Contraband-Missing of link evidence-Acquittal--The prosecution has to prove in affirmative that right from the stage of seizure till it reached the hands of the Chemical Examiner, there was no possibility of tampering with the material or the sample.

R.S.Madan, J.

1. The instant Criminal Appeal has been filed by Shri Karnail Singh Son of Kaka Singh, resident of Village Gaggerpur, Police Station, Sangrur, against the judgment and order dated August 19, 1994, passed by Additional Sessions Judge, Sangrur, who convicted the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the "Act") and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. one lac, for keeping in his possession 3,500 grams of Opium without any permit or licence. In default of payment of fine, he was further ordered to undergo rigorous imprisonment for a period of one year.

2. In brief the facts of the case are that on 23.03.1989, a police party head by ASI Parkash Chand of Police Station, Sangrur, was proceeding from Village Gaggerpur towards Village Sajuma on patrol duty, in Gypsy which was being driven by HC Hans Raj. He was accompanied by ASI Nirbhai Singh, constables Hakam Singh and Jora Singh. When they reached near the bridge of Sem Nala, at about 3.15 p.m. the accused was seen coming from the opposite side holding a bag in his right hand, it is alleged that the accused on seeing the police party tried to slip towards his right hand side and on suspicion he was stopped and apprehended. After the completion of all the requisite formalities, the person of the accused was searched and he was found to be in possession of 3.500 grams of opium wrapped in a glazed paper, contained in the bag. Two samples of 10 grams each were drawn out of the recovered stuff. The samples and the remaining opium weighing 3.480 grams were sealed separately by the ASI with his seal bearing the seal impression PC and the case property was taken into possession. Information was sent to the Station. House Officer regarding the apprehension of the accused and the recovery of contraband, whereupon the present case was registered against the accused. After complying with all other formalities, in course of time, the report was sought from the Chemical Examiner who found the contents of the sample as opium. After the completion of the investigation of the case, report under Section 173 of the Code of Criminal Procedure was filed in the court of Area Magistrate who after supplying the copies of the documents to the accused, committed the case to the court of Sessions vide order dated 01.08.1989.

3. On appearance of the accused before the Additional Sessions Judge, Sangrur, the report under Section 173 Cr.P.C. and all other documents were taken into consideration and prima facie a case under Section 18 of the NDPS Act was found to have been made out against the accused. He was accordingly charge-sheeted thereunder on 23.8.1989 but lateron vide order dated September 14, 1990 the charge was amended, which was read over and explained to the accused in Punjabi, to which he pleaded not guilty and claimed trial.

4. The prosecution in support of its case examined ASI Nirbhai Singh, ASI Parkash Chand and Constable Ajaib Singh. They have disclosed in unison that on 25.03.1989 they were members of the police party headed by ASI Parkash Chand, who has since expired and at the relevant time they were in Govt. Jeep. When they reached near the bridge of seepage drain in the area of Village Gaggerpur, the accused was seen coming from the opposite direction holding a Jhola in his right hand and on seeing the police party, the accused tried to turn back towards his right side and was apprehended by the ASI with the help or other police officials. They further stated that on search of the accused 3.500 grams of Opium was recovered. Two samples of 10-grams each were separated from the bulk and were sealed into separate sealed parcel with the seal PC and the seal after use was handed over to ASI Nirbhai Singh. The parcels and the jhola were also taken into possession vide recovery memo Ex. PA. From the personal search of the accused, he w