The judgment establishes the mandatory nature of certain provisions, the fatal impact of non-compliance on the prosecution's case, and the necessity of transparency and fairness during search and seizure.

Nirmal Yadav, J.

1. This common judgment shall dispose of both the abovementioned appeals which arise out of the judgment of conviction and order of sentence dated 20.4.2002 passed by Additional Sessions Judge, Sirsa whereby appellants have been convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short `the NDPS Act) and sentenced to undergo R.I. for ten years and to pay a fine of Rs. 1 lac and in default of payment of fine, to further undergo R.I. for two years.

2. As per prosecution story, on 19.9.1995, when police party headed by Hoshiar Singh, S.I. was present in the area of Village Khari Sureran along with one Babu Lal, a car bearing registration No. DHA-2810 came from the side of Nohar, which was got stopped. The said car was occupied by Sukhvinder Singh and Ramji (present appellants/accused). Suspecting some contraband being carried in the car, the Sub-Inspector served notice-Exhibit PF under Section 50 of the NDPS Act on the occupants of the car, who vide Exhibit PF/1 desired the search to be conducted in the presence of a Gazetted Officer. Accordingly, Darshan Kumar Bali, DSP, Ellenabad was called to the spot. The car was searched and it was found to contain total 8 bags of Choora Post, 5 bags lying under a blanket and 3 in the dickey. Each bag weighed 41 kgs. Samples weighing 100 grams of the recovered substance were drawn from each of the bags. The samples as well as the remaining contents of the bags were made into parcels separately and sealed with the seals `HS of Hoshiar Singh, SHO and `DKB of Darshan Kumar Bali, DSP. After use the seal bearing impression `HS was handed over to Maha Singh, ASI and the other seal bearing `DKB impression was retained by the DSP himself. The case property along with car and blanket was taken in possession vide recovery Memo Exhibit-PA. The Sub-Inspector sent Ruqa, Exhibit-PD to Police Station for registration of FIR and also prepared the rough site plan, Exhibit-PG of the place of recovery. Both the accused were served with notice of arrest, Exhibit-PH and statements of witnesses were recorded. On return to Police Station, the case property was deposited with MHC and accused were put behind the bars. The samples were got analysed from the Forensic Science Laboratory, Madhuban, which were reported to be of poppy straw (Choora Post).

3. I have heard learned counsel for the parties and perused the material on record.

4. Learned Counsel for the appellants, at the outset argued that Babu Lal, the alleged independent witness cannot be termed as an independent witness, as he was a Home Guard personnel. It is argued that recovery was effected at a public place and the Investigating Officer had sufficient opportunity to join an independent witness from the public. The explanation that the Investigating Officer tried to associate some public persons, but they refused, cannot be accepted. It is further urged that even the said Babu Lal, who is alleged to have witnessed the search and seizure, has not been produced in the witness box. He was given up by the prosecution as having been won over by the accused. The non-production of the alleged independent witness certainly creates a doubt in the prosecution case. It is further argued that even the link evidence has not been proved beyond reasonable doubt. It is pointed out that the seal of the Investigating Officer bearing impression `HS was handed over to Maha Singh, ASI, whereas, the seal of DSP bearing impression `DKB was retained by the DSP himself. In case Babu Lal was cited by the prosecution as independent witness, the seal, after use, should have been handed over to him. There is no explanation coming forth on the record as to why the seal, after use, was not given to him, as, in normal circumstances, it is given to the independent witness. Learned counsel, thus, pointed that it may be possible that the alleged independent witness was not present at the spot. Another flaw pointed out by the