Shashi Atwal and Another vs State of Punjab

A.N. Jindal, J.—Shashi Atwal and Surender Singh, both Assistant Sub Inspectors of the Punjab Police were prosecuted for allegedly having

been found in possession of two bags of poppy husk. Consequently, they were convicted and sentenced to undergo rigorous imprisonment for ten

years and to pay fine of Rs. one lac, each.

The allegations, which emerge from the prosecution case are that on 8.7.2000, Inspector Balwinder Singh along with other police officials,

including Sub-Inspector Janak Singh (not examined), in-charge of Police Post Civil Lines, Bathinda was holding ''nakabandhi'' i.e, picket at Bus

Stand Fauzi Chowk, Bathinda, where, Sub-Inspector Janak Singh received a secret information to the effect that ASI Surender Singh, working as

Cashier in Police Lines, Bathinda was storing poppy husk in a rented house (of Kaur Singh) at Bibiwala Road and he used to bring the poppy husk

from outside and sell the same to the customers and he could be apprehended red-handed. On the basis of the aforesaid secret information,

Inspector Balwinder Singh sent ruqa (Ex.PB) through C. Tarsem Singh, on the basis of which formal First Information Report (Ex.PB/1) was

registered at Police Station Kotwali Bathinda. Inspector Balwinder Singh sent the message to ASP P.K. Rai, who also reached the place of

information i.e. Fauzi Chowk. After apprising him of the information, he along with other police officials, including ASP P.K. Rai and after

associating PW Gurtej Singh, an independent witness, reached the disclosed place i.e. the rented house, allegedly owned by Kaur Singh. When

they reached near the gate of the house, accused Surender Singh was seen sewing the gunny bag, whereas, accused Shashi Atwal was standing

near him. On seeing the police party, both of them fled away from the scene. Inspector Balwinder Singh, on checking of the gunny bag, being

sewned as well as another bag lying nearby, found to be containing poppy husk. On weighment, each gunny bag containing poppy husk came to

be 30 kilograms. Both the bags were marked as Sr. No. 1 and 2 and samples of 250 grams from each bag were taken out. Thereafter, the bags as

also the sample parcels were sealed by Inspector Balwinder Singh with his seal bearing impression BS''. Sample seal was also prepared

separately. The case property was taken into possession vide memo Ex.PA. The Investigating Officer prepared the rough site plan, recorded the

statements of the witnesses and on return to the Police Station Kotwali Bathinda, Inspector Balwinder Singh produced the case property before

Inspector Mohinder Kumar, who after affixing his seal bearing impression ''MK'' on the case property as well as the sample seal chit, took the

same into possession vide memo Ex.PD. On the same day, the case property was produced before Ilaqa Magistrate with an application (Ex.PF),

who vide order Ek.PF/1 verified the case property. On 19.7.2000, the samples were sent to the office of the Chemical examiner, Patiala, who

vide his report Ex.PZ found the same to be ''poppy husk''. Thereafter, a report u/s 173 of the Code of Criminal Procedure, 1973 was presented

against the accused.

Finding a prima facie case against the accused, they were charged for offence u/s 15 of the Narcotic Drugs & Psychotropic Substances Act,

1985 (for brevity the Act), to which they pleaded not guilty and opted to contest. In order to substantiate the charges, the prosecution examined

P.K. Rai, Superintendent of Police (PW1), Inspector Balwinder Singh (PW2), Inspector Mohinder Kumar (PW3), Constable Manjit Singh

(PW4), Sub-Inspector Dinesh Kumar (PW5), Gurtej Singh (PW6), Head Constable Karamjit Singh (PW7), Assistant Sub Inspector Malkiat

Singh (PW8), Head Constable Baldesh Singh (PW9), Assistant Sub Inspector Hukam Chand (PW10), Head Constable Santokh Singh (PW11),

Assistant Sub Inspector Sukhdev Singh (PW12), Head Constable Bhag Singh (PW13), Head Constable Rai Bahadur Singh (PW14) and

Assistant Sub Inspector Angrej Singh (PW15).

On closure of the prosecution evidence, the accused were examined u/s 313 Code of Criminal Procedure, wherein, they pleaded their false

implication in the case. Accused Surender Singh further added as under:

I am innocent and falsely implicated in this case. I have no concern with alleged place of recovery and contraband. I joined police force on

8.8.1992 as Probationary Assistant Sub Inspector of Police. I have unblemished service record. No adverse entry or enquiry is pending against

me, except the alleged FIR. On 7.7.20001 was posted as Cashier Police Line, Bathinda to distribute the salaries of police personnel, who are

working under the jurisdiction of SSP Bathinda. During my tenure, Shri Jatinder Kumar Jain misused his powers and misused government funds

due to misuse of his power, because according to the orders of DGP, Punjab, SSP Bathinda can only take Rs. 4350/- as advance, but he misused

lot of funds to settle down a famous firing case known as ''Jethuke firing case''. This money was allegedly used from the police funds. A dispute

arose between me and Shri Jatinder Kumar Jain, SSP, Bathinda with regard to the return of the said amount. I requested him to refund all the

money, otherwise, I will bring all these things to the notice of my seniors. So, he got annoyed and on 31.6.2000, he deputed Shri Harbhaj Singh

SP(H) to check and make corrections in the record. SP(H) only attested the cash book of Police Lines Bathinda and not attested the Chest

Register of safe (where money is deposited, is, known as Chest Register). On 7.7.2000, SSP Bathinda ordered his colleague ASP P.K. Rai, to

make checking of the record to save his own skin in money matter. SSP P.K. Rai with his accomplice, forcibly took the keys from my house from

my wife and made entries in the cash book and Chest Book and gave false certificate of ""Checked and found correct"". This false certificate has

been given to save the skin of SSP. These entries and the Register were also summoned by the Ld.Court as the matter was taken up at the time of

defence. On 7.7.2000, the charge of Cashier was forcibly taken from Assistant Cashier HC Satpal Singh and handed over to Sub-Inspector

Savinder Singh. I was implicated in this case to teach me a lesson. Nothing incriminating was recovered from me.

The accused Shashi Atwal further explained as under:

I joined police force on 2.2.1990 as P/ASI. During my service, I have hold the office of Station House Officer and Incharge of Police Posts many

a time.

On 8.7.2000, I was posted at P.S.Kotwali Bathinda as Investigating Officer. Before my posting at Kotwali, I was posted as Incharge Police

Chowki, Nandgarh near Village Badal (to which CM, Punjab belongs). I have worked there for three years. Shri Jatinder Kumar Jain was earlier

posted as S.P. (D) at Bathinda before his posting as SSP. At that time, he forced me to register some false cases against some political persons,

who were against the Government or political persons related to their close rivals. I refused to do so and he got annoyed with me. After that he

was transferred and again posted as SSP Bathinda. Due to political reasons, on coming to Bathinda as SSP, when I was posted as Assistant

Station House Officer, Balianwali, he suspended me and opened a lot of enquiries against me. When nothing adverse was found in these enquiries,

he with his accomplice P.K. Rai got registered the present case and implicated me falsely under NDPS Act to ruin my future by concocting cock

and bull story. I am innocent. My name was not mentioned in '' the FIR. Nothing incriminating was recovered from me. I have no concern with

alleged poppy husk and place of recovery.

In defence, the accused examined Kaur Singh (DW1), who was allegedly the owner of the house and had allegedly given the same on rent to

the accused: He states that he never leased his house to Surender Singh and the police never raided his house. ASI Sawinder Singh (DW2),

Incharge, Bank Security, Mohali has stated from the records of trie Cash Book pertaining to the period 6.7.2000 to 5.10.2000 that on 7.7.2000

ASP P.K. Rai had checked the Register. On the said date, a sum of Rs. 17,19,972/- was in the charge of this witness and an amount of Rs.

8,00,000/- was in the Chest which amount-was handed over to Sub- Inspector Balwinder Singh on 15.7.2000. Key of the safe was also taken

from HC Sat Pal. HC Sandhura Singh (DW3) has stated from Daily Diary Register No. 19 of the year 2000 that there is no entry regarding the

departs and arrival of Constable Manjit Singh on 19.7.2000 to the office of Chemical Examiner. However, the trial resulted into conviction.

The counsel for the accused in order to prove the innocence of the Appellants has raised multifold contentions; firstly that no sufficient evidence

has been led on the record to prove if the house in question from where the recovery was effected, was in occupation of Surender Singh as tenant;

no reinitiate, much less a rent receipt was proved or produced to prove the tenancy; the name of the accused Shashi Atwal has been introduced

later on, as his name does not find mention in the Ruqa (Ex.PB) or the FIR(Ex.PB/l); his mere alleged presence in the room does not invite any

inference with regard to his possession of the poppy husk, allegedly recovered from the room; none of the accused was arrested at the spot and

they were arrested later on; no Test Identification Parade was got conducted for establishing their identity; Gurtej Singh, alleged independent

witness also appears to be an interested witness as his name does not figure in the FIR as well as in the detailed report, vide which the recovery of

poppy husk was effected from the room; (Kaur Singh, landlord has also not been examined in order to establish the fact of leasing out the room to

the accused, however, he has appeared in defence and has negatived the plea of the prosecution regarding the leasing out of the portion of his

house to accused Surender Singh; there are serious contradictions in the statements of the witnesses, which go to the root of the matter and falsify

the prosecution version; the case property appears to be tampered with; SI Janak Singh, who received the secret information has not been

examined; the secret in formation was not sent to the higher officers; the bags after opening were not turned so as to know the whole contents

thereof; the case is replete with many improbabilities and accused Surender Singh had been implicated in the case as he had filed the writ petitions

against the Senior Superintendent of Police. Similarly, the accused Shashi Atwal was involved as he did not respond to the command of Senior

Superintendent of Police, Bathinda. Thus, they deserve to be extended benefit of doubt.

On the other hand, Mr. Amit Chaudhary counsel for the State has urged that the case is based on the testimonies of the responsible officers,

including Shri P.K. Rai, an officer of the rank of ASP. The samples were taken and sealing was done with responsibility and the mere fact that they

are the employees of the police department, is hardly sufficient to exonerate them only on the ground that they have levelled allegations against

some senior officers.

Arguments heard. Record perused.

It is not an ordinary case, where implicit reliance could be placed on the testimonies of the official witnesses alone as the accused themselves are

the officers of the Police Department and had levelled allegations of bias against the Senior Superintendent of Police Sh.Jatinder Kumar Jain.

Notwithstanding the fact that there is no bar in placing reliance upon the police officials, but in cases against the persons of the same Department,

some sort of corroboration from independent source becomes essential and, rather is the rule of prudence. In the instant case, the prosecution

allegedly joined Gurtej Singh, the son of the landlord at the time of effecting the recovery and to attest the recovery memo, but his joining at the

time of raid is doubtful. Admittedly, Gurtej Singh was not associated at the time of sending the ruqa. Had he been associated at that time, then his

name would have figured in the ruqa. It cannot be denied that as per allegations, the accused were not found in the room and they had allegedly run

away from the backside of the house. It cannot be believed that they had run away in the presence of such a heavy police force consisting of one

ASP and 11/12 police personnel. At the same time, I have my reservations to believe the joining of Gurtej Singh at the time of the raid. First of all,

it is not explained as to why only Gurtej Singh was joined. Secondly, record reveals that after sending the Ruqa, the police party consisting of

11/12 police officials/officers, including ASP P.K. Rai, Inspector Balwinder Singh and Sub-Inspector Janak Singh proceeded to raid the place of

information and on reaching there and effecting the recovery of poppy husk, the Investigating Officer prepared a detailed report Ex.PE. However,

the said report does not contain the name of Gurtej Singh as a witness. Had he been present at the time of recovery of the poppy husk, then his

name must have been mentioned in the report Ex.PE. However, the Investigating Officer has tried to introduce his name in the application, vide

which the case property was to be deposited in the Malkhana after perusal of the court. That application does not in any way help to prove the

truthfulness regarding presence of Gurtej Singh. Had he been actually present at the spot, then he must have attested other documents also, but no

such document as allegedly prepared by the police at the spot bears the signatures of Gurtej Singh. Thus, Gurtej Singh appears to be an introduced

witness.

With regard to the other contention regarding tenancy of the house, though, Gurtej Singh states about the tenancy, but his father Kaur Singh has

made complete denial about the same. In such situation, some sort of authentic evidence could be produced. However, in order to prove this fact

requirement of law was to produce the landlord/ owner of the said house and also to produce the document of lease on the record, but neither the

lease document was produced, nor Kaur Singh was examined by the prosecution. In any case, had the accused been caught red-handed at the

spot, then they could be said to be in possession of the premises, much less temporary, but since they were not arrested at the spot and no such

evidence has been led to prove the tenancy of accused Surender Singh, and even Kaur Singh, owner of the house while appearing as DW1 has

not supported the prosecution version and has stated that the accused Surender Singh was not his tenant. No witness from the locality was

examined in order to establish if the accused Surender Singh had taken the alleged premises on rent. P.K. Rai, ASP (PW1) has admitted that there

was no luggage or personal belongings of the accused in the room. People of the neighborhood had gathered on the roofs, but statement of no-one

was recorded to know about the tenancy of Surender Singh. It is further admitted that Surender Singh is residing in the Police Lines along with his

family. Thus, I hasten to hold that Surender Singh was in possession of the premises owned by Kaur Singh.

The story of absconding of the accused from the tenanted premises from its backside does not appear to be plausible. About 12 police

personnel, including the ASP had raided the premises in three vehicles (one police gypsy, one private jeep and one car). It has also come in

evidence that nothing was visible from the main gate of the house. Therefore, the allegation that the police officers had seen the accused in the

room, where Surender Singh was allegedly sewing the bag, cannot be believed. The room is the part of the big house. On two sides of the house in

question, there are houses and on the third side there is a stadium. It has not been alleged as to through which side of the house, the accused

succeeded in running by boarding the Car. Again, it is mentioned that the accused never knew that they could be apprehended and there was no

passage or road on the back side of the house as per site-plan, then why they would park the car for the purpose of running from back-side. It is

also surprising that in presence of such big number of police personnel, the accused succeeded in running and the police party failed to nab them.

It would further be significant to mention here that Sub- Inspector Janak Singh, who allegedly had received the secret information has not been

examined, therefore, in his absence, it would be difficult to determine as to what information he had received and whether it was against both the

accused or one. It is also note-worthy that though it is alleged that accused Surender Singh was in possession of the room as a tenant in the house,

yet as shown in the site plan (Ex.PC), he cannot be said to be in exclusive possession of the room. Inspector Balwinder Singh (PW2) admits that

the accused were not in exclusive possession of the house as tenants and he has not shown specifically as to which portion of the house was under

the tenancy of the accused. He further states that he had not seen anything in the house, which could prove the residence of the accused. Neither

Shashi Atwal accused has been alleged to be tenant and in possession of the room, nor there was any information against him that he was also

party to the crime, then it is not explained as to for which reasons, and on the basis of which evidence, he was also treated in possession of the

poppy husk. It is admitted by the prosecution witnesses that accused Shashi Atwal was provided a house in Police Station Kotwali Bathinda,

however, he was residing in Gobind Singh Nagar, Bathinda. Balwinder Singh (PW2) further admits that accused Surender Singh had been

provided residence in the Police Lines, Bathinda, where, he was residing with his family. The Apex Court in case Om Parkash @ Baba v. State of

Rajasthan 2009(4) RCR (cri.) 342 has observed as under:

A bare perusal of the evidence aforementioned would reveal that the ownership and possession of the house and the place of recovery is

uncertain. As a matter of fact PW3 has categorically stated that the house from where the recovery had been made belonged to one Durga Bhanji

and not to the Appellant. Even assuming for a moment that the house did belong to the Appellant and was in his possession, the prosecution was

further required to show that the Appellant had exclusive possession of the contraband as a very large number of persons including the Appellant

and five of his brothers, their children and their parents were living therein. Admittedly, there is no evidence as to the Appellants exclusive

possession. In this situation, we find that the judgment cited by the learned Counsel that is Mohd. A. Khah''s case fully supports the plea on behalf

of the Appellant, we observe that in addition to the ocular evidence, the prosecution had also put on record a document pertaining to the

ownership of the house, but despite this, the Court held as under:

The prosecution did not bother to produce any independent evidence to establish that the Appellant was the owner of the flat in question by

producing documents from concerned Registrar''s office or by examining the neighbours. No statement has been made by the prosecution that in

spite of the efforts taken by them, they could not produce the document or examine the neighbours to prove the ownership of the Appellant relating

to the flat in question. It is relevant to note here that two independent witnesses attested the panchnama. Only one of them was examined as PW5

who did not support the prosecution version and therefore, was treated as hostile. In this case except the retracted statements of the Appellant to

connect the Appellant with the house in question, no other independent evidence is available to sustain the finding of the learned Special Judge

extracted in the beginning and confirmed by the High Court.

Now, coming to the present case, it is observed that it stands on better footing. The house does not belong to any of the Appellants. As per

the prosecution version besides accused Surender Singh, accused Shashi Atwal was also found present in the house. In addition to it, other

inmates of the family of the landlord i.e. Kaur Singh and his family members also reside there. Even Section 25 of the Act provides for a penalty

upon the owner / landlord of a house for allowing a person to use the premises owned or possessed by him, then why he would allow them to use

the premises. In case Sees v. State of Punjab 1995 (3) RCR (Cri.) 16 (P&H), there was recovery of 14 bags of poppy husk from the house of the

accused. Other members were also found living therein. This Court took the view that it cannot be taken that the recovery was effected from the

exclusive possession of the accused.

Assuming for the sake of arguments, has the accused taken the room on rent, then he being not in exclusive possession of the house cannot be

said to have kept the poppy husk and that he was having specific knowledge of the said poppy husk. The case of the prosecution is that accused

Surender Singh was sewing the bag containing poppy husk with a needle. Bom, P.K. Rai (PWl)and Inspector Balwinder Singh (PW2) have stated

that the said needle was not taken into possession by the police.

Specifically agreeing to the prosecution version that the secret information was received against Surender Singh, however, it is noticed that the

raid made by the police officers failed as they could not arrest him on the spot and he is stated to have ran away along with Shashi Atwal.

Presuming for the sake of arguments that accused Shashi Atwal was seen in the room of Surender Singh, then his mere presence along with

Surender Singh cannot be made the basis for implicating him in the case. Except the presence of accused Shashi Atwal with accused Surender

Singh, the prosecution has nothing to show regarding his involvement. His mere presence with Surender Singh in the room is hardly sufficient to

prove his collusion with Surender Singh. He may an on-looker friend, helper, companion or prospective purchaser, but, what was his status at that

time, has not been brought to surface. It appears that the prosecution in an anxiety to involve him in the case arrayed him as an accused along with

Surender Singh, without any further evidence. In order to bring home the charge of conscious possession, the prosecution has to prove the

knowledge and control of the accused over the said article. Mere presence of the accused at the place, from where the bags of poppy husk were

recovered by the police, is hardly sufficient to prove the conscious possession. The Apex Court in case State of Punjab v. Balkdr Singh and Anr.

2004 SCC (Cri.) 838 observed as under:

the presence of the Respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by

the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles.

The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of

these articles. Though the Respondents raised a plea before the sessions Court, the same was not considered by the Sessions Judge in the manner

in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the

Respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove

the possession of the poppy husk by the Respondent.

This Court has followed this view expressed in Balkar Singh''s case (supra), in number of cases e.g. Sukhdev Singh alias Sukha v. State of Punjab,

2006 (1) RCR (Cri.) 4 (P&H) and Bikkar Singh v. State of Punjab 2006 (3) RCR (Cri.) 16 (P&H). Even in Avtar Singh v. State of Punjab 2002

(4) RCR (Cri.) 180 : AIR 2002 SC 3343, it was observed by the Hon''ble Supreme Court that though the persons were found sitting on the bags,

but this alone would not be sufficient proof for they being in conscious possession of the contraband. Thus, the prosecution in the instant case was

not able to prove the contraband was recovered from the exclusive conscious possession of the Appellant.

Though, all the witnesses have stated that one sample from each gunny bag was taken out and then all the gunny bags were sealed with the seal

bearing impression ''BS'' It has also come in the evidence of the witnesses that the contents of the gunny bags were not turned in order to know the

whole of the contents therein. It would be significant to mention here that the Investigating Officer was supposed to know about whole of the

contents of the bag before bringing the accused into net. As such, this circumstance also seriously affects the prosecution case.

As regards tampering of the case property, he was to turn down all the contents of the bags on a piece of paper or cloth, but in the instant

case, the Investigating Officer appears to have not examined the contents of the bags; he took it casually and in an anxiety to involve the accused,

sealed the bags without knowing the whole contents thereof. Thus, in the absence of any evidence to the aforesaid extent, it cannot be believed that

whole of the contents of the bags were poppy husk. P.K. Rai (PW1) while appearing in the witness box has stated that one of the gunny bags

does not bear any seal. Inspector Mohinder Kumar (PW3) states that there is no seal on one bag brought in the court, nor it contained particulars

of the case. The second bag from the bottom was in torn condition. Thus, the inference would be drawn that the case property has been tampered

with or the bag bearing the seal of ''BS'' was not produced in the Court. The argument advanced by the Assistant Advocate General, Punjab* that

the bag was changed, as it had torn with the passage of time, cannot be accepted. The bag was neither changed in the presence of the accused or

any competent authority, much less the Investigating Officer.

There are two fundamental principles in criminal prudence; firstly, in cases involving the police officials, the law requires the prosecution to

prove the case by cogent and convincing evidence and remove all suspicion; secondly, that stringent the sentence, the stricter the proof. The instant

case is replete with material discrepancies. Inspector Balwinder Singh (PW2) admits that there were many people on the roofs of the house.

However, in cross-examination, he states that he had not seen any person on the roofs of the houses. He further states that except sealing the

sample and the case property, the seal was not used anywhere, specially to prepare the sample seal chit. Thus, as per his version, the sample seal

chit was not prepared at the spot;

In case Sukhdev Singh alias Sukha v. State of Punjab 2006 (1) RCR 4, the seal was given to the Sub-Inspector of Police and not to the

independent witness. The Division Bench of this Court was pleased to hold that the possibility of seal being tampered with, substance being

changed and the container being resealed, cannot be ruled out. In Bhola Singh v. State of Punjab 2005 (2) RCR 520, this Court observed that

CFSL form should be prepared at the spot and deposited in Malkhana. Where the seal remained with the police after use and the CFSL form was

neither prepared at the spot nor deposited in the Malkhana, such circumstance would be fatal to the prosecution case. Filling up of such form at the

spot is a very valuable safeguard to ensure that the sealed sample is not tampered with till its analysis ""by the Forensic Science Laboratory. This

Court adopted the similar view in case Jaswinder Singh v. State of Punjab 2009 (1) RCR (Cri.) 425.

Link evidence is also missing in this case. Inspector Mohinder Kumar (PW3) was directed by the Ilaqa Magistrate to keep the case property

in the Police Malkhana and accordingly, he appears to have deposited the same in the Police Malkhana on 8.7.2000. As per the prosecution

version, the samples were sent to the office of the Chemical Examiner on 19.7.2000 and he made his report back to the Police Station Kotwali

Bathinda on 21.7.2000. The Muharrar Head Constable (MHC), with whom the case property was deposited and who handed over the same to

Constable Manjit Singh (PW4), has not been examined. Inspector Mohinder Kumar (PW3) has not stated in his statement that he kept the case

property with him and so long, it remained in his possession, the same was not tampered with. There is also discrepancy with regard to the taking

of the sample to the office of the Chemical Examiner by Constable Manjit Singh (PW4). According to the statement made by him, he had taken

the sample to the office of the Chemical Examiner on 19.7.2000 and deposited the same there on 20.7.2000, but the Report (Ex.D-12) made in

the Daily Diary Register of Police Station Kotwali Bathinda reveals that the samples were handed over to Constable Manjit Singh (PW4) on

20.7.2000, which creates doubt as to whether the samples were handed over to him on 19.7.2000 or on 20.7.2000.

Further more, there is a discrepancy with regard to production of the case property by Inspector Balwinder Singh (PW2) before Inspector

Mohinder Kumar (PW3), in-charge of the police station. According to Daily Diary Register report (Ex.D-11) Inspector Balwinder Singh handed

over two bags containing 30 kg each of poppy husk to Inspector Mohinder Kumar along with two sample parcels of poppy husk, who in turn

attested the same with his seal bearing impression MK''. This report further reveals that the accused were not produced before him. This report is

contradictory with the Malkhana Register (Ex.D-10), which reveals that the bags, which had been deposited with the MHC were containing

29.750 gms of poppy husk, each. Had the MHC, with whom the case property was deposited, been examined, then he could disclose if the bags

were containing 30 kg or 29.750 kg of poppy husk. Thus, it appears that when the bags were handed over to Inspector Mohinder Kumar, then

the weight of these bags was 30 kg, each. Thereafter, the bags were tampered, samples were drawn and then the same were deposited with the

MHC and the process as stated by the Investigating Officer having been adopted by him at the spot, as per the Daily Diary Report was not

correct.

The recovery was effected on 8.7.2000, but the samples were sent to the office of the Chemical Examiner on 20.7.2000. Notwithstanding the

fact that the delay may not be fatal, however, it required some explanation as to why such delay occurred in sending the samples. Had any

explanation been furnished, the matter would have been considered in the light thereof, but in the absence of any explanation having been furnished

in this regard, the Court cannot coin on any on its own and such delay would be treated as fatal. In Gian Singh v. State of Punjab 2006 (2) RCR

(Cri.) 611, there was a delay of 14 days in sending the sample to the office of the Chemical Examiner. In those circumstances, it was held that

tampering of the sample could not be ruled out and the link evidence was missing.

In the instant case also, as it is proved that the drawing of the samples itself is doubtful. The bag containing poppy husk, produced in the Court

was proved to be having no seals. Under such circumstances, the MHC, with whom the samples had been deposited, was required to be

produced as a witness to prove that so long as samples remained in his custody, the same were not tampered with. In these circumstances, the

delay in sending the samples assumes significance.

Now, coming to the defence, it is specific case of the accused Surender Singh that he had confronted the Senior Superintendent of Police to

redeposit the amount, which he had allegedly misused to settle down a famous firing case known as ''Jethuke firing case''. Later on, the Senior

Superintendent of Police having felt annoyed that he was being questioned by his subordinates, involved him in the case. Though, he had appointed

Harbhaj Singh SP(H) to check and make corrections in the record, but he could only check and sign the cash book and did not attest the chest

Register of safe. Then, on the day of recovery i.e. 7.7.2000, the Senior Superintendent of Police appointed ASP P.K. Rai to check the record in

order to save his skin. Then P.K. Rai accompanied by other officials, forcibly took the keys from the wife of Surender Singh and made entries in

the cash book and Chest Book and made false entries ""Checked and found correct."" The accused also knocked the door of the High Court in that

regard, but on account of absence of prima facie proof of his innocence, he could not succeed and his involvement in such a case was taken very

seriously.

Nevertheless, the accused may not have been able to prove the defence, yet the prosecution was to stand on its own legs and prove the case

against the accused beyond reasonable doubt. It is that type of doubt, which convinces the mind of the Court that in all human probabilities, the

accused were not found to be in possession of the incriminating article. In this case, the accused were not arrested at the spot and they are stated

to have fled away in the presence of the heavy police force. No identification parade was conducted; the case property bearing the seal

impressions of the officers was not produced in court; the seal was not handed over to an independent witness; though, Inspector Janak Raj and

P.K. Rai, ASP were present in the raiding party, yet their seal was not used; no authentic evidence has been put forth to prove the tenancy of

accused Surender Singh over the alleged tenanted premises; it also does not appeal to the reason as to why Kaur Singh, the alleged landlord of the

house would allow the accused to use the rented portion for illegal purposes and said Kaur Singh has not supported the prosecution case. Under

these circumstances, this Court feels that the prosecution has failed to prove the case against the accused beyond reasonable doubt.

This Court is unconcerned with the past conduct of the accused or need not take notice that they were indulging in such activities or are

involved in other cases also, yet the proof of guilt is essential to penalise them for the offence, for which they were charged. The courts are

governed by the principles of natural justice and bound by the evidence before it to indict a person and in no case, the Courts are moved by the

allegations, emotion, notions, media trial, gravity of the offence, public opinion, status of the accused or other circumstances, which are remotely

connected to prove the complicity of the accused in the commission of the crime. The natural justice is that which appeals to the human conscience,

common sense and prudence and is also immune to the imaginations, surmises and conjectures.

Nevertheless, the allegations levelled by the accused against Sh.Jatinder Kumar Jain, the-then Senior Superintendent of Police, Bathinda were

found to be false during departmental enquiry, yet keeping in view that the prosecution has still to prove its case and stand on its own legs, this

Court is convinced that it has failed to do so. It may further be made clear that since the accused are acquitted while extending benefit of doubt to

them, as such the order of acquittal would not affect the order of dismissal of the accused.

Resultantly, the appeal is accepted, the impugned judgment is set aside and the accused are acquitted of the charges framed against them. They

are ordered to be set at liberty forthwith. Fine, if any deposited by them, be refunded.