HARCHARAN SINGH ALIAS CHARNI Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS appeal is directed against the conviction and sentence imposed by the learned ASJ Sangrur in Sessions Case No. 94 of 88 (59 of 89) dated 7.12.89 whereby the accused-appellant has convicted for the offence under Section 15 of the NDPS Act.

(2.) ACCORDING to the case of the prosecution on 17.1.88 SI CIA was on patrolling duty from Bahadar Singh Wala towards village Bygran and at that time he was also accompanied by SI Amar Nath, ASI Virinder Singh and other police officials. When they reached near the fields of the village through the revenue limits of village Rajomajra they saw 2 persons sitting on the heaps of bags behind eucalyptus trees and one of the said persons ran away which aroused the suspicion. Then the police apprehended the accused-appellant who was still sitting over the heap of bags. Then SI enquired from him whether he wanted to be searched by some Gazetted Officer or Magistrate on which the accused deposed confidence in him and thereupon SI made a personal search of the accused but nothing was recovered. Thereafter, the bags numbering 10 were searched and these were found containing 35 kgs of poppy husk and gattu was found to contain 10 kgs. Then SI took samples from the bags and sealed the same. Thereafter FIR was registered and on completion of the investigation challan was filed against both the accused. After committal the learned ASJ Sangrur framed charges against the accused for the offence under Section 15 of the Act to which both the accused pleaded not guilty. In order to prove the guilt of the accused the prosecution examined 2 witnesses namely ASI Virinder Singh and SI Ujagar Singh. After closer of the evidence of the prosecution the accused was examined under Section 313 Cr.P.C.

(3.) IT is to be seen whether the conviction and sentence imposed by the learned ASJ Sangrur can be sustained and the evidence of PWs 1 and 2 only shows that on 17.1.88 when they were going on patrolling duty in a Matador they stopped near the brick kiln through the revenue limits to village Rajomajra. There they saw 2 persons sitting on a heap of bags and on seeing them Chinder Singh accused No. 2 fled away while Harcharan Singh was arrested. SI made search of Harcharan i.e. the appellant herein but nothing was found on his person. Thereafter a search was made of the bags which were found to be containing poppy husk. The bags were weighed and samples were taken from each bag. PW2 also deposed to the same effect. Both of them categorically stated that place of recovery is an open and accessible place. they further deposed that two constables had chased Chinder Singh but he was not caught. It is also in the evidence of both of them that no independent witness was joined. Apart from that there is no evidence that the gunny bags were belonging to accused No. 1. It must be proved by the prosecution that the gunny bags containing poppy husk have been kept at the place of recovery by the accused but there is absolutely no evidence to prove this fact. When there is no evidence that the gunny bags containing poppy husk belonged to the accused he cannot be convicted for the offence under Section 15 of the Act. It requires imposition of minimum sentence of 10 years. The necessary material for holding the accused guilty of the offence has not been proved.