JUDGMENT Usha Mehra, J.
(1) Shri Safiullah S/o Shri Hasmat Ullah was prosecuted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter called as the Act). He was tried by the learned Additional Sessions Judge, New Delhi, and came to the conclusion that the offence has been-made out against the petitioner. Accordingly he convicted the petitioner and sentenced him to rigorous imprisonment for 10 years with a fine of Rs.l,00,000.00 and to further rigorous imprisonment for two years in, case of default of payment this background that the present appeal has been filed.
(2) In order to appreciate the points raised, it will be relevant to know in the facts of the case.
(3) That a police party consisting ofS.I. Tej Pal Singh, Asi 0m Parkash and some constables including Constable Satish Kumar and others of Anti Auto Then Squad were on checking duty near Andheria Mor in the area of Police Station Mehrauli At that time S.I. Tej Pal Singh and Asi 0m Parkash received a secret information at about 8 P.M. that two persons were standing at the bus stand of Andheria Mor. They were having bags in their hands and there was charas in those bags. At this the police officials organized raiding party. S.I. Mahender Singh of Police Station. Mehrauli happened to reach there. He was also joined. They attempted to join some public witnesses and succeeding in joint (joining?) one Istgar Hussain.
(4) This party reached the bus stand of Andheria Mor at 6.15 P.M. The accused Safiullah and one other person Mohd. Ahmed were present there. The police officials apprehended them at the signal of informer. Asi 0m Parkash actually apprehended Safiullah. These accused were apprised that they were suspected to be carrying charas and they were to be searched and if they so desired they could be taken before a Gazetted Officer and could be searched there. They did not accept this offer. The police officials searched them.
(5) Asi 0m Parkash searched Mohd. Ahmed. From the bag carried by Safiullah charas was received. It weight 2 K.G. A sample of 10 grain was taken by Asi 0m Parkash from the charas recovered from Safiullah accused. This sample was sealed after wrapping it in a bag and the rest of the charas was sealed in separate parcel. These were sealed with the seal of O.V.S. A seizure memo of taking them into possession was prepared. The proceedings about recovery of charas from Mohd. Ahmed and taking samples from him and preparing writing was done by S.I. Tej Pal Singh. Asi 0m Parkash prepared a memo (note) addressed to duty officer, police station Mehrauli for registration of a case and sent it through constable Narender Kumar to Police Station. The F.I.R. of this case was registered on that basis. Ruqqa in respect of recovery from Mohd. Ahmed was sent by Tej Pal Singh for registration of case. After receipt of copy of F.I.R. from the police station at the spot Asi 0m Parkash formally arrested the accused and conducted further search of his person, resulting in recovery of RS.10.00 . A jama talashi memo was prepared.
(6) The sealed parcels were taken to Police Station Mehrauli and the parcels were produced before the S.H.O. Omvir Singh. The Sho affixed his own seal marking of O.V.S. on the parcels. These were deposited in the malkhana of police station Mehrauli. The accused was put up in the lock up on 26.11.1986, the sample was sent to C.F.S.L. through constable Sis Ram for Chemical examination. The report of Chemical Examination was received and it showed that the sample was of charas. Thus the accused was sent up for trial.
(7) Prosecution examined as many as 8 witnesses in all. Out of these witnesses P.W.5 Istagar Hussain stated to be an independent withness. He, however, did not support the prosecution case and hence was declared hostile. He stated that he knew nothing about this case and was forced to sign the seizure memo. He was a proclaimed offender and was facing trial under Section 304 Indian Penal Code . Police took advantage and pressurised him to become a witness. Other members of the raiding party happened to be police officials. They supported the case of the prosecution in its entirety. Mr. K.B. Andley, appearing for the appellant, contended that there were material contradiction in the testimony of Public Witness .8 i.e. the Inspector 0m Vir Singh. He tried to improve his statement in the Court to the extent that he affixed his seal on the CFSL from. This fact did not find mention in his statement under Section 161, Cr.P.C. Since the Courts started attaching weight to the C.F.S.L. form, therefore, Public Witness .-8 tried to improve his statement in this regard, in the Court. His testimony in Court which is contrary to his statement made under Section 161, Cr. P.C., would clearly prove that no C.F.S.L. form was filled nor any seals were affixed on the same nor it could have been deposited with the parcel in the Moharrar Malkhana. Since the inspector tried to improve his statement no reliance should be placed on his testimony.
(8) Sealed parcel is stated to have been deposited with the Moharrar Malkhana by the Investigating Officer Public Witness .,9, but nothing has been recorded about the deposit of the CFSL form nor there is any mention of the same in Ex. Public Witness .-9-A. Even the recovery memo Ex. Public Witness .4-A does not mention about the filling of the CFSL form. Even Public Witness .3 does not say anything about the filling of the CFSL form. The road certificate has not been produced, had it been produced it would have shown whether the CFSL form was deposited with the Moharrar Malkhana and from there it was taken to the office of CFSL. In the absence of the Road Certificate it cannot be said as to what articles were taken out from the Malkhana and were carried by road to the office of the, CFSL. From this an inference can be drawn that all the proceedings were conducted in the police station itself. This find support from the testimony of Istagar Hussain Public Witness .5 an independent witness who stated that all proceedings took place at the Police Station and not at the spot. If the proceedings had taken place at the spot as alleged by the member of the raiding party, then what prevented the Investigating Officer to fill the CFSL form and affixed his seal on the same. In fact joining of the alleged independent witness shows that the prosecution has tried to show the compliance of the .provision of law.The independent witness has not supported the version of the prosecution. According to him, he was made to sign the recovery memo in the police station. According to learned counsel for the petitioner this creates a doubt about the truthfulness of the story of the prosecution. The testimony of Head Constable Suresh Pal, the Moharrar Mal Khana, Public Witness . 9 shown that the CFSL form was not deposited with him.
(9) I have heard counsel for the parties and perused the record. The contention of Mr. Andley that since the public witness Istgar Hussain, Public Witness .-5, was declared hostile, therefore, no reliance on the prosecution case should be made. I find no force in this submission. From the statement of other members of the raiding party who even though police officials, if their statement inspires confidence, I see no reason to disbelieve them or the prosecution story. But the question for consideration is whether from their testimony any case is made out? The apprehension of the tampering of the parcel alleged to have been sealed at the site, containing Charas in question is alleged? But the prosecution has failed to dispell this assertion. The Investigating Officer, appearing as Public Witness .-9, nowhere stated as to what happened to the seal after use. He does not say that the same was handed over to the independent withness, or that the same was deposited with the Moharrar Malkhana. C.F.S.L. form was not filled as is apparent from the testimony of the prosecution witnesses, nor it was deposited with the Moharrar Malkhana. What will be the consequences if the CFSL form is not filled or deposited with the Moharrar Malkhana, particularly when the seal after use is not handed over to an independent witness? According to High Court Rules and Orders Chapter 18(part-B) Clause 8 and 3 in all cases of transmission of articles to-the Chemical Examiner a letter of invoice giving full description of articles sent should be dispatched. According to Clause Ii proper custody of articles throughout the various stages of inquiry must be established and traced. But in the present case Asi 0m Parkash appearing as Public Witness .7 does not say anything about the filling of the CFSL form but says that be deposited those sealed parcels in the Malkhana at Police Station Mehrauli. Moharrar Malkhana appearing in Court nowhere staled that he seat the article to the Chemical Examiner along with the CFSL form. This aspect assumes importance particularly when the seal used was not banded over to an independent witness.The seal after use were kept by the police officials themselves therefore the possibility of tempering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tempered with. The prosecution could have proved from the CFSL form itself and from the road certificate as to what articles were taken from the Malkhana. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused. The provisions of NDPS Act are so stringent that it casts a duty upon the prosecution to rule out any possibility of tempering of the sample. That is why every time the Courts have come heavily on .the prosecution, when the prosecution fails to discharge the burden of proving that the sample taken and sealed was not tempered with as long as it remained in its custody. In the case of Pradeep Kumar Vs. State reported in 1989 (2) Chandigarh Law Reporter-702 it was held by Santosh Duggal, J. that the safeguard for ensuring the sanctity of the seal would be defeated if the DFSL form containing the specimen of seal is not deposited in the Malkhana together with the sealed parcel.This assumes importance particularly when the Sdo never supervised the sealing of the parcel and also because the seal after use was not given to the independent witness justifies the conclusion that there was no guarantee against tempering with the seal and the contents of the parcel. These observations made by Mrs.Santosh Duggal, J. aptly apply to the facts of this case.
(10) According to Form No. 10.17 of the Punjab Rules Vol.1 regarding road certificate at pages No.166-167, it is clearly mentioned that all the articles taken from the Police Station are to be separately and clearly mentioned in such certificate. In - the case in hand, the road certificate was neither produced nor exhibited, therefore, ill the absence of the road certificate it is also not clear whether the CFSL form was ever taken out from the Malkhana and sent along with the sample to the CFSL office.
(11) It is nowhere the case of the prosecution that the seal after use was handed over to the independent witness Public Witness .5. Even the 1.0. Public Witness .7 does not utter a word regarding the handing over of the seal after use. Therefore, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled out. Since the Inspector Omveer Singh, appearing as Public Witness .-8, has tried to improve his statement in the Court, to my mind, no reliance can be placed on his statement, particularly when the Investigating Officer and the Moharrar Malkhana do not say anything about the deposit of the CFSL form with the Moharrar Malkhana. In these circumstances I am clearly of the view that the prosecution has failed to prove this link evidence to show that the sample parcel was not tampered with the anyone before it was examined by the C.F.S.L. and the benefit of the same must go to the appellant.
(12) Mr. Andley also urged that there is violation of provision of Sections 50 and 55 of the Act. But, in view of my observations above I need not discuss these points and hold that the prosecution has not been able to prove beyond doubt on record that the recovery effected from the appellant was of Charas and so he is entitled to acquittal.
(13) Accordingly appeal is allowed. Conviction and sentence are set aside by giving him the benefit of doubt. The appellant be released forthwith, if not required in any other case.