JUDGMENT

A.S.ANAND, CJI.

     (1) THIS appeal by special leave is directed against an order and judgement of the High Court of Madhya Pradesh, Indore bench dated 26-09-1997 upholding the conviction and sentence of the appellant for an offence under sections 8/18 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the "NDPS Act).

(2) ACCORDING to the prosecution case on 08-08-1988, at about 4:30 p.m., the appellant was travelling in a bus which was checked by narcotics sub-inspector, Dudhnath Ram PW-1 near Hasanpaliya village at Neemuch-Dhar road. PW-1 found that there was an attache case lying on the rack and three persons were sitting on the backside seat of the bus. On inquiry as to whom, did that attache case belong to, the appellant is stated to have admitted that it belonged to him. The attache case also carried a name slip with the name of the appellant on it. The attache case was taken into possession by PW-1 and the appellant was made to alight from the bus. He was asked about the key of the attache case, which he took out from his pocket. Two panch witnesses Shankar Lal, PW-2 and Chhoga Lal, PW-3 were present. It is alleged that when the appellant opened the attache case, it was found to contain a bag which had black substance in it. The panches smelt the same and opined it to be opium. It was weighed and seized and two samples of 30 gms. each were taken out from the same for purposes of chemical examination. Those were sealed in two empty cigarette boxes. The cigarette boxes were wrapped with a thread and sealed. The panch witnesses, PW-2 and PW-3 signed on the wrapper as well as on the panchnamas which were prepared at the spot. The seized articles were produced by PW-1 before PW-7 Shri Rajdev Ram, who was working as district opium officer at the relevant time. The samples were sent for chemical examination and according to the report of the chemical examiner, the samples were found to be of opium. The appellant was, thereafter, sent up for trial for offences under sections 8/18 of the NDPS Act. Additional sessions judge, Jawara vide judgement dated 01-12-1994 convicted the appellant for the said offences and sentenced him to undergo Rl for 10 years and to pay a fine of Rs.1,00,000.00. In default of payment of fine, the appellant was to further undergo Rl for 2 years. Aggrieved by the conviction and sentence, the appellant filed an appeal before the High Court which, as already noticed, was dismissed.

(3) WE have heard Mr. Rao Ranjit, who has appeared as amicus curiae for the appellant and Ms. Vibha Datta Makhija for the state.

(4) THE only evidence on which the prosecution case hinges is that of PW-1 Shri Dudhnath Ram who at the relevant time was working as sub-inspector narcotics. Both the panch witnesses, Shankar Lal PW-2 and Chhoga Lal PW-3 have not supported the prosecution case. Even the driver of the bus, Hari Singh PW-5 and conductor of the bus, Afsaruddin PW-6 turned hostile and did not support the prosecution case. Our careful analysis of the deposition of PW-1 Dudhnath Ram shows that his testimony suffers from many infirmities and it would not be safe to rely upon his sole testimony to hold the appellant guilty.

(5) IT has not at all been explained by the prosecution and by PW-1 as to why he brought down only one passenger from the bus, if he did not have any prior information or entertained any suspicion regarding the involvement of the appellant for possessing or smuggling of opium. It is not the case of PW-1 that he had any prior information and therefore, he searched the bus looking for the suspect. In case he had some prior information, he was obliged to make a record of it and send its copy to higher officials before proceeding for checking duty. On his own admission, PW-1 went towards Ratlam for checking buses with a view to find out in case any opium was being smuggled or if anybody was found in possession of the same. He checked on