- (1.) S. R. Bhargava, J. Lower Appellate Court believed the prosecution story that on 15-5-1985 at about 7. 30 p. m. near the culvert of village Ghura, Police Station Tindwari, a police party headed by Sub-Inspector Anil Kumar Singh and consisting of constables Ghanaram, Ram Charan and Krishna Behari apprehended revisionst Rama Shankar and on his search recovered 3 kilogran s of Ganja and 250 grams of opium. Ganja was sealed in a separate bundle of a cloth while opium was sealed in a packet. It is said that the Police patty took the bundles and the packet along with revisionist to the Police Station and prepared recovery memo. At the Police Station first information report was recorded in terms of recovery memo. After investigation the revisionist was charge sheeted for offences under Section 60 of the Excise Act and Section 9 of the Opium Act.
(2.) LEARNED Magistrate charged the revisionist with offences under Section 60 of the Excise Act and Section 9 of the Opium Act. Leader of the police party namely Sub-Inspector Anil Kumar Singh did not come in the witness box. Even warrant went waste. Constables Ghanaram and Ram Charan P. W. 1 and P. W. 3 proved recovery. Ram Charan inter alia deposed that he took the sealed bundles and the packet to Chemical Examiner, Agra. But it is very patent from his testimony that he did not say that at the Police Station or the Malkhana or during transit the bundles and the packet remain ed safe. In his cross- examination, Ram Charan, it was found that he did not sign the sealed bundle. Chemical Examiner submitted positive reports of Ganja and opium. Learned Magistrate believed the prosecution story and sentenced the revisionist to rigorous imprisonmedt for six months under both the Counts. Learned lower appellate Court noted the defects that the bundle was not signed by the witnesses. He emphasised the fact that the place and time of recovery were such that there could be no public witness. But when even the constables did not sign the bundle and packet alleged to have been sealed at the spot, the lower appellate Court had to observe that there was violation of the Excise Rules. Learned lower appellate Court did not pay attention to the fact that testimony of Ram Charan, PW 3 cannot be adequate evidence of safety of the bundle and the packet. In other words there was no link evidence. As stated earlier the learned lower appellate Court believed the prosecution story, maintained conviction of the revisionist, but reduced the sentences of the revisionist to simple imprisonment for three months.
(3.) IT is urged, on behalf of the revisionist that there are basic infirmi ties in the prosecution evidence. The architect of the story, namely, the head of the police party did not come in the witness box. There may be testimony of two police witnesses, yet both of them interested in the case of the prosecu tion story their testimony could be countsd as one and on their testimony conviction cannot be based unless their testimony is unblameshed or in other words wholly reliable. IT has been further argued that the expert's reports have no significance in the case because link evidence was not adduced. Having heard the learned counsel for the parties, I am of the opinion that due to basic legal infirmities the prosecution story could not be believed. The architect of the story did not come in the witness box. Omission of signatures of the witnesses on the bundle and the packet contravene the rules framed under the Excise Act. There is no explanation for the same. Link evidence about the safe custody of the bundles and the packet was not adduced. I hold that in fact of these legal infirmities, recovery of Ganja and opium from the revisionist could not be established beyond reasonable doubt. He is entitled to benefit of doubt. Hence the revision must succeed. The revision is allowed. Convic tion and sentences of the revisionist jare set aside. He is on bail. His bail bonds are cancelled and sureties are discharged. He need not surrender. Revision allowed. .;