Santosh Kumar vs State of Haryana

A.S. Nehra, J.

This appeal is directed against the judgment and order dated 6.5.1987 passed by the Additional Sessions Judge, Karnal, by which Santosh Kumar, appellant was convicted under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 1,00,000/ and in default of payment of fine, to further undergo R.I. for five years.

The prosecution story, in brief, is that on 2.5.1986, ASI Radhey Sham of P.S. City, Panipat, accompanied by HC Dhanraj and constable Dharam Pal and Ram Kishan was present at Bus Stand, Panipat on special duty, when the accused carrying a bag on his left shoulder, was seen coming from the opposite direction, who on seeing the police party, retraced his steps towards the outer gate of the Bus Stand but he was apprehended on suspicion. On personal search of the bag, opium wrapped in a polythene bag was recovered, which on weighment came to be 3 Kgs. Out of the said quantity, 10 grams were separated as sample. Both the sample and residue opium were separately sealed with the seal bearing inscription ''RSS'' and taken into possession vide recovery memo, Ex.PA. Thereafter the Investigating Officer sent ruqa, Ex.PB, to the police station, on the basis of which formal FIR, Ex.PB/1, was recorded, prepared rough site plan, Ex.PC, recorded statements of the witnesses, arrested the accused and on return to the police station, produced the case property before the SHO, who affixed his seal on both the sealed parcels, whereafter the case property was deposited with the MHC. On receipt of the report of Chemical Examiner, Ex.PD and after completion of investigation, the challan was presented against the accused.

To prove its case, the prosecution examined PW1 HC Dhanraj and PW2 ASI Radhey Sham. Besides, affidavit Ex.PE of MHC Bhale Ram and affidavit Ex.PF, of Constable Sunder Lal, as also report Ex.PD of Chemical Examiner, were also tendered in evidence.

When examined under Section 313 of Code of Criminal Procedure the accused denied the prosecution allegations against him and pleaded his innocence and false implication. He, however, did not lead any evidence in his defence.

I have heard Mr. T.P.S. Mann, Advocate for the appellant and Mr. Gobind Dhanda, Assistant Advocate General, Haryana for the State and have gone through the material on record carefully.

Learned counsel for the appellant contended that the prosecution had tendered two affidavits of HC Bhale Ram, Ex.PE and that of Constable Sunder Lal, Ex.PF, but the contents of these affidavits were not put to the accused, when he was examined under Section 313, Criminal Procedure Code, and as such when this link evidence was not put to the accused, the same could not be considered at all for convicting the accused. He further contended that though, it was called a link evidence but it was a very material piece of evidence to prove the fact that the sample was not tampered with; that after the seizure, it was duly sealed and kept intact in the police Malkhana and in the same condition, it was sent to the Chemical Examiner for analysis.

After hearing the learned counsel for the appellant and learned Assistant Advocate General, Haryana, I am of the considered opinion that this evidence in the form of affidavits, which had not been put to the accused, when he was examined under Section 313, Criminal Procedure Code, cannot be considered at all for convicting the accused. Though, it is called link evidence but it is a very material piece of evidence to prove the fact that the sample was not tampered with; that after the seizure it was duly sealed; that it was kept intact in the police Malkhana and in the same condition, it was sent to the Chemical Examiner for analysis. Since, the affidavits, Ex.PE and PF, tendered by the prosecution cannot be considered for convicting the appellant, the report of the Chemical Examiner, Ex.PD can also be not read in evidence against the accused. Accordingly, the appeal is allowed and the appellant is acquitted of the charge, as he has earned benefit of doubt. If he is in jail and not required in any other case, he be set at liberty forthwith. The fine, if deposited, be returned to him.