Bail Slip The appellant/ Accused No.1 viz., namely Ashok was directed to be released on bail in and by the order of this court dated 27.1.2003 and made in Crl.M.P.o.408 of 2003 in Crl.A.No.81 of 2003 on the file of this Court. IN THE HIGH COURT OF JUDICATUE AT MADRAS DATED: 07.01.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.81 of 2003 Ashok .. Appellant/ Accused No.1 Vs. State: rep. by the Inspector of Police, NIBCID, Chennai, Crime No.22/96. .. Respondent/ Complainant Criminal Appeal against the judgment of conviction and sentence, dated 20.12.2002 in C.C.No.250 of 1996 on the file of the Special Court under NDPS Act, Chennai. For appellant : Mr.R.C.Paul Kanagaraj For respondent: Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side) JUDGMENT The Criminal Appeal arises out of the judgment of conviction and sentence imposed on the appellant/A.1 in C.C.No.250 of 1996, dated 20.12.2002, on the file of the Special Court under NDPS Act, Chennai. The appellant/A.1 was convicted for the offence under Section 8(c) read with Section 21(b) of the NDPS Act and sentenced to undergo two years' rigorous imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo six months rigorous imprisonment. 2. The case of the prosecution is as follows: (a) On 27.9.1996, P.W.4 Martin, who was working as Sub- Inspector of Police at NIBCID and P.W.3 Mani was working as Head https://hcservices.ecourts.gov.in/hcservices/ Constable in the same Police Station. When P.W.4 was in his Station at about 16.30 hours, he received an information that the accused were selling heroin at the junction of Chintadripet Market Road and Venkatagramani Street and the same was reduced into writing under Ex.P-8 and submitted to the Inspector of Police. He gave information to R.1 Mambalam Police Station to send the Woman Constable for the above said purpose. On that basis, P.W.2 Andal, Woman Constable went to NIBCID at about 16.40 hours and reported before P.W.4 Martin, Sub-Inspector of Police. (b) Then P.W.4 Sub-Inspector of Police left the office along with P.Ws.2 and 3 at about 17.15 hours and reached the junction of Chintadripet Market Road and Venkatagramani Street. At about 17.30 hours, the accused, coming from east to west, were identified by the informer of P.W.4 and were intercepted by P.W.4 with his party. He informed them his identity and the information. He also informed them about the rights of the accused required to be searched in the presence of Gazetted Officer or Magistrate, for which they told him that they could be searched by P.W.4 himself and the same was reduced into writing under Exs.P-3 and P-4 and obtained the thumb impression of A-1 and the signature of A-2. He also signed in it after obtaining the signature of one Balu, P.Ws.2 and 3. (c) He searched A-1 in the presence of P.Ws.2 and 3 and one Balu and recovered a polythene cover from his shirt pocket in which he found 44 small magazine paper packets. On opening, he found heroin in it. He also recovered M.O.3 Rs.80/- from his lungi fold. He weighed the paper packets which are found to be 10 grams. (d) Then, he searched A-2 with the help of P.W.2 Andal, Woman Police Constable and recovered a plastic cover from her inner side of her jacket. On opening, he found 43 small magazine paper packets, in which heroin was found. He weighed the same and found it to be 10 grams. He also recovered M.O.4 Rs.100/- through P.W.2 from her saree fold. (e) Then, he kept the paper packets in the same polythene cover and kept it in a brown colour cover and tied with thread and seal was affixed. Paper slip was affixed and the same was attested by witnesses. (f) He recovered the alleged contraband in the presence of attesting witnesses under Ex.P-5 mahazar. He informed the grounds of arrest under Exs.P-6 and P-7 arrest memos and arrested the accused at about 18.15 hours. (g) He brought the accused along with the contraband at about 18.45 hours and registered a case in Cr.No.22 of 1996 for the offence under Section 8(c) read with Section 21 of the NDPS Act and prepared Ex.P-9 F.I.R. He handed over the accused along with the contraband to the Inspector of Police along with Ex.P-10 (57 report). (h) On 7.10.1996, P.W.1 Ezhilarasi was working as Chemical Analyst Gr.I at Forensic Department, Chennai. Her Office has https://hcservices.ecourts.gov.in/hcservices/ received two paper packets under Ex.P-1 letter of the Special Court pertaining to Cr.No.22 of 1996 of NIBCID. She gave Sl.Nos.1 and 2 for the packets. On opening, she found 43 and 44 small packets respectively. On again opening, she found brown colour powder, which was analysed by her and found "di-actyle morphine" in it, which is commonly known as "heroin". She sent the report Ex.P-2 along with M.Os.1 and 2 empty paper packets. (i) On 27.9.1996, P.W.5 was working as Inspector of Police in NIBCID. He received the documents pertaining to Crime No.22 of 1996 from P.W.4 Martin, Sub-Inspector of Police and took further investigation. He examined the witnesses Balu, P.W.2 Andal, Woman Constable, P.W.3 Mani, the then Head Constable, P.W.4 Martin, Sub- Inspector of Police and one Thiyagarajan and recorded their statements. (j) On 28.9.1996, he sent the accused along with the contraband for remand and gave requisition Ex.P-11 to send the contraband for chemical analysis. After receiving the copy of Ex.P-2 chemical report, he completed the investigation and filed a final report against the accused on 24.12.1996 for the offence under Section 8(c) read with Section 21 of the NDPS Act. 3. The trial Court, after examining P.Ws.1 to 5, Exs.P-1 to P- 11 and M.Os.1 to 4, came to the conclusion that both the accused are guilty under Section 8(c) read with Section 21(b) of the NDPS Act and sentenced them to undergo two years' rigorous imprisonment and imposed a fine of Rs.5,000/-, in default, to undergo six months' rigorous imprisonment. Against that, A-1 has come forward with this Criminal Appeal. 4. Challenging the conviction and sentence passed by the trial Court, learned counsel for the appellant-A.1 would put forth only three limb of arguments, stating that the properties seized do not tally with the properties sent to the Forensic Sciences Laboratory and that the person who transported the same is one Navaneethakrishna, who was not examined before Court. Learned counsel for the appellant/A.1 culled out some portions of the evidence of P.W.1, the Scientific Assistant Gr.I of the Forensic Sciences Laboratory and submitted that the material objects do not contain the Police seal and it contained only the Court's seal. Form 95 has also not been produced before Court. So, there is no evidence to show that after the seizure of material objects, it was kept in safe custody and that has been sent to the Forensic Sciences Laboratory for testing. Unless that is established, the conviction of the appellant/A.1 in a grave offence like the present one, cannot be sustained. Learned counsel also relied upon a decision of this Court reported in 2002 (1) M.W.N. (Cr.) 118 (Ananthi Vs. State rep. by N.I.B.C.I.D., Trichy) and prayed for acquittal of the appellant/A.1. https://hcservices.ecourts.gov.in/hcservices/ 5. Learned Government Advocate (Crl. Side) culled out some portions of the evidence of P.W.1 and mahazar, stating that the properties seized weigh nearly 10 gms. and there is no variation in the weight of the material objects. But he fairly conceded that the said Navaneethakrishnan has not been examined before Court. Learned Government Advocate vehemently opposed the arguments advanced by learned counsel for the appellant/A.1 and prayed for dismissal of the appeal. 6. Learned counsel for the appellant/A.1 submitted that the material objects seized as per the evidence of P.Ws.1, 2 and 3 weigh nearly 10 gms., whereas, as per Ex.P-2 chemical analysis report of the Forensic Sciences Laboratory, it is above 10 gms. But this argument does not hold good, because, while considering the Ex.P-2 chemical analysis report of P.W.1, it is seen that the material objects weigh below 10 gms. So, the argument advanced by learned counsel for the appellant that the weight of the material objects vary with the weight of the material objects tested by P.W.1, does not merit acceptance. 7. The next limb of argument advanced by learned counsel for the appellant/A.1 is that as per the evidence of P.W.1, the Chemical Analyst, who has stated that after verifying the material objects, which was in packets, only they contained Court's seal and not the Police Station seal. But on receipt of Ex.P-1 requisition from the Court, P.W.1 has conducted the test. Admittedly, as per the evidence of P.W.3 Sub-Inspector of Police (the then Head Constable) and P.W.4 Inspector of Police, the properties have been seized after following the formalities and it must contain the Police Station seal before it was produced before Court. While perusing the entire records, there is no evidence before Court to show that after seizure of the material objects, they have been immediately forwarded to Court. Form 95 has also not been produced before Court. There is no evidence to show as to whether the material objects have been kept in the Police Station or handed over to the Magistrate concerned, and the same has not been proved by the prosecution by way of examining the witnesses and filing the document--Form 95. They filed Ex.P-11, wherein, the investigating officer P.W.5 has given a requisition to the Court to send the contraband materials for chemical examination. But they failed to produce Form 95. In such circumstances, in the absence of Form 95, it is unable to consider that the material objects seized from the accused were handed over to Court for sending to Forensic Sciences Laboratory for examination by P.W.1. 8. P.W.4 Martin, Sub-Inspector of Police and P.W.5 Deputy Superintendent of Police, are the competent witnesses to depose about the safe custody of the material objects. There is no evidence on their part to prove the same. At this juncture, it is appropriate https://hcservices.ecourts.gov.in/hcservices/ to consider the decision of this Court reported in 2002 (1) M.W.N. (Cr.) 118 (cited supra), wherein, this Court held as follows: "7. Going to the last question namely whether the prosecution had established beyond doubt that the property that was seized on 13.7.1996 alone was sent to the laboratory and examined. I applied my mind to the oral evidence of the respective witnesses. P.W.5 is the empowered officer, who searched and seized the contraband. His evidence is as follows: Evidence in chief: "He had taken two samples weighing five grams each; one sample was meant for safe custody and the other sample was meant for being sent to the laboratory; each sample was put in a white polythene cover; packed and it was stapled; it was wrapped up in a khaki paper; it was secured by twining it with the thread; the seal of N.I.B. was put on the top of it; therefore a slip of paper was pasted around the same in which besides P.W.5, the accused and the witnesses have signed." Evidence in cross: "On the date of the arrest itself the accused was sent for judicial remand along with case properties and Form 95; after surrendering the case properties in Court, it was taken back and a police constable brought it back; when P.W.6 took up investigation he handed over the case properties to him. P.W.6 is the Investigating Officer in this case. His evidence is as follows: Evidence in chief: "On reaching the police station, he verified Form 95 with the case properties; accused was sent for judicial remand; he also verified Form 95 and the case properties received back from the Court; on 18.7.1996 he produced the case property before the Special Court with a requisition to send the same to the laboratory; on 21.7.1996 Police Constable 647 filed the report before him that the case property was produced at the laboratory." Evidence in cross: "To verify that the specimen seal of N.I.B. affixed on the sample is the seal found on the sample when received at the laboratory, the specimen seal of the office had been sent to the laboratory; the laboratory report do not indicate that the specimen seal and the seal found on the sample were verified and found to be correct." https://hcservices.ecourts.gov.in/hcservices/ P.W.7 is the Scientific Assistant in the laboratory. His evidence shows the following: Evidence in chief: "On 19.7.1996 along with Court's requisition the case property was received at the laboratory through police constable 647; the Court's seal in the requisition letter of the Court was compared along with the seal found on the sample packet; under the supervision of the Assistant Director, the sample packet was opened; on the sample packet N.I.B. seal was there." Evidence in cross: "Before taking the sample packet for examination, the seal found on the sample would be thoroughly examined; the report/Ex.P-8 do not show the presence of any signature on the sample packet; the importance of verifying the seal on the sample packet as well as the sample seal is only to ensure identity of the property; in Ex.P-8 report, it is not stated that the seal found on the sample packet as well as the sample seal were verified; Ex.P-8 is the printed form; the printed form contains a recital (as the printed material) that "along with the requisition a secured and sealed sample was received." Ex.P-8 does not also show that the seal of N.I.B. is found on the sample packet." 8. The importance of letting in evidence to show that the seized material alone was sent to the laboratory to rule out any foul play; had been emphasized at least in three judgments of the Hon'ble Supreme Court of India and they are as follows: In State of Rajasthan v. Daulat Ram, A.I.R. 1980 S.C. 1314, it has been held as follows: "Where the sample of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained were examined by the prosecution to prove that while in their custody the seals on the samples were not tampered with, the inevitable effect of the omission was that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period in question a fact which had to be proved affirmatively by the prosecution. Consequently, the accused could not be convicted under Sec.9-A. In such a case, the prosecution could not be allowed to fill up the gaps in the prosecution story at the appellate or revisional stage." https://hcservices.ecourts.gov.in/hcservices/ In Vatsala v. State of Kerala, 1993 S.C.C. (Crl) 1082, it has been held as follows: "We have seen the report of the chemical examiner and there no doubt it is mentioned that one sealed parcel was received containing a powder and it was analysed to be brown sugar. But from the records it is clear and it is also noted by both the Courts below that the seized article was produced in the Court only on January 14, 1988 i.e. after a period of more than three months and there is no evidence whatsoever at all to show with whom the seized article was lying and even assuming that it was in the custody of P.W.6. the officer in charge of the police station who seized it, there is again nothing to show whether it was sealed and kept there. The learned counsel for the State no doubt argued that the provisions of Sec.55 of the Act are not mandatory but only directory. We need not go into this legal question in this case. Suffice it to say that the article seized appears to have been not kept in proper custody and proper form so that the Court can be sure that what was seized only was sent to the chemical examiner. There is a big gap and an important missing line. In the mahazar Ex.P-2 which is immediately said to have been prepared, there is nothing mentioned as to under whose custody it was kept after seizure. Unfortunately for the prosecution even P.W.6 does not say that he continued to keep it in his custody under seal till it was produced in the Court on January 14, 1988. The evidence given by P.W.6 Police Sub-Inspector, who seized the article is absolutely silent as to what he did with the seized article till it was produced in the Court. As a matter of fact, he did not produce it in the Court. P.W.3 (A.S.I) is supposed to have produced the same in the Court. It is only P.W.7 the Circle Inspector who comes into the picture at a later date, who admitted in the cross-examination that the seized article was sent by P.W.3 (A.S.I) to the Court and P.W.7 in his cross-examination further admitted that he did not even see if the recovered material object was sealed but still he claims that he made the necessary application for sending the material object for chemical examination and it is only through P.W.7 that the chemical examiner's report is marked. P.W.7 further admitted that he did not even know when it reached the Court. We are constrained to say that the investigation in this case has been perfunctory and on important aspects the evidence of the concerned https://hcservices.ecourts.gov.in/hcservices/ officers is highly discrepant and unconvincing and does not throw much light. Therefore the evidence adduced is wholly insufficient to conclude that what was seized was sent to the chemical examiner. Though this is purely a question of fact but this is an important link. Both the Courts below have not examined this aspect in a proper perspective. No doubt the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof, the Courts cannot convict. In Gurubak Singh v. State of Haryana, 2000 A.I.R. S.C.W. 670, the Investigating Officer had admitted that the parcels containing the samples were not sealed by the officers in charge of the police station as required under Sec.35 of the N.D.P.S. Act. It was found in that case that the prosecution had not let in any evidence to show as to whether the chemical analyst received the samples with proper intact seals. In the absence of such evidence, it was held by the Hon'ble Supreme Court of India that, it raises a serious doubt as to whether the same sample was sent to the chemical analyser. It is clear from the said judgment that a duty is cast upon the prosecution to let in evidence before Court to the effect that what was seized alone, was sent for chemical examination. 9. Analysing the materials on record, in the context of the law laid down by the Hon'ble Supreme Court of India and the arguments advanced by the learned counsel for the appellant, I find that the prosecution had definitely failed to establish that the materials shown to have been seized on 13.7.1996 from the accused are the materials that have been sent to the laboratory. Form 95 which was sent along with the case property on the date of the arrest of the accused to the Court is not produced as an exhibit in this case. Form 95, along with the case properties, are stated to have been received back from the remand Court through a police constable. What was the endorsement of the Court on Form 95 while returning the property to the investigating agency can very well be seen only when Form 95 is produced before Court. It may be the statement of the Court asking the police to keep it in safe custody and produce it later on before the special Court or it may also contain any defects noticed by the Court at the time when the case properties were produced before it. The evidence of the Scientific Assistant examined in this case as P.W.7 and a perusal of Ex.P-8/report do not show that the sample seal of N.I.B. received at the laboratory was compared with the seal of https://hcservices.ecourts.gov.in/hcservices/ N.I.B, found on the sample packet, which reached the laboratory. Only when there is evidence to that effect, it would totally rule out the possibility of any foul play. P.W.6 the investigating Officer had categorically stated in his evidence that the sample seal of N.I.B. was also sent to the laboratory to ensure the identity of the property seized and sent. The police constable, who carried the sample packet to the laboratory is stated to have filed a report before the Investigating Officer of having produced the sample before the laboratory and that report is also not before Court. The case property was admittedly returned by the Court on 13.7.1996 and it was re-submitted before the Special Court only on 18.7.1996. P.W.6 stepped into the Investigation in this case on 13.7.1996 itself. P.W.5 the empowered officer, in his evidence would state that on P.W.6 taking the investigation, he gave the case records to P.W.6. This would mean that P.W.6 should have been given custody of the sample. But P.W.6 had not given any evidence at all as to whether the sample was taken from 13.7.1996 till it was submitted before the Special Court on 18.7.1996. To be precise, there is no evidence to show whether P.W.6 continued to have the case property in his custody, which was submitted before the Special Court on 18.7.1996 or was it in the custody of any other individual. Inasmuch as P.W.6 is totally silent on this aspect, the possibility of persons, other than P.W.6, having custody of the samples, cannot be totally ruled out. There is also no evidence in this case to the effect that the Officer in charge of the police station had put the seals on the parcels so brought to the police station as required under Sec.55 of the N.D.P.S. Act. All the aforementioned facts raise a serious doubt in my mind as to whether the property which is shown to have been recovered from the accused on 13.7.1996 is the property that had been sent to the laboratory for test. If that is so, the judgments of the Hon'ble Supreme Court of India will definitely apply to the case on hand and giving the benefit of doubt to the accused, she is acquitted forthwith of the offence for which she was charged, tried and convicted. Consequently, the appeal is allowed and the judgment under challenge is set aside." 9. From the said decision of this Court, it is clear that it is the duty of the prosecution/respondent to prove that the materials seized from the accused have been sent to the Forensic Sciences Laboratory for chemical examination. In the present case, there is no evidence available and the person who has taken the material objects to chemical laboratory, namely Mr.Navaneethakrishnan, has https://hcservices.ecourts.gov.in/hcservices/ not been examined before Court. In the said decision of this Court, it is stated that the Police Constable who carried the sample packet to the Laboratory, was stated to have filed a report before the Investigating Officer of having produced the sample before the Laboratory and that report was also not before Court. 10. In the present case, there is no evidence to show that the properties seized from the accused, were either in the custody of the investigating agency or in the custody of the Court. The proper custody of the properties, has not been proved by the prosecution. Hence, it is painful to accept that the properties analysed by P.W.1, are seized only from the accused, even though they contained heroin. 11. In such circumstances, it is unsafe to convict the appellant/A.1 for the offence under Section 8(c) read with Section 21(b) of the NDPS Act. The trial Court has not considered the aspect of not keeping the material objects in proper custody and not examining the said Navaneethakrishnan as a witness to prove that the material objects seized from the accused, have been sent to the Forensic Sciences Laboratory. 12. Further, the trial Court, in paragraphs 14, 15