A.D.Koshal, J. - (1.) This is an appeal by the State of Punjab against the judgment dated the 28th of Oct., 1970, of Shri G.D. Hans, Judicial Magistrate 1st Class, Sunam, acquitting the respondent of a charge under section 9 of the Opium Act.
(2.) According to the prosecution, one kilogram of a substance, a sample from which was latter on found by the Chemical Examiner to be opium, was recovered from a bag which the respondent was carrying when he was apprehended on the 3rd of Feb., 1970, by Sub-Inspector Randhir Singh of Police Station, Lehragaga (P.W. 3) in the presence of Boota Singh, Lambardar (P.W. 1) and Balkar Singh (P.W. 2). The acquittal was based mainly on some discrepancies appearing in the prosecution evidence and certain other factors which the learned Magistrate regarded as rendering the prosecution case improbable.
(3.) After hearing learned counsel for the parties, we do not find ourselves in agreement with the view of the learned Magistrate in so far as the appreciation of the evidence recorded in the case is concerned. Nevertheless we further find that the acquittal must be maintained on another ground, i.e., that the sample which was found on analysis by the Chemical Examiner to be opium has not been shown to pertain to the article recovered from the respondent. It is no doubt true that according to the affidavits filed by Mit Singh, Moharrir Head Constable, and Amrik Singh, Constable attached to Police Station Lehragaga, the former received two parcels containing opium "of this case" on the 3rd of Feb., 1970, and one of those parcels was delivered by Amrik Singh Constable at the office of the Chemical Examiner, Patiala on the 6th of Feb., 1970. Besides, the Sub-Inspector stated in the witness-box that after the contraband was recovered from the respondent, it was weighed and sealed into two separate parcels, one of which contained a sample weighing 25 grams. However, the prosecution evidence is silent as to what happened to the sample after it had been sealed and till it reached the Moharrir Head Constable. Nor has it been disclosed as to who was the person who carried the sample to the police station. It was the duty of the prosecution to complete all the links in the chain of evidence showing how the sample was dealt with from the time it was sealed by the Sub-Inspector up to that when it was analysed. By reason of the missing link it cannot be said with any certainty that the sample delivered at the office of the Chemical Examiner was the same as had been separated by the Sub-Inspector from the bulk of the contraband. Consequently, it is not possible to hold that the prosecution has proved the article recovered from the respondent to be opium.;