JUGAL KISHORE Vs. STATE OF PUNJAB

JUDGEMENT

(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.

(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.