The prosecution must prove the safe custody of seized material and the link evidence beyond reasonable doubt to establish the guilt of the accused.

JUDGMENT :

Alok Kumar Verma, J.

Present Government Appeal has been filed against the judgment dated 21.10.2003, passed by learned Special Judge, Pithoragarh in Special Sessions Trial No. 05 of 1997, “State vs. Narendra Gwal”, by which, respondent-accused has been acquitted of the charge under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “Act, 1985”).

2. The prosecution case, briefly stated, is that on 18.12.1996, Station Officer Amar Singh (PW4) had come for checking at Gauri bridge with Head Constable Ravindra Singh (PW1) and Constable Sate Singh. They were checking with Constable Suraj Pal Singh (PW3) and other police personnel. They saw a jeep, bearing Registration No.UP03- 2184, going from Dharchula towards Pithoragarh. That jeep was checked by them at around 9.15 hrs. Driver Mahendra Singh was driving of that jeep. Accused Narendra Gwal was sitting on the left seat of the said jeep. He had a bag in his lap. His name and address were asked. He told that he had charas in his bag. He was asked if he wanted to give his search before any Judicial Magistrate or Sub-Divisional Magistrate. He had expressed his desire to give his search before the Sub-Divisional Magistrate. The driver and other passengers of the jeep had refused to give evidence. At around 11.45 hrs, accused was produced before Amar Nath Upadhyay (PW2), the then Sub-Divisional Magistrate, Dharchula. Scales and weights were brought. The weight of the recovered charas was found to be 1 Kg. 200 grams. The recovered contraband was sealed. The said contraband was taken into possession vide Recovery Memo (Ext. Ka. 1). An FIR (Ext. Ka. 2) was lodged. Sample was sent to the Chemical Examiner, Agra, who found the same to be “Charas”. Charge-sheet was filed after completion of investigation.

3. Charge under Section 20 of Act, 1985 was framed. Accused pleaded not guilty and claimed to be tried.

4. At the trial, the prosecution examined five witnesses.

5. Statement of accused was recorded under Section 313 of the Code of Criminal Procedure, 1973. He denied all the incriminating evidence, produced by the prosecution. He stated that he was a student of Class IX. He was going to his relative’s house. He was falsely implicated by the police.

6. Accused examined Mohan Ram (DW1) in his defence evidence.

7. Learned Trial Court heard arguments, appreciated the evidence and passed the impugned judgment, by which, respondent-accused has been acquitted.

8. Mr. S.S. Adhikari, learned Deputy Advocate General, argued that the prosecution has proved its case against respondent-accused beyond all reasonable doubt; prosecution has examined five witnesses and all of them have supported the case of the prosecution; therefore, judgment of acquittal is not justified in the eyes of law.

9. Mr. Amar Murti Shukla, learned amicus curiae, has supported the impugned judgment.

10. An accused must be presumed to be innocent until he is proved to be guilty is an integral part of the Criminal Justice System and the said presumption is strengthened by the order of acquittal. In case of acquittal there is double presumption in favour of the accused. However, it is equally the duty of the Court to see that the guilt do not escape punishment. Therefore, I have carefully assessed the evidence, available on the record.

11. (PW1) Head Constable Ravindra Singh, (PW3) Constable Suraj Pal Singh and (PW4) In-charge Inspector Amar Singh, informant, were members of the raiding party. According to the prosecution, the sample was taken from the seized contraband in the presence of (PW2) Amar Nath Upadhyay, Sub-Divisional Magistrate, Dharchula and (PW5) Mukhtyar Singh Rana is an Investigating Officer.

12. The prosecution’s case is that the respondent- accused was checked on 18.12.1996 at about 9:15 hrs. He was produced before the Sub-Divisional Magistrate, Dharchula (PW2). 1 Kg. 200 grams of charas (Material Ext. 1) was recovered from his bag. The recovered material was sealed before the Sub-Divisio