GULAM Vs. STATE

JUDGEMENT

(1.) On secret information being received by Sub Inspector 0m Prakash that a person who is in possession of Charas would be coming from the Railway Station side towards Chandni Chowk, S.I. Shri 0m Prakash organised a raiding party consisting of Constable Kaushal Singh and Manmohan. They were on patroling duty in the area near Jubilee Cinema alongwith A.S.I. Sharan Chand on 17th September,1988. Mr.Suresh Kumar an independent person was also made member of the raiding party. Nakabandi was made near Jubilee Cinema. On the pointing of informer, the appellant was stopped. He was asked whether he would like to be searched before the Gazetted Officer or a Magistrate. Notice under Section 50 of the Act was served on him, but he declined to get searched before either. Thereafter the formalities were completed namely sending of Rukka, weighing the smack and then converting it into the Pulandas, separating the smack for the purpose of sample and sealing the same. CFSL form was filled up and fascimel of the seal was affixed on it. The case property alongwith sample were deposited with Moharar Malkhana. Thereafter sample was taken by Constable Dalbir Singh to the office of CFSL. On the report being received the challan was filed.

(2.) Six witnesses were examained by the prosecution. After analysing their testimonies, the learned Trial Court by the impugned order dated 8th April,1994 convicted and sentenced the appellant to undergo rigorous imprisonment for ten years with fine of Rs.l lakh in default of payment, to undergo further simple imprisonment for two years.

(3.) The impugned order has been assailed primarily on the ground that Constable Kaushal Singh and independent witness Suresh Kumar have not been examined. Constable Kaushal Singh was the one who was alleged to have been sent to call the S.H.O. and took the Rukka to police station for registration of FIR.. Constable Man Mohan as per prosecution story brought the scale and weighed. But he appearing as PW-4 stated that he did not know anything about this case. He was neither declared hostile nor cross examined by the prosecutor. CFSL form was stated to have been sent through Costable Dalbir Singh. However, Dalbir Singh appearing as PW-2 no where stated that he took the CFSL form alongwith the sample and deposited in the office of CFSL. Similarly, Head Constable Kallan Khan PW-1 who was Moharar Malkhana at the relevant time on 17th September, 1988 no where stated that CFSL form was deposited with him alongwith sample or that the CFSL form was handed over to Dalbir Singh alongwith the sample for deposit in the office of CFSL. This shows that there is a missing link in the evidence of the prosecution which casts doubt about the sample being tampered with as long it remained in the custody of the respondent. Beside the missing link there are material contradictions in the testimony of Investigating Officer and the S.H.O. Moreover, partial offer was given as per the testimony of witnesses, hence there is a non- compliance of the statutory provisions of the Act. On the basis of these contentions, Mr.Mukesh Kalia, appearing as amicus curiae for the appellant contended that the appellant is liable to be acquitted.