AI Drafter 
TaxTMI 
TaxTMI 
2017 (5) TMI 1646
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....the Act) on the allegations that on 14.10.2002 in the area of G.T. Road, Rajpura, they both were found in possession of three bags containing 106.500 gms of poppy husk, by the police party headed by SI Balkar Singh of CIA Staff, Rajpura. 2. The case of the prosecution, in brief, is that on 14.10.2002 SI Balkar Singh of CIA Staff Rajpura alongwith his police party was present in front of Focal Point where Bag Singh of village Darian met him and was joined in his police party. When he was having a talk with said Bag Singh, a vehicle TAT 713 bearing No.2D-147858K of Army colour came from Ambala Side. On seeing the police party, the driver of that vehicle i.e. the accused Gannu stopped the vehicle at some distance, while Uttam Singh was sitting with him on the adjoining seat. SI Balkar Singh told both of them of his intention to conduct the search of the vehicle and when he checked from behind, three bags were lying on seat. SI Balkar Singh suspected that these were carrying some contraband and gave option to the accused to get their search conducted before some Gazetted Officer of Magistrate. The accused vide memo Ex.PC and PC/1 agreed for their search to be conducted by SI B....
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.... the prosecution has failed to prove conscious possession of the appellants over the contraband allegedly recovered from them. It is further contended that the alleged recovery had been effected from three bags. The prosecution was required to take out the entire contents of all the three bags over a piece of cloth to ascertain that the entire material recovered was a contraband. It is further argued that in the instant case, the complainant as well as the investigating officer is one and the same person which makes the case of the prosecution highly doubtful. There is an unexplained delay of one day in sending the case property to the Magistrate. The alleged independent witness was previously known to the investigating officer and no other independent witness was joined. On the other hand, the learned State counsel, has vehemently argued that on the strength of the evidence led on record, the prosecution has been able to bring home guilt to the accused. I have heard the learned counsel for the parties and perused the record. The law relating to degree of proof required in Narcotic Drugs and Psychotropic Substances Act, 1985 has been settled by a Division Bench judgment of....
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....the presumption is stumbling, on this vital aspect, the benefit is to be extended to the accused. In the instant case, Form No.29 was not prepared on the spot and was admittedly filled in after delay of two days, which has not been explained by the prosecution. Therefore, prosecution has failed to prove beyond reasonable doubt that the sample of contraband which was examined by the Forensic Science Laboratory was the same which was alleged to have been recovered from the appellants at the time of the alleged recovery. The second flaw in this case is that the contraband has not been proved to be recovered from the conscious possession of the appellants as it has been alleged to be recovered from three bags lying on the backside of the truck as mentioned in memo of consent, Ex.PC/1. On the contrary, SI Balkar Singh (PW4) is the investigating officer who has minced no words in testifying that the three bags were lying on the seat; whereas, ASI Baldev Singh (PW3), an alleged recovery witness has deposed that the bags were found lying under the seat of the vehicle. It is manifestly clear that there is major contradiction as to from where the contraband was recovered; backside of t....
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....ereof. Thus, in the absence of any evidence to the aforesaid extent, it cannot be believed that whole of the contents of the bags were poppy husk. P.K. Rai (PW1) while appearing in the witness box has stated that one of the gunny bags does not bear any seal. Inspector Mohinder Kumar (PW3) states that there is no seal on one bag brought in the court, nor it contained particulars of the case. The second bag from the bottom was tampered with or the bag bearing the seal of 'BS' was not produced in the Court. The argument advanced by the Assistant Advocate General, Punjab that the bag was changed, as it had torn with the passage of time, cannot be accepted. The bag was neither changed in the presence of the accused or any competent authority, much less the Investigating Officer. Besides this, there are certain documents which were allegedly prepared on the spot like search memo, Ex.PE and Ex.PE/1; recovery memo, Ex.PD; site plan, Ex.PG; arrest memo, Ex.PF and PF/1. All these documents bear the FIR number, meaning thereby, either the FIR was registered prior to the alleged recovery of the contraband or the number has been inserted in the documents after its registration. In bo....