RAM SINGH Vs. THE STATE OF HARYANA

JUDGEMENT

(1.) This appeal is directed against the conviction and sentence imposed by the learned ASJ Karnal in Sessions Case No 21 of 88 (Sessions Trial No. 72 of 88) dated 6.4.1989 convicting the accused-appellant for the offence u/s 18 of the NDPS Act 1985 (for short the act) and sentence him to undergo 10 years RI with a fine of Rs.1 lac.

(2.) According to the case of the prosecution on 11.12.1987 the police party consisting of PW3 and others was on patrolling duty and they found the accused coming towards the west with a handbag. On suspicion he was apprehended and ASI Dilbagh Singh PW3 offered him to be taken to the DSP Panipat for the purpose of search. But the accused declined the said offer and concentrated to be searched by PW3. As a result of the search opium of 3.5. Kgs was recovered from the person of the accused. Accordingly a ruqa was sent on the basis of which FIR was registered and after completion of the investigation charge sheet was filed against the accused. The accused pleaded not guilty for the offence u/s 18 other Act. In order to prove the guilt of the accused the prosecution examined 4 witnesses. After closure of the evidence the accused was examined u/s 313 Crimial P.C. but the accused stated that he has been falsely implicated in the case. On a consideration of the evidence on record the learned ASJ convicted the accused for the offence u/s 18 of the Act and sentenced him as stated above. Except the evidence of PW3 there is no other evidence to believe the search. The panch witnesses for the search have not supported the case of the prosecution. The evidence of PWs 1 and 2 cannot be taken into account since they have not been examined in Court. They are not formal witnesses. They have to examined in Court and submit themselves for cross examination. The provisions of Sec. 296 Crimial P.C. are not applicable to the evidence of material witnesses therefore, the affidavits tendered by PWs 3 and 4 have to be executed from consideration. After going through the evidence of PWs 3 and 4, I am of the opinion that it is unsafe to rely on their evidence in order to convict the accused. When the statute provides minimum sentence of 10 years and a fine of Ks.1 lac it is for the prosecution to place on record reliable evidence. It is not as though no witness was associated with the recovery when independent witnesses have been associated and when they have not supported the case of the prosecution. The accused can certainly take the benefit of the same. In this view of the matter I am of the opinion that the recovery of opium has not been rightly effected from the accused.

(3.) This appeal is therefore allowed. The conviction and sentence imposed upon the accused by the learned ASJ Karnal are hereby set aside and the accused-appellant is acquitted for the large. The bail bonds shall stand cancelled. Appeal Allowed.