Sunil Kumar Garg, J. - (1.) This appeal has been preferred by the accused appellant against the judgment and order dated 8.7.1996 passed by the learned Special Judge (Sessions Judge), NDPS Cases, Hanumangarh in Sessions Case No. (7/93), 25/94 by which he acquitted accused Satpal, Darshan, Paliram and Asha of the charges for the offence under Section 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Narcotic Drugs And Psychotropic Substances Act') and also acquitted accused Smt. Neelam and Kanta of the charges for the offence under section 8/18 of the Narcotic Drugs And Psychotropic Substances Act, but convicted the present accused appellant for the offence under section 8/18 of the Narcotic Drugs And Psychotropic Substances Act and sentenced him to undergo ten years' rigorous imprisonment and to pay fine of Rs. one lac, in default of payment of fine, to further undergo SI for six months.
(2.) It arises in the following circumstances : On 2.4.1993 at about 1.15 PM, P.W.8 Richhpal Singh, CI, Police Station Sangaria District Sri Ganganagar lodged a report with the Police Station Sangaria District Sri Ganganagar stating inter-alia that on 2.4.1993 at about 8.20 AM, he received a secret information from mukhbir to the effect that Madan (present accused appellant), is resident of Gurunanak Basti and he alongwith his relative Paliram, another accused dealt with contraband opium in his house and on that day after sometime, accused Darshan would go to his house alongwith contraband opium and alongwith him, there would be male and female members. That information was reduced into writing by P.W.8 Richhpal Singh and the same is Ex.P.38. Thereafter, at about 8.30 AM, P.W.8 Richhpal Singh alongwith other police officials including Raghuveer Singh, Lal Singh, Rajendra Singh, Gopal Ram, Bishan Singh, Hanumansahai and Jagdev Singh proceeded in a Government Jeep towards the place mentioned by the mukhbir and they stopped the Jeep near Vitan Vihar and took two motbirs, namely, P.W.1 Devilal and P.W.2 Jagdish and they reached Udham Singh Chowk at about 9.00 AM and at about 9.30 AM, a private jeep without numbers came there and from which two male members and one lady came out and they all proceeded towards Gurunanak Basti and out of these two male members, one, who was fatty, was having a green colour bag, which was handed over by him to the lady and all three persons entered the house of Madan (present accused appellant) situated in Gurunanak Basti and closed the door of the house and, thereafter, at about 9.50 AM, the house of the accused appellant was peeped by P.W.8 Richhpal Singh and other witnesses and they saw that the bag, which was given by fatty man to lady, was again returned to fatty man by that lady and the accused appellant was having a Taraju alongwith batts and, thereafter, one bag was taken out from that green colour bag by fatty man and started weighing and assessing that it was nothing but contraband opium. P.W.8 Richhpal and others entered the house and the person, who was having Taraju, on being asked, told his name as Madan (accused appellant) and others told their names as Darshan, Satpal, Paliram and Asha. Thereafter, all accused persons were given notice and under section 50 of the Narcotic Drugs And Psychotropic Substances Act by P.W.8 Richhpal Singh asking them whether they wanted to be searched before the Magistrate or the Gazetted Officer, upon which they gave their consent that their search could be made by PW.8 Richhpal. The notice under section 50 of the Narcotic Drugs And Psychotropic Substances Act, which was given to the accused appellant is Ex.P.3. Thereafter search was made by P.W.8. Richhpal and on search, from Taraju, which was being held by accused appellant contraband opium was recovered and he was having no valid license to keep that opium and it was weighed and its weight was found to be 1 kg out of which, two samples of 30 gms. each were taken for the purpose of chemical examination and they were sealed on the spot and marked as A and B and rest opium was also sealed on the spot and marked as C. The card of search and seizure, which was prepared by P.W.8 Richhpal Singh on the spot, is Ex.P.13. All accused persons were arrested by P.W.8 Richhpal Singh. The FIR, which was lodged by P.W.8 Richhpal Singh, is Ex.P.41. The information which was sent to superior officer by P.W.8 Richhpal Singh is Ex.P.40. The copy of Rojnamcha is Ex.P.44 After search, information was sent by P.W.8 Richhpal Singh to superior officer and the same is Ex.P.42. Thereafter, samples and articles seized were given to P.W.5 Anirudhra Kumar Malkhana Incharge, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P.33. Thereafter, vide letter dated 28.4.1993 Ex.P.36, sample was sent to FSL for chemical analysis through P.W.7 Balwant Rai. The receipt of depositing the sample in the FSL is Ex.P.37, which is dated 3.5.1993. The report of the FSL is Ex.P.49, which shows that sample gave positive tests for the chief constituents of the coagulated juice of opium poppy having 3.27% (Three point two seven percent) morphine. The other aspect of the prosecution case is that after search of the accused persons, on the information of accused Darshan, opium was recovered from the house of Deshraj and his wife Neelam. After usual investigation, challan was submitted against seven accused in the Court of Session. On 6.10.1999 the learned Special Judge, NDPS Cases, Sri Ganganagar framed charges for the offence under sections 27A and 29 of the Narcotic Drugs And Psychotropic Substances Act against accused Satpal, Darshan, Paliram and Asha and under section 8/18 of the Narcotic Drugs And Psychotropic Substances Act against accused Neelam, Kanta and Madan (present accused appellant). The charges were read over and explained to the accused persons, who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 11 witnesses and got exhibited some documents. Thereafter, statements of the accused persons under section 313 Criminal Procedure Code were recorded. In defence, ten witnesses were produced by the accused. After conclusion of trial, the learned Special Judge, NDPS Cases, Hanumangarh through his judgment and order dated 8.7.1996 acquitted the accused Satpal, Darshan, Paliram, Asha, Neelam and Kanta of the charges framed against them, but convicted the present accused appellant of the charge for the offence under section 8/18 of the Narcotic Drugs And Psychotropic Substances Act and sentenced him in the manner as indicated above holding inter-alia : 1. That prosecution has been able to prove its case beyond all reasonable doubts for the offence under section 8/18 of the Narcotic Drugs And Psychotropic Substances Act only against accused appellant Madan. 2. That prosecution has not been able to prove its case beyond all reasonable doubts against other accused and thus, they were acquitted holding that opium was recovered from accused Neelam and Kanta and samples were taken, but prosecution has not been able to establish where these samples remained and thus, link evidence was not found satisfactory. Aggrieved from the said judgment and order dated 8.7.1996 passed by the learned Special Judge, NDPS Cases, Hanumangarh this appeal has been filed by the accused appellant.
(3.) In this appeal, the following submissions have been made by the learned counsel for the accused appellant : 1. That conviction and sentence of the present accused appellant are absolutely wrong, inasmuch as, on the same set of prosecution witnesses, six other accused persons have been acquitted by the learned Special Judge and thus, learned Special Judge has committed a mistake in convicting the accused appellant alone. 2. That there is no evidence to show that samples and articles recovered from the accused appellant on 2.4.1993 remained intact from the date of seizure till they reached FSL and they were not tampered with. On this point, it was also argued that as per Malkhana Register Ex P.33 sample was given to P.W.7 Balwant Rai on 30.4.1993 by P.W.5 Anirudhra Kumar, but as per the letter of the FSL Ex.P.37, it was brought by P.W.7 Balwant Rai on 28.4.1993. Thus, when the sample was given to P.W.7 Balwant Rai on 30.4.1993 by P.W.5 Anirudhra Kumar, how it can be despatched on 28.4.1993. Thus, from this point of view also, case of the prosecution that samples from the date of depositing in Malkhana and upto sending it to FSL remained intact becomes doubtful and the accused appellant is entitled to benefit of doubt. 3. That, so-called articles and sample recovered from the accused appellant were not produced in the Court and this fact itself is sufficient to acquit the accused appellant. 4. That both motbir witnesses, namely, P.W.1 Devilal and P.W.2 Jagdish have been declared hostile and normally mere declaring them hostile does not affect the case of the prosecution, but in the present case, looking to all the facts and circumstances, this fact also leads to only one conclusion that prosecution has not been able to prove its case beyond all reasonable doubts. Hence, it is prayed that this appeal be allowed and the accused appellant be acquitted of the charge framed against him.;