(1.) THIS Criminal Appeal arises out of a judgment dated 5.12.2003 passed by learned Additional Sessions Judge, Sirsa, in Sessions Case No. 23 NDPS of 2003, holding the accused-appellants guilty of offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act'), and sentencing them to undergo RI for eight years with a fine of Rs. 80,000/- each, for having been found in illegal possession of 2 kgs. of opium milk, contained in a polythene bag. In default of payment of fine, the accused-appellants were directed to further undergo RI for two years.
(2.) BRIEF facts of the case, giving rise to the present criminal appeal are that on 12.12.2002, Assistant Sub Inspector of Police of CIA Staff, Dabwali, Mahabir Singh, receiving a secret information that the accused-appellants are in illegal possession of opium milk for sale. ASI Mahabir Singh along with other police officials, proceeded towards village Dabwali from Bathinda Chowk, Dabwali. When he reached near the drainage bridge, both the accused were seen coming towards that side riding a bicycle. Accused Sohan Lal was driving the bicycle, whereas, co-accused Prem was sitting on the back seat of the bicycle. Having seen the police party, both the accused-appellants tried to hide themselves by going towards kikkar trees. They were overpowered by the police. They were served with the notices offering as to whether they wanted to be searched before a Magistrate or a Gazetted Officer. Both the accused- appellants expressed their desire to be searched before a Gazetted Officer. Thereupon, DSP Chander Singh of Dabwali was called to the spot. The accused were searched in his presence and were found in possession of 2 kgs. of opium milk, contained in a polythene bag. Two samples of 10 grams each were taken from the said opium milk. The samples as well as the remainder quantity of the opium milk and the bicycle of the accused-appellants were seized vide recovery memo (Ex. PA). Statements of witnesses were recorded under Section 161 Cr.P.C. The case property and the samples were deposited by ASI Mahabir Singh with the Moharrir Head Constable of Police Station, Dabwali. The accused-appellants were lodged in police lock up. After completion of investigation, a challan was put up against the accused-appellants under Sections 17/18 of the Act and they were charge-sheeted, accordingly.
(3.) ACCORDING to learned counsel, despite availability of independent witness, no one was associated with the recovery. Learned counsel referred to the testimonies of DSP Chander Singh (PW-1), Head Constable Satbir Singh (PW-2) and ASI Mahabir Singh (PW-3), to substantiate this point. According to learned counsel it was not a case of chance recovery but a case of prior information, therefore, association of an independent witness was necessary. Learned counsel further submitted that the seal of the I.O. remained with the police, which created a suspicion about the credibility of the prosecution case. Learned counsel further submitted that initially, there were some defects in the sample, therefore, it was returned by the FSL. That apart, the sample was initially sent in a match box but later on, it was sent in a plastic packet. Learned counsel further submitted that the recovery was effected from Prem Singh and Sohan Lal was only driving the cycle. Thus, the latter was not in conscious possession of the contraband. That apart, learned counsel also submitted that it is a case of non-commercial quantity.