BUDH RAM Vs. STATE OF PUNJAB

JUDGEMENT

(1.) ACCUSED -Budh Ram has filed this appeal against the judgment of conviction and order of sentence dated 7.8.2002 whereby he has been convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the NDPS Act') and sentenced to undergo rigorous imprisonment for 10 years along with fine of Rs. 1 lac and in default of payment of fine to further undergo rigorous imprisonment for 6 months.

(2.) AS per prosecution story, on 17.9.1998 a police party comprising SI -Samman Singh, HC -Malkiat Singh and others were on patrol duty and going towards Village Innakhera in a Government gypsy. On the way they joined Dalbir Singh, Ex -Member Panchayat at Village Innakhera. When they reached the canal minor bridge in the area of Village Innakhera, the accused was seen coming from the front side carrying a bag in his right hand. On suspicion, he was apprehended. SI -Samman Singh told the accused that police party wanted to conduct his search as he was suspected to be carrying some contraband. An option was given to him that he could get his search conducted before a Magistrate or a Gazetted Officer. The accused opted for the search to be conducted in the presence of a Gazetted Officer. Consent Memo, Exhibit -PF, bearing thumb - impression of the accused was prepared to that effect. Thereafter, wireless message was sent to Shri Sajjan Singh Cheema, Deputy Superintendent of Police, Malour, whereupon he reached the spot and disclosed his identity to the accused. Personal search of the accused was conducted in the presence of Deputy Superintendent of Police, which led to recovery of contraband article weighing 3 kgs. 800 grams. A sample of 50 grams was separated from the seized contraband. The sample and the residue contraband were sealed with the seals superscripting 'SS' and 'SSC' of SI -Samman Singh and DSP -Sajjan Singh Cheema, respectively, and taken into possession vide Recovery Memo, Exhibit -PC. Rough site plan, Exhibit -PH of the place of recovery and Redressal search Memo; Exhibit -PD were also prepared. Ruqa Exhibit -PG was sent to the concerned Police Station on the basis of which formal FIR, Exhibit -PG/I was registered under Section 18 of the NDPS Act. The accused was formally arrested and a Memo. Exhibit -PE containing the grounds of his arrest was prepared. On reaching police station, the case property was retained by the Investigating Officer. On the next day he produced the case property and the accused before the SDJM, Malout along with an application. Exhibit -PJ, for orders regarding custody of the accused. Vide order, Exhibit -PJ/I passed by SDJM, Malour, the case property was deposited with MHC. Harinder Singh with seals intact Sample was sent to Chemical Examiner for analysis who vide report, Exhibit -PK opined the contents of the seized contraband to be that of opium.

(3.) LEARNED defence counsel argued that the prosecution has miserably failed to prove the link evidence connecting the Appellant with the seized contraband. It is argued that it is not proved on record that seal of the sample remained untampered with throughout. According to Investigating Officer Saman Singh the seal after use was handed over to Dalbir Singh, the alleged independent witness. However, said Dalbir Singh has not been produced as a witness. It is argued that the prosecution has intentionally withheld said Dalbir Singh as he would not have supported its case. Another circumstance pointed out by the learned for the Appellant is that Central prosecution has failed to prove that General Forensic Science Laboratory Form containing specimen seal was duly filled at the spot at the time of alleged seizure of contraband and further that the sample remained untampered with till it reached the office of Chemical Examiner. It is argued that there is not even an iota of evidence as to where the CFSL Form containing specimen seal remained till the sample of the contraband was examined by the Chemical Examiner and, therefore, this vital link between the contraband seized and the report of the Chemical Examiner is missing, which creates a serious doubt in the prosecution case. In support, learned Counsel referred to a Delhi High Court judgment reported as Mohd. Hashim v. State,, 2000 (1) RCR (Cri) 235.