Non-compliance with mandatory provisions of Section 50 and delay in sending the sample to the forensic lab can result in acquittal.

Sham Sunder, J.

1. This appeal is directed against the judgment of conviction dated 20.11.1997, and the order of sentence dated 22.11.1997, rendered by the Court of Addl. Sessions Judge, Kaithal, vide which it convicted the accused/appellant Nirmal Singh, for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as the Act only) and sentenced him to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of one year.

2. The facts, in brief, are that on 28.10.1995, at about 7.00 PM, Dhanna Ram, SI, alongwith Ramphal, ASI, Nathu Ram and Rajbir, Constables, was present at Bus Stand Pundri, in connection with investigation of a case against Mukhtiara son of Sardool Singh. At that time, Nirmal Singh, accused was also present there. Dhanna Singh, SI, suspected that the accused had concealed some narcotic substance, in his jacket. On the basis of suspicion, search of the jacket, being worn by the accused, was conducted, in accordance with the provisions of law. On search, 2 kg. of poppy-husk, was recovered, from the inner pocket of the Jacket. A sample of 200 grams, was separated. The sample and the remaining poppy-husk were converted into parcels, sealed with the seal bearing impression "DR", and taken into possession vide separate recovery memo. Site plan of the place of recovery, was prepared. The accused was arrested. Ruqa was sent to the Police Station, on the basis whereof, the formal FIR was registered. After the completion of investigation, the accused was challaned.

3. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty and claimed judicial trial.

4. The prosecution, in support of his case, examined Dhanna Ram, SI (PW-1), Ram Pal, ASI (PW-2), Roshan Lal (PW-3), and Ram Phal, Constable (PW-4). Thereafter, the Public Prosecutor for the State, after tendering into evidence, the report of the Forensic Science Laboratory, Madhuban, Ex.PH, closed the same.

5. The statement of the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, did not lead any evidence, in his defence.

6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore.

7. Feeling aggrieved, against the judgment of conviction and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant.

8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.

9. The Counsel for the appellant, at the very out-set, contended that no independent witness was joined, though the alleged recovery was effected from a public place. It is, no doubt, true that the evidence of the official witnesses, cannot be doubted, merely, on account of the reason, that no independent witness was joined by the Investigating Officer. However, in the peculiar facts and circumstances of the present case, when the accused alleged that he was falsely implicated, in this case, and alleged recovery is very minor, it can be held that non-joining of an independent witness, despite availability, clearly cast a doubt on the prosecution story. Since, the alleged recovery was effected from a public place, and the independent witnesses were present, even at the time, when the accused was allegedly apprehended, it became the bounden duty of the Investigating Officer, to join one of them, so as to show the genuineness of proceedings. The prosecution case becomes doubtful, on this ground