Delhi High Court (May 21, 2001) 2002 (TLS)126248 2002-DLT-95-286 SUBHASH CHAND MISHRA Vs. state of delhi R. C. Chopra ( 1 ) THIS appeal is directed against the conviction and sentence of the appellant vide orders dated 30. 11. 1998 under Section 20 of the Narcotic Drugs and Phychotropic Substances Act, 1985 (hereinafter REFERRED TO to as the act only ). The appellant stands sentenced to 10 years RI and a fine of Rs. 1 lakh. In default of payment of fine, he has to undergo further RI for two years. ( 2 ). I have heard learned Counsel for the appellant and learned Counsel for the state. I have gone through the Trial Court records. ( 3 ) THE facts relevant for the disposal of this appeal, briefly stated, are that vide fir No. 482/94 P. S. Kalyan Puri, a case under Section 20 of the Act was registered against the appellant. According to prosecution on 11. 11. 1994 SI Rakesh Chand of ps Kalyan Puri received a secret information. He recorded this information in daily diary and after conveying it to the SHO and ACP organised a raiding party. One public witness Jaswant Singh was also joined in. the raiding party. They reached dalu Pura T. Point at 12. 15 p. m. and took their positions. At about 2. 15 p. m. , the appellant came there and on the pointing out of the informer, he was stopped. ACP informed him that there was information that he was in possession of contraband and also told him that if he so wished he could be searched in the presence of a gazetted Officer or a Magistrate. Notice under Section 50 of the Act was served upon him but he did not insist for search in the presence of a Gazetted Officer or a magistrate. The accused / appellant was allegedly carrying a Thela in his hand from which 5 kg. of Charas was recovered. 5 gm. of Charas was taken out as sample. The sample as well as remaining Charas were sealed into separate parcels. Form CFSL was filled up and the seal after use was handed over to public witness Jaswant Singh. The accused / appellant was allegedly carrying a Thela in his hand from which 5 kg. of Charas was recovered. 5 gm. of Charas was taken out as sample. The sample as well as remaining Charas were sealed into separate parcels. Form CFSL was filled up and the seal after use was handed over to public witness Jaswant Singh. The sealed parcels as well as CFSL Form were handed over by the 10 to SHO who affixed his own seal on the parcels as well as CFSL Form and the case property was sent to the police station. The house of the appellant was also searched from where a scale and some weights were recovered. The report of the CFSL revealed that the sample in question was Charas. After necessary investigations a challan was filed against the appellant. ( 4 ) THE learned Trial Court framed a charge against the appellant to which he pleaded not guilty and claimed to be tried. In support of its case the prosecution examined PW 1 ASI Saffiullah Khan who was in the raiding party. He deposed in detail about the formation of the raiding party, apprehension of the appellant and recovery of contraband from him. PW 2 Jaswant Singh, public witness did not support the prosecution case. The request of learned APP to cross-examine him was allowed. He admitted his signatures on notice under Section 50, personal search memo and recovery memo but stated that his signatures on these documents were received at the police station. PW 3 S. P. Rana, former SHO, PS Kalyan Puri also deposed about the formation of the raiding party and the recovery of the contraband from the appellant. He admitted that he had already been dismissed from service 288 on account of some corruption charges. PW 4 Const. Kiran Pal was also a member of the raiding party. He also supported the prosecution case. However, in his cross examination, he stated that the Charas recovered from the appellant was of "matiala" colour. PW 5 SI Nathan Singh had partly investigated the case. He deposed that on 29/12/1994 he handed over a sealed parcel of sample to const. Satinder Kumar for taking the same to CFSL Chandigarh. In his cross examination, he stated that he did not send anything else to CFSL along zuith the sealed sample. PW 6 Const. PW 5 SI Nathan Singh had partly investigated the case. He deposed that on 29/12/1994 he handed over a sealed parcel of sample to const. Satinder Kumar for taking the same to CFSL Chandigarh. In his cross examination, he stated that he did not send anything else to CFSL along zuith the sealed sample. PW 6 Const. Satinder Kumar who had taken the sample to CFSL Chandigarh deposed about the delivery of the sample at CFSL Chandigarh and stated that so long as the property remained in his possession it was not tampered with. In his cross-examination, he stated that there were two seals on the sample but was not in a position to tell the places where the said two seals had been affixed. He denied that the CFSL Form was not taken to the laboratory along with the sample. PW 7 K. P. Singh retired ACP deposed in detaile about the information of the raiding party, apprehension of the accused-appellant and recovery of contraband from him. PW 8 Cons. Ram Niwas, the Malkhana Moharrar, categorically stated that he had received two parcels, CFSL Gorm, scale and weights of different denominations which were deposited in the Malkhana vide entry No. 2999. On 29/12/1994 he had handed over the sample as well as CFSL Form to Const. Satinder Kumar for taking the same to CFSL Chandigarh vide entry No. 19. He also deposed that so long as the case property remained in his possession it was not tampered with. PW 9 sanjog Singh had registered the FIR Ex. PW 9/a on the receipt of Rucka. PW 10 rakesh Chand SI who was the Investigating Officer, made a detailed statement in regard to the receipt of secret information, its reducing into writing, information to sho and ACP, formation of raiding party, joining of a public witness, apprehension of the appellant-accused and the recovery of contraband from him. He also deposed that the sample along with the parcel of case property, CFSL Form were handed over to SHO and thereafter deposited in the Malkhana. Nothing material could be brought out in his cross-examination. He was recalled for re-examination to prove ex. PW 10/g, the DD entry regarding receipt of secret information. He also deposed that the sample along with the parcel of case property, CFSL Form were handed over to SHO and thereafter deposited in the Malkhana. Nothing material could be brought out in his cross-examination. He was recalled for re-examination to prove ex. PW 10/g, the DD entry regarding receipt of secret information. ( 5 ) AFTER close of the prosecution case, the appellant-accused was examined under Section 313, Code of Criminal Procedure He denied the prosecution case in toto and stated that he had been falsely implicated. He did not lead any evidence in defence. ( 6 ) THE learned Trial Judge vide the impugned judgment, convicted and sentenced the appellant under Section20 of the Act holding that the prosecution had succeeded in proving its case against him beyond any reasonable doubt. ( 7 ) THE short ground on which the impugned order of conviction and sentence gets vitiated and the appellant becomes entitled to benefit of doubt is that the prosecution in this case has miserably failed to prove on record that the CFSL Form was filled up, deposited in the Malkhana and then sent to CFSL Chandigarh along with sample. Learned Counsel for the appellant has relied upon the judgments reported in Prem Pal Singh v. The State of Delhi, 2000 (2) JCC (SC) 521; Sher Singh waliav. State of NCT (Delhi), 87 (2000) DLT585; Soniparshad Soniv. The State, 1997 289 (II) AD (Delhi) 873; Rajinder Kumar @ Titoo v. State (Delhi Admn.), 63 (1996) DLT 721=1997 (IV) AD Delhi 609 and John Bomidela v. The State, 1996 Crl. LJ. 3649. ( 8 ) A perusal of the statements of prosecution witnesses shows that there are material contradictions in regard to the CFSL Form, PW 8 SHO stated that CPSL form was deposited by him in the Malkhana but the entries in the Malkhana register have not been proved to show that CFSL Form was deposited. Even in the 161, Code of Criminal Procedure statement of PW 8 Constable Ram Niwas, MHC, the depositing of Form cfsl was not mentioned. The entry Ex. PW 8/a regarding the despatch of the sample to CFSL Chandigarh also speaks of the sample of parcel only and does not say anything about CFSL Form, PW 5 who had partly investigated the case categorically stated that he had not sent anything to CFSL Chandigarh along with the sample. The entry Ex. PW 8/a regarding the despatch of the sample to CFSL Chandigarh also speaks of the sample of parcel only and does not say anything about CFSL Form, PW 5 who had partly investigated the case categorically stated that he had not sent anything to CFSL Chandigarh along with the sample. Copy of road certificate also was not placed on record. Besides all these omissions on the part of prosecution it is observed that even CFSL report Ex. PW 10/ f speaks about the receipt of one parcel only containing the contraband and does not say anything about CFSL Form or comparison of the seals on the sample parcel with specimen seals on CFSL Form. In the absence of the comparison of the seals on the sample parcel with specimen of the seals it cannot be held that the sample that reached CFSL was not tampered with or the contraband sent to CFSL was the same which was recovered from the appellant. Law is well settled that the prosecution is under an obligation to prove every link in the prosecution case to establish the offence against the accused beyond reasonable doubt. The delivery of the sample of the recovered article to CFSL in the same condition without any possibility of tampering is a vital link which is found to be missing in this case. ( 9 ) IN this ease the prosecution allegations that contraband recovered from the appellant and that which was analysed at CFSL was the same, becomes further doubtful for the reason that according to prosecution witnesses the contraband recovered from the appellant was matiala in colour whereas according to report of CFSL Ex. PW 10/f the sample was of dark Green colour. These two colours are entirely different and as such the absence of CFSL Form and the comparison of seals on the sample by the officers of CFSL assume great significance compelling this court to hold that the case against the prosecution is not proved beyond reasonable doubt. ( 10 ) IN view of the foregoing reasons, this Court is not in a position to hold that the prosecution had succeeded in proving beyond reasonable doubt that the article recovered from the appellant was contraband. The conviction and sentence as awarded to the appellant by the Trial Court, therefore, cannot be sustained. ( 11 ) THE appeal is therefore allowed. The conviction and sentence as awarded to the appellant by the Trial Court, therefore, cannot be sustained. ( 11 ) THE appeal is therefore allowed. The impugned conviction and sentence is set aside and the appellant is acquitted. He is ordered to be released forthwith if not required in any other case. Appeal allowed. --- *** --- .