maintained to note down the movement of the case property kept in double lock. In the above

background, the Court will have to seriously take note of the fact that the sample which was allegedly drawn on 26.5.2004 reached the Chemical

Examiner only on 10.6.2004. The delay of about fifteen days was not explained by the prosecution.

The non examination of the independent witness, handing over of the seal after use to one of the police officials when an independent witness

was present, non preparation of the CFSL form at the spot, failure to keep the case property in Malkhana and the delay of fifteen days in sending

the samples to the Chemical Examiner create a doubt in the case of the prosecution.

To top it all, the accused who was serving as a Constable in the very same district would not have got perplexed on seeing the police party and

made an attempt to turn back. The demeanor of the accused at the spot spoken to by PW1 does not stand to reason.

For all these reasons, I find that the prosecution has failed to establish that the accused was found in conscious possession of 40 grams of

smack. In view of the above, the judgment of conviction and sentence recorded by the trial Court is set aside. The accused is acquitted of the

charge u/s 21 of the NDPS Act. Consequently, the appeal is allowed.