- (1.) ONKARESHWAR Bhatt, J. This appeal is directed against judgment and order dated 3-8-1994 passed by the then Ist Addl. Sessions Judge, Saharanpur in Special Case No. 68 of 1993. The appellants have been found guilty under Sections 8/15 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the Act, and has been sentenced to ten years rigorous imprisonment. In default of payment of fine simple imprisonment for two years has been awarded.
(2.) SRI K. Ajit, learned Counsel for the appellants and the learned A. G. A. for the State have been heard. On 12-7-1992 Station Officer Hari Pal Singh of Police Station Rampur District Saharanpur was on patrol and Moharram duty alongwith Sub-Inspector Gajraj Singh, P. W. 1, Head Constable K. Prasad Singh and constables Somveer Singh and Bheem Singh P. W. 2 When they were in the town they received information that on Islam Nagar Road at the try junction of Idgah the appellants are carrying bags in their hands which contained Doda. The police party tried to procure public witnesses without success. They came near the Idgah Try Junction and the appellants were apprehended at 5. 30 a. m. at a distance of 15 paces south from the Try Junction. An offer was made that their search can be made before a Magistrate or a Gazetted Officer to which they declined. From the bags which they were carrying five kilograms each of Doda was recovered. The contraband was weighed on the scale which was brought by Constable Bheem Singh from the town. Samples were taken from both the bags and they were sealed separately. The bags were also sealed separately. A memo was prepared. The appellants could not show any licence for possession of the contraband, hence they were informed of the grounds and were arrested. On analysis the contraband was found to be Papaver Somniferum Linn. The State Officer Hari Prasad Singh has not been examined in this case. According to P. W. 1 Gajraj Singh arrest of the appellants was made at 5. 30 a. m. and information was received at 4. 45 a. m. Constable Bheem Singh P. W. 2 has corroborated Sub-Inspector Gajraj Singh regarding the time of arrest of the appellant to be 5. 30 a. m. However, in his statement under Section 161 Cr. P. C. he has stated that the arrest of the appellants was made at 6. 30 a. m. He has further stated that the place where the appellants were arrested is at a distance of 1/2 furlong from the place where information was received and that it took about five or seven minutes to reach the place of occurrence. Constable Bheem Singh cannot name the Mohallas in which they were doing patrol duty. According to P. W. 1 Sub- Inspector Gajraj Singh the appellants were apprehended at 5. 30 a. m. while according to constable Bheem Singh the appellants were arrested at 6. 30 a. m. as has been stated by him under Section 161 Cr. P. C. Sub-Inspector Virendra Singh P. W. 3, Investigating Officer, has stated that Bheem Singh had told that the appellants were arrested at 6. 30 a. m. If the statement of P. W. 1 Gajraj Singh is to be believed that the information was received at 4. 45 a. m. and five to seven minutes were required to reach the place of occurrence the time of arrest, either it is taken to be 5. 30 or 6. 30 a. m. does not fit in the prosecution version. It has come in the evidence that contraband was sealed by Constable Somveer on the spot. According to the prosecution case the sample of contraband was sealed separately. The Public Analyst has mentioned that the sample received by him bore the monogram S. N. Sharma S. I. UPP. ' Sub-Inspector Virendra Singh P. W. 3 has stated that he had not taken the articles before the Judge Sahab. Sub- Inspector S. N. Sharma was admittedly not in the police party, who had seized the contraband from possession of the appellants. Sub-Inspector Virendra Singh did not take the contraband to the Court of Judge Sahab. How the sample of the contraband bore the seal of S. N. Sharma S. I. UPP' is not clear. Report of the Public Analyst shows that samples of the contraband were sent on 21-7-1992 and were received by the Public Analyst on 27-7-1992. There is absolutely no evidence on record to show as to where the samples were kept from 12-7-1992 to 21-7- 1992 and as to who took it to the Sessions Court and who carried it to the Public Analyst. That apart, according to the prosecution case the sample was taken from both the bags which each of the appellants were alleged to be carrying. From the evidence on record it is not clear that sample of which of two bags was sent for analysis. The report of the Public Analyst shows that Doda powder was about 80 Grams. The evidence is silent whether 80 Grams were taken from one bag or the other bag because there is nothing in the evidence on record. Link evidence in this case is not complete which could prove that the sample of which of the two bags alleged to have been seized was sent for analysis.
(3.) IN view of the above facts and also the inconsistencies about time of arrest, the entire recovery of the contraband alleged to have been made from possession of the appellants becomes suspect which renders the arrest, search and seizure of the contraband from possession of the appellants on the date and time alleged by the prosecution to be doubtful. The case is not free from doubt and the appellants are entitled for the benefits of doubt and acquittal. The appeal is allowed. The order of conviction and sentence of the appellants are set aside. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged. Appeal allowed. .;