V.S. AGGARWAL, J.

(1) THE learned Judicial Magistrate 1st Class, Amritsar held the petitioner guilty of the offence punishable under Section 9 of the Opium Act, The petitioner was sentenced to undergo Rigorous Imprisonment for 2-1/2 years and to pay a fine of Rs. 1,000/- In default of payment of fine, he was directed to undergo further rigorous imprisonment for three months. Aggrieved by the said judgment and order of sentence passed by the trial Court the petitioner preferred an appeal in the Court of Sessions. Learned Addi. Sessions Judge. Amritsar on 14-5-1987 dismissed the appeal. Hence the present revision petition.

(2) THE relevant facts are that on 9-3-1983, a nakabandi was held on Majitha Road by-pass in the area of Ganda Singhwala by Sub Inspector Kartar Singh. He was assisted by ASI Harbans Singh and other police officials. There were certain members of the detective staff with Sub Inspector Kartar Singh. At about 6. 00 A. M. the petitioner was seen coming from the side of Milk Plant Verka. On seeing the police party, he tried to retreat his steps. This aroused suspicion in the mind of Sub Inspector Kartar Singh. The petitioner was apprehended. The person of the petitioner was searched. 10 Kilograms opium wrapped in a glazed paper was recovered. The same had been placed in a gunny bag flung over the shoulder of the petitioner. Sub Inspector Kartar Singh took a sample of 10 grams opium. The sample and rest of the opium were converted into two separate parcels. Both the packets were sealed and taken into possession. Vide recovery memo, ruqa was sent to the Police Station on basis of which formal First Information Report was registered. Subsequently, sample was sent for chemical analysis. On receipt of the report that it was opium, the challan under Section 173 of the Code of Criminal Procedure was submitted against the petitioner.

(3) THE defence of the petitioner put forward in his statement under Section 313 of the Criminal Procedure Code was that he has falsely been implicated. His contention was that he had a quarrel with the police in Azad Hotel near Amritsar bus-stand. As a result of that he has falsely been implicated.

(4) DURING the course of arguments, learned counsel, for the petitioner highlighted the fact that no public witness had joined and in the absence of public witness the case of the prosecution is suspicious. He further argued that there was tampering with the case property. Representative sample was sent after 3 months of the alleged recovery having been effected.

(5) IN a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel, the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.

(6) IN the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as P. W. 1 and Kartar Singh P. W. 2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo-type statement of non-availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the services of public witness. This reflects adversely on the prosecution version.

(7) NOT only that sample was sent after three months of the alleged recovery having been made. There is no explanation as to why more than three months took place, for sending the sample. The Malkhana Moharrir in his affidavit has simply stated that the sample and the case property was not tampered with. The argument, that delay should not prove fatal in the present case must fail. This is for the reasons that the said Malkhana Moharrir had not been tendered for cross-examination. In addition to that, both official witnesses contradict each other as to whom seal after use was given. According to ASI Harbans Singh, seal was handed over to Head Constable Darshan Singh while Inspector Kartar Singh P. W. 2 stated that after use seal was given to ASI Harbans Singh. These facts assume importance keeping in view that the sample was retained in the Malkhana for a very long time. Chances of the property, therefore, to be tampered with could not be ruled out. Keeping in view the facts mentioned above, petitioner is, therefore entitled to benefit of doubt.

(8) FOR these reasons, revision petition is accepted. The judgment and order of sentence passed by the trial Court and the judgment of the learned Addi. Sessions Judge are set aside. Petitioner is acquitted awarding him the benefit of doubt. Revision allowed.