- (1.) THE appellant was convicted for the offence under S.18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for carrying and keeping in his conscious possession 6.510 kg opium without any permit or licence and was sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs 1 lakh and in default, to further undergo rigorous imprisonment for one year. The judgment and order of the learned Additional Sessions Judge was challenged in appeal. The High Court, by the impugned judgment, has maintained conviction and sentence, except that the sentence in default of fine has been reduced from one year to six months.
(2.) IN this appeal challenging the impugned judgment, the learned counsel contends that the linkage evidence has not been adduced by the prosecution and resultantly, the prosecution has failed to bring home the charge against the appellant. The case of the prosecution in brief is that the appellant was apprehended on 27-8-1993 and opium of the quantity aforesaid was recovered from the box in his scooter, the same having been lying in a bag in the said box. After completion of formalities 10 gm of opium was taken out as sample and the remaining quantity of 6.500 kg was put in a bag and made a parcel; it was sealed and after the seal had been put, the same was handed over to ASI Swaran Singh. The independent witness of recovery Jagrup Singh was not examined for having been won over by the appellant. He was examined by the appellant as a defence witness as DW 1. We have perused the testimony of SI Barjinder Singh, SHO of the police station concerned who was examined by the prosecution as PW 1. His statement shows that on the next date after the recovery, the case property and the accused were produced before the Magistrate concerned by ASI Swaran Singh. The learned Magistrate directed ASI Swaran Singh to deposit the opium parcel, Ext. P - 2 in the judicial malkhana. The order of the Magistrate is Ext. PG - 1. The case property was, however, not deposited in the judicial malkhana but was deposited in the police malkhana. According to PW 1 that was on account of lack of sufficient space in the judicial malkhana and on that count ASI Swaran Singh deposited the opium parcel Ext. P2 in the police malkhana. According to PW 1 the case property and the seal thereupon remained intact in the police custody. Admittedly, ASI Swaran Singh has not been examined by the prosecution. The seal after use, according to the testimony of PW 2, remained with ASI Swaran Singh from 3.45 p.m. and was returned the next day at about 8/9 a.m. Further, no evidence had been produced about the lack of space to keep Ext. P2 in the judicial malkhana. No order or endorsement of the judicial malkhana has been produced. It is also not the case of the prosecution that the Magistrate concerned was approached on finding that there was no space in the judicial malkhana to keep Ext. P2 therein in terms of the order of the Magistrate Ext. PG - 1. Under these circumstances, the learned counsel is right in contending that there is a reasonable doubt about tampering of the case property or at least reasonable likelihood of the tampering, particularly keeping in view the fact that the case property and the seal both remained in the custody of the police despite order to the contrary in respect of the case property by the Magistrate. It has further been pointed out that the sample that had been taken out was of 10 gm whereas the weights which were available as per the testimony of PW 1 were of 2 kg, 1 kg, 500 gm and 200 gm.
(3.) THE appellant is entitled to benefit of doubt in the absence of the linkage evidence. Having regard to the aforesaid circumstances, we are of the view that the prosecution has failed to bring home the charge against the appellant beyond reasonable doubt. We are unable to sustain the conviction of the appellant. Accordingly, the impugned judgment is set aside and appeal allowed. The appellant shall be set free, if not required in any other case.;