ASHWANI KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) These are two appeals which are decided by the common order as both have arisen from the same FIR and the common judgment. These appeals have been filed against the conviction of the appellants under Section 15 of the N.D.P.S. Act ordered by the Ld. Special Judge, Patiala vide judgment dated 05.07.2003 in case FIR No.691 dated 16.12.2001 registered at P.S. Samana under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985.

(2.) The case of the prosecution was that on 16.12.2001 ASI Balwant Singh happened to be present at the Bus Stop of Village Badanpur where he was talking to one Nirmal Singh. At that time both the appellants were driving Maruti Car No.DDB 3848 and on seeing ASI Balwant Singh they tried to run away but were apprehended. Thereafter on search of the Car five gunny bags were found which contained poppy husk. After necessary formalities the appellants were sent for trial and ultimately found guilty and convicted. Hence the present appeal.

(3.) The thrust of the argument of learned counsel for the appellants is that in the present case the seizure has not been proved. As per him, the police did not make any efforts to link the accused with the said Maruti Car. It was not shown that either of the accused was the owner of the car or indeed who was the owner of the car. Secondly, the independent witness Nirmal Singh appeared as DW1 and stated that he had a shop near Bus Stand of Village Badanpur and no recovery had been made in his presence and he signed the recovery memo and other documents on the asking of the Police. Learned counsel for the appellants has further argued that as per the prosecution story DSP Satbir Singh Atwal had also arrived at the spot. As per the learned counsel, even though this was not a case under Section 50 of the N.D.P.S. Act yet it was incumbent upon the prosecution to have examined the said DSP who would have at least asserted that the facts as mentioned above had indeed taken place but the said DSP also did not appear in testimony. As per the learned counsel, these facts cumulatively throw a reasonable doubt on the recovery and the seizure. Learned counsel for the appellants has further argued that it has come in evidence that the first sample was not returned by the FSL and then another sample had to be sent and the prosecution had not explained as to what was the objection and how it was overcome.