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JITENDRA CHAUHAN, J. –

1. The present criminal appeals have been preferred by the appellants challenging the judgment and order dated 13/14.06.2008, passed by the learned Additional Sessions Judge, Hisar, (hereinafter as 'the trial Court'), convicting the accused (herein appellants) for committing offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (for short, 'the Act') of the Indian Penal Code, (for short, 'the IPC') and sentencing them to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- each and in default thereof, to further undergo rigorous imprisonment for a period of 03 years.

2. The brief facts of the case in hand, as recorded by the learned trial Court in para 2 of the impugned judgment, are reproduced as under:-

“2. The prosecution case in brief, is this that on 12.8.2007 Sub Inspector Raj Singh along with other police officials was present at canal bridge, in the area of village Bithmara, in connection with patrolling duty and crime detection. In the meantime, a Maruti Car bearing No.CHR-4182 was seen coming and on seeing the police ahead the driver of that Car tried to turn back towards Surewala Chowk, but the persons present in the car were apprehended by the Sub Inspector with the help of other police officials and asked their whereabouts, the driver of the Car told his name as Satpal @ Satta son of Ram Dhari, resident of Bithmara and the other person who was present at back seat told his name Ram Chander son of Nand Ram, resident of Prem Nagar, Narwana. On checking the said car two bags were found. Expressing doubt of some narcotic substance in the bags Sub Inspector Raj Singh served notice Ex.P5 upon accused under Section 50 of NDPS Act apprising their rights to get the bags searched in the presence of Gazetted Officer or Magistrate. The accused vide their reply Ex.P6 reposed their confidence in SI Raj Singh and allowed him to take the search. SI Raj Singh checked the bags and on checking Chura post was found. Two samples of 200 Gms. each of poppy husk were separated from both the bags and remaining poppy husk was found to be 39.600 Kg. in each bag. The samples as well as remainder were made into different parcels and were sealed with seal of RS impression and were taken into possession of police vide separate seizure memo Ex.P7. The seal after use was hended over to HC Daya Nand. Thereafter SI Raj Singh sent ruqqa Ex.P1 to Police Station for registration of case on the basis of which formal FIR Ex.P2, was recorded........”

3. Charges under Section 15 of the Act were framed against the accused-appellants to which, they pleaded not guilty and claimed trial.

4. In order to substantiate the charges against the accused, the prosecution examined as many as six witnesses, viz., ASI Ramesh Chander as PW1; Constable Balraj as PW2; HC Daya Nand as PW3; Hawa Singh Sub Inspector as PW4; SI Raj Singh as PW5; HC Amar Singh as PW6.

5. In their statements under Section 313 Cr.P.C., both the accused-appellants denied all the allegations of the prosecution case and pleaded false implication in the case.

6. The learned trial Court, after hearing both the parties, convicted and sentenced the accused-appellants, as indicated in para 1 of this judgment. Hence, the present appeals were preferred, which were admitted by this Court vide order dated 13.08.2008 and 04.09.2008, respectively.

7. The learned counsel for the appellants submit that there is an unexplained delay in sending the samples to the FSL. The recovery was effected on 12.08.2007, whereas the sample was sent to the FSL on 27.08.2007, as is evident from the statement of PW6, H.C. Amar Singh. The learned counsel contend that as per the standing instructions No.1/88 dated 15.03.1988, issued by the Narcotic Control Bureau, the sample must be dispatched to the laboratory within 72 hours of the seizure. Therefore, no cognizance can be taken of the samples sent for examination.

8. The learned counsel further submit that as per the case of the prosecution, appellant-Satpal was driving the car whereas the other occupant, appellant-Ram Chander was sitting on the rear seat. The name of the owner of the vehicle in question has not surfaced on record, neither it has come as to how the appellants came into possession thereof, which goes to prove that the appellants have been falsely implicated in the present FIR.

9. It is next contended that no independent witness was joined despite the fact that the recovery was effected from the public place. The learned counsel refers to the site-plan, Ex.P16, and states that the place of recovery is in the vicinity of the village, therefore, non-joining of independent witness casts doubt on the veracity of the version put forth by the prosecution.

10. The learned counsel further contend that the conscious possession of the contraband is not proved and there are material contradictions in the statements of PW1 and PW5. Furthermore, the alleged recovery is of non-commercial quantity.

11. On the other hand, the learned counsel appearing from the State contends that the raiding team made an effort to join independent witness but no person came forward to join the investigation. The recovery of two bags of poppy husk weighing 40 Kgs. each was effected from the vehicle. He prays for dismissal of the present appeals and supports the impugned judgment/order passed by the learned trial Court.

12. I have heard the learned counsel for the parties and perused the record.

13. The alleged recovery was effected on 12.08.2007. From the testimony of PW6, HC Amar Singh, it emerges that the samples were sent on 27.08.2007 to the FSL. Though, the seal was intact but there is no explanation as to why the samples were not sent within the stipulated period of 72 hours as prescribed in the standing instructions issued by the Narcotics Control Bureau. The samples were directly sent to the FSL without obtaining orders from the Court as mandated by Section 52A of the Act. Therefore, an adverse inference has to be drawn against the prosecution.

14. Surprisingly, the owner of the vehicle, one Ranvir Kaur, was neither involved at any stage of investigation, nor was summoned by the prosecution to verify as to how the vehicle in question came into the possession of the appellants. The prosecution has not given any plausible reason as to why the owner of the vehicle was not summoned.

15. The recovery was allegedly effected at canal bridge, Bithmara, which is admittedly a public place. In spite of that, no independent witness was joined. The prosecution has rendered an explanation that nobody came forward but no statement in this regard was recorded. Therefore, the version put forth by the prosecution does not inspire confidence.

16. As per the FIR, the recovery was effected from the car being driven by appellant No.1 Satpal, whereas appellant No.2 Ram Chander was sitting on the rear seat and one bag each was lying on the front as well as the rear seat. However, PW5, SI Raj Singh, has categorically stated before the Court that both the appellants were sitting on the front seats. In the opinion of this Court, this is a material contradiction which goes to falsify the case of the prosecution.

17. The appellants also examined DW1, Shishpal, who has stated that the appellant, Satpal was taken away by the Police from his house.

18. Keeping in view the totality of the circumstances, this Court is of the considered opinion that the prosecution has failed to prove its case in the manner projected by it beyond reasonable doubt. Accordingly, the present appeals are allowed; and the judgment of conviction and order of sentence dated 13/14.06.2008, are set aside and they are acquitted of the charges framed against them by giving both of them the benefit of doubt. The appellant-Satpal, who is stated to be in custody, be set at liberty forthwith if not required in any other case. The appellant, Ram Chander, is stated to be on bail. His bail bonds shall stand discharged.

Appeal allowed.

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