JUDGMENT (ORAL) M.G. Chaudhari, J. - The appellant Mohd. Salim Salauddin Shaikh has been convicted by the learned Special Judge, Grater Bombay by judgment and order dated 28.5.1992 in Sessions Case No. 5360f 1988 for offence under section 8(c) r/w. Section 21 of the Narcotic Drugs Psychotropic Substances Act 1985 and is sentenced to suffer R.I. for 10 years and to pay a fine of Rs. 1,00,000/ - in default to suffer further imprisonment for one year. Against the said conviction and sentence, the appellant has filed this appeal. 2. According to the case of the prosecution, on 18.2.1988 at about 8.30 p.m. at Senapati Bapat Marg, near Mahim Railway Station, Mahim Bombay, the police party which was on patrolling duty found the appellant-accused moving in suspicious manner. There was a plaster on his right hand. However, there was no sling. Even otherwise also the appellant did not appear to be under any pain due to fracture. He was, therefore, taken to Mahim Police Station and was interrogated. A photographer was called and two panchas were also called. In their presence, the plaster was ripped open. A substance appearing to be charas was found concealed inside the plaster in a polythene paper. That was smelled. It was then measured on a scale. The quantity measured 450 gm. It was seized. Photographs of the process of breaking open the plaster, finding of the concealed polythene bag and its seizue were taken. The panchanama was prepared in respect of the same. Since the material found concealed by the appellant -accused was found to be a prohibited drug, he Was put under arrest. The contraband material was packed, labeled and scaled in the presence of panchas and was deposited with the store keeper at the Mahim Police Station, after making entry in the muddemal register. All these steps since the appellant was found on the road till the muddemal strength of that evidence. Our reasons for the was deposited in the safe custody of the police same are as follows station were taken after informing the Senior appellant was found on the road till the muddemal was deposited in the safe custody of the police station were taken after informing the Senior Police Inspector of the Mahim Police Station and with his prior approval. The statement of- police constable Hanumant Jagtap (P.W. 1) was recorded at the police station and was treated as F.I.R. The appellant was then prosecuted for committing offence under section 8(c) R/w section 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the N.D.P.S. Act) and in due course was tried by the learned Special Judge. 3. The defence of the appellant was one of complete denial of the offence. From his statement it appears that he was about 30 years old and was homeless. He stayed on the footpath opposite Mahim dargah. According to him on 17.2.1988 he was performing a snake show on the road near the dargah and from there he was taken to the police station by a constable and put up in the lock up. He was detained for three days and during that time the police put a plaster on his hand and took photographs and he was falsely implicated in this case. According to him he was innocent. He described the photographs to be false. 4. The prosecution examined some of the police officers who were on patrolling duty and had apprehended the accused, a panch for proving the recovery panchanama, the photographer who had taken the photographs at the time of recovery and the Investigating Officer. The prosecution also tendered F.I.R. and the Chemical Analyser's report regarding the contents of the sample which was sent for analysis and which was allegedly taken out from the contraband material found concerted by the accused when it was recovered. The learned trial Judge accepted the evidence adduced by the prosecution and found the appellant guilty for the offence with which he was charged and convicted him. 5. We have critically examined the evidence in the light of the submission made by Mr. Jamdar the learned counsel appearing for the appellant and Mr. Patil the learned Additional Public Prosecutor. We are not satisfied that the evidence is worthy of acceptance and it would not therefore, be safe to convict the appellant on the strength of that evidence. Our reasons for the same are as follows: 6. P.S.I. Joshi (P.W. 6) was a member of the patrolling party at M.M.C. road Mahim at about 7.30 p.m. on 18.2.1988. P.S.I. Pande and other staff were also with him. At that time the appellant was seen with a constable Jagtap (P.W. 1) on the road. Our reasons for the same are as follows: 6. P.S.I. Joshi (P.W. 6) was a member of the patrolling party at M.M.C. road Mahim at about 7.30 p.m. on 18.2.1988. P.S.I. Pande and other staff were also with him. At that time the appellant was seen with a constable Jagtap (P.W. 1) on the road. He went near them when he was informed by P.W. 1 that the plaster on the hand of the appellant did not appear to be genuine as it was not supported by any sling and his physical appearance so did not give any indication of any fracture on the hand and that the appellant also could not give satisfactory answers. Hence, he was taken to the police station. Hanumant Jagtap (P.W. 1) deposed on that point that he was amongst the police party which was on patrolling duty. P.S.I. Pan de and P.S.I. Joshi (P.W. 6) had also joined the police party. At about 7.00 p.m. he found the accused coming from M.M.C. Road and going towards Mahim Railway Station. He had a plaster on his right hand. However, he and other police officers suspected genuineness of the plaster and the accused also could not give satisfactory reply when questioned. He reported the matter to Joshi (P.W. 6) and on his instruction he took the appellant to Mahim Police Station. According Joshi (P.W. 6) after the appellant was sent to the police station he appraised the Senior Police Inspector of what had transpired and he was directed by his superior officer to take further steps in accordance with the law. Both P.W. 1 and P.W. 6 have then deposed that after some interrogation of the accused at the police station, which revealed concealment of charas inside the plaster, the plaster was ripped open by P.S.I. Pande and there from a polyphone bag containing a substance which appeared to be charas was taken out. It was noticed after ripping open the plaster that there was no injury on the right hand of the appellant on which he had concealed the charas inside the plaster. The plaster was also wet. Photographs of ripping open the plaster were taken. The scale was brought and the contraband was weighed. It was found to be 450 grams. A small quantity was drawn as sample. The plaster was also wet. Photographs of ripping open the plaster were taken. The scale was brought and the contraband was weighed. It was found to be 450 grams. A small quantity was drawn as sample. Three packet were then prepared, one of the sample so drawn, one of the remaining quantity of contraband and one of the broken pieces of the Plaster These packets were sealed and labeled in the presence of panchas who had been called before the plaster was broken open and their signatures were taken. Head Constable Baliram Varang (P.W. 4) who was also present at the police station deposed to the aforesaid facts and to the recovery of the contraband material and seizure thereof and also about preparing three separate parcels. Kasam Shaikh (P.W. 5) who was the panch of recovery panchanama deposed that the plaster, appearing on the hand of the appellant was ripped open in his presence and charas was recovered there from which was concealed under the plaster in a polythene bag. It was smelt and the material was found to be charas. It was weigh. A small quantity was drawn and packed as sample. The photographer took photographs of what had transpired as narrated by him. He purported to prove the recovery panchanama, Ex. 19. Ravindra More (P.W. 3) who had a photo studio at Mahim narrated that at about 8.30 p.m. on that day he was called to the police station and he took 5 photographs of steps taken by the police which led to the recovery of the contraband. He produced photographs at Ex. 13 collectively and negative prints thereof at Ex. 14 collectively. 7. According to the prosecution the sample that was drawn from the contraband at the material time under the recovery panchanama was sent to the Forensic Science Laboratory and Chemical Analyser at Bombay for analysis. The report of the Chemical Analyser is produced at Ex. 22. It shows that charas was detected in, the sample. There is no dispute on the point the Jzaras is a prohibited material under the provisions of N.D.P.S. Act and possession thereof is punishable. 8. Apparently although the above referred evidence tends to show that charas was found possessed by the appellant there arc several infirmities for which the evidence cannot be believed. 9. There is no dispute on the point the Jzaras is a prohibited material under the provisions of N.D.P.S. Act and possession thereof is punishable. 8. Apparently although the above referred evidence tends to show that charas was found possessed by the appellant there arc several infirmities for which the evidence cannot be believed. 9. Neither the panch witness P.W. 5 nor the panch witness P.W.5 panchnama nor evidence of P.C. Jagtap (P.W. 1) who was the complainant shows that the sample drawn allegedly from the material found on the person of he appellant was weighed although the evidence of the Police Officer (P.W. 6) shows that the weighing scale was brought and the entire quantity found with the appellant was weighed. It is admitted by P.S.I. Joshi (P. W. 6) in his cross-examination that the sample was not weighed. The report of the Chemical Analyser however shows that quantity received by him for analysis was 9.5 gram In the First Information Report exh. 6, P.W. 1 had mentioned that at the police station when the appellant was interrogated it was the appellant who had disclosed that he had concealed charas weighing 0.500 kg. Under the plaster however Material when weighed was 450 gms. As against that P.S.I. Joshi (P.W. 6) merely stated that during the interrogation at the police station the concealment of the charas inside the plaster was revealed. He has not explained as to what was the nature of the interrogation and in what manner the fact of concealment was revealed. It does not speak about the appellant having disclosed that information to the police. In his evidence Jagtap (P.W. 1) stated that on being questioned the appellant told that there was no injury on his right hand but he had concealed charas inside the plaster. In our view (P.W. 6) not having deposed about any disclosure having been made in clear terms it would not be safe to rely upon what P.W. 1 has stated. Moreover that circumstances was not also put to the appellant during his cross examination under, section 313 Cr. P.C. as an incriminating circumstance which shows- that even the learned trial Judge had not taken the evidence on that point given by P.W. 1 seriously. In any event the appellant was not given an opportunity to explain that circumstance. Moreover that circumstances was not also put to the appellant during his cross examination under, section 313 Cr. P.C. as an incriminating circumstance which shows- that even the learned trial Judge had not taken the evidence on that point given by P.W. 1 seriously. In any event the appellant was not given an opportunity to explain that circumstance. That apart, when P.W. 1 has referred to the disclosure allegedly made by the appellant that was relating to 500 gm of charas, the panchanama however shows that the quantity was 450 gms. It is interesting to note that although the material is supposed to have been weighed on a scale, the panchanama mentions the weight to be "about 450 gms. "There can, therefore, be no guarantee that the quantity was necessarily 450 gm then as stated earlier, some part of that quantity was taken out by way of simple and separately packed. That quantity was not weighed. The position, therefore, that emerges is that quantity of not more than 450 gms. Was allegedly seized from the appellant and some portion thereof was taken out by way of sample. 10. According to P.S.I. Joshi (P.W. 6) the muddemal articles were handed over to Mahim Police Station for safe custody and proper entries were made in the muddemal register. Those entries according to him were made by P.S.I. Pande. The prosecution has not examined the said P.S.I. Pande although in the list of witnesses he was cited as one of the witnesses to be examined. The prosecution has also not cared to produce the muddemal register or the copies of the entries made therein to establish as to what was deposited and what steps were taken for the protection of the muddemal thereafter. All the P.W. 6 says is that proper entries were made in the muddemal register. That means absolutely nothing. The significance of this circumstance is that one of the three packets in which the pieces of broken plaster were packed was found missing from the store room and was not produced at the trial in evidence. The prosecution has lot offered any explanation for the loss of this incriminating article. That it was incriminating cannot be denied. The significance of this circumstance is that one of the three packets in which the pieces of broken plaster were packed was found missing from the store room and was not produced at the trial in evidence. The prosecution has lot offered any explanation for the loss of this incriminating article. That it was incriminating cannot be denied. The whole basis on which the appellant was taken to the police station was the appearance of the plaster on his hand and the suspicion that was aroused in the mind of patrolling police party. More particularly it is the defence of the appellant that the plaster was put on his hand while he was in custody and the case of the prosecution that he was found with a plaster on his hand and that had aroused suspicion was false. Since the photographs were allegedly taken when the plaster was broken and of the broken pieces thereof, and that had happened in the presence of the panchas and the photographer, it was absolutely necessary to establish the identity of those items by producing the remnants of the plaster which were seized and packed in the presence of panchas before the Court. That was not done. A material piece of evidence thus was not made available by the prosecution and it has failed to give any convincing explanation for that failure. 11. The further circurnstances in this connection pertinent to be noted is that according to the report of the Chemical Analyser, the sample that was received by him was 9.5 gms. The prosecution did not examine either P.S.I. Pande who had stored the muddamal articles at the police station and had made some entries in neither the muddamal register nor the storekeeper to tell as to what steps for protecting the muddamal had been taken at the police station. The prosecution did not examine the constable with whom the sample was sent to the Chemical Analyser. The possibility therefore, of the muddamal having been tampered with while in custody of the police station cannot be ruled out particularly having legard to the loss of one of the material articles seized. 12. The prosecution did not examine the constable with whom the sample was sent to the Chemical Analyser. The possibility therefore, of the muddamal having been tampered with while in custody of the police station cannot be ruled out particularly having legard to the loss of one of the material articles seized. 12. That there was possibility of tampering with the sample or the remaining quantity of contraband allegedly seized from the appellant further becomes pronounced when we have regard to the evidence of Prakash Bhivandkar (P.W. 2) who was attached to Mahim Police Station as P.S.I. in the month of 1989. At the time when he gave evidence he was P.I., C.B.I., Bombay. According to him on 29.6.1989 the sealed muddamal packet in P.C.R. No. 28/88 i.e. the present crime, was opened before two independent panchas and Special Metropolitan Magistrate. That was done for purpose of making inventory of the narcotic muddamal for the purpose of destruction in accordance with the Government circular No. 318 of 86 and section 110 of Customs Act and section 452 of Cr. P.C. 1973. He deposed that after opening the muddamal packet a representative sample of about 5 gms. was taken out and separately packed and sealed and the rest of the muddeamal was repacked, relabeled and resealed under a panchanama at Ex. 8. It was admitted by consent under section 294 of the Cr. P.C. He also produced a certificate issued by Special Metropolitan Magistrate, Greater Bombay, and exh. 9. His cross examination shows that when the muddeamal packet was opened weight of muddamal was not done and whatever weight was earlier shown was taken to be the correct weight. He does not explain it in his evidence as to what record he was referring to when he stated that the weight earlier shown was taken to be the correct weight. It is surprising as to how after opening the packet in the presence of Special Metropolitan Magistrate it was not weighed. That lapse cannot be ignore lightly because the muddeamal was material for the instant case and the appellant had yet to be tried and provided material evidence against the appellant What however the evidence of his witness and exh. 9 make it clear is that as mentioned in the certificate issued by the Special Metropolitan Magistrate, exh? That lapse cannot be ignore lightly because the muddeamal was material for the instant case and the appellant had yet to be tried and provided material evidence against the appellant What however the evidence of his witness and exh. 9 make it clear is that as mentioned in the certificate issued by the Special Metropolitan Magistrate, exh? 9 after the inventory was made the contraband in the present case as certified by him was as described below: "The contraband muddemal i.e. 450 gms of charas is correct as per panchanama dated february 18, 1988.” That however, is totally inconsistent with the case of the prosecution. Now as already noted the evidence of the prosecution witnesses is that at the very time when the contraband was seized its weight was about 450 Gms Some portion thereof was admittedly taken as sample and separately packed. Evidence of Bhivandkar (P.W. 2) and the certificate issued by the Special Metropolitan Magistrate, Exh. 9 although do not mention that the two packets were, together weighed and the total weight was 450 gms even assuming that it was so done the weight could not be 450 gms., because as seen from the report of the Chemicals Analyser, Exh. 22 he had received the quantity of 9.5 Gms for analysis. The report of the Chemical Analyser is dated 20.4.1988, which was much prior to the date on which the inventory of the muddamal was made by the Special Metropolitan Magistrate vide certificate Ex. 9 on 29.6.1989. Obviously therefore, after 9.5 gms were taken out from the total quantity of 450 ms. the balance quantity could not weigh full 450 gms as mentioned in exh. 9 on a later date. As already noted the weight of the sample drawn at the time of seizure was not mentioned anywhere and was left vague. When we put the three circumstances gather namely that the sample drawn at the time of seizure was not weighed, that no evidence is produced to show as to how the muddamal was protected till the sample was sent to the Chemical Analyser which becomes important as one of the packets was found missing and the quantity at the time of inventory was taken to be 450 gms., a grave doubt arises as to the identity of the seized material. If the quantity is taken as 450 gms that was seized then with the addition of the quantity of sample seized by the Chemical Analyser, the total quantity works out to 459.5 gms. That is inconsistent with the case of the prosecution and makes it unreliable. 13. Another suspicious circumstance is that the entries in the proforma of the First Information Report Ex. 21 appears to be tampered. We have perused the original document Exh. 21. It is clearly seen that at the top against the entry "date and hour when offence was reported" the date is originally typed as 18.12.1989. The offence in the instant case was allegedly committed on 18.2.1988. However some one has scored figure 1' from the figure 12' in the above entry so as to make it look 2' instead of 12'. However, the mention of the year as ‘89' remains the same. The learned Prosecutor tried to argue that it maybe the style of writing of the person as a result of which the figure appears as 9' instead of 8'. We have carefully seen the figure with the aid of magnifying glass and we find no substance in this argument. Figure 8' has been put by the same person in the date, which reads as 18' and the first figure of the year (i.e. 88) which is also 8'. That figure is also mentioned in the next column of the preformed. At all these places 8' is written very clearly and not in the manner as it appears as the 2nd figure of the year mentioned in the date which is 9'. Then in the first column where "date and hour of occurrence" is to be mentioned the date originally written was 18.12.1988 at about Here again we find that the figure 1' at both the places where the date and month are mentioned i.e. 18' and 12' has been struck out in ink. The prosecution has not explained through any witness as to who had tampered with this figure and under what circumstance and when. The prosecution has not explained through any witness as to who had tampered with this figure and under what circumstance and when. Assuming that a genuine mistake was comminuted in mentioning the date of occurrence as 18.12.1988 instead of 18.2.1988 there was no reason as to how the year came to be mentioned as 89' above in that entry and why the figure 1' reading as 12' against the entry of date and hour of occurrence had been scored out in ink. That givesrise to the suspicion that the muddemal seized and the sample analysed could not be the same particularly as the possibility of tampering is not ruled out. It is pertinent to note that there is no date below the signature of the Sub-Inspector of Police at the bottom neither of preformed nor at the bottom of the endorsement on the reverse to ensure that it related to the instant case. Although at the bottom of the proforma there is a rubber stamp bearing date 19.2.1988 and initials appear scribbled above the stamp that would not necessarily mean that the proforma was prepared on 18.2.1988. It is also interesting to note that P.W. 1 had in his statement which was treated as F.I.R. mentioned the time when the appellant was apprehended and about his having been taken to the police station and within a short time the contraband having been recovered from him. Yet in the proforma, Exh. 21 the time of occurrence is not mentioned and the entry only reads as "at about" without ,any time being mentioned thereafter. 14. Turning to the report of the Chemical Analyser Exh. 22 it is accompanied by a covering letter dated 20.4.1988 sent by the Assistant. Chemical Analyser to the Senior Inspector of Police, Mahim Police Station enclosing his report in connection with the sample received in P.C.R. 28 of 1988. In that letter the Chemical Analyser has mentioned thus: "Your letter No. 3828 dated 5.4.1988 forwarding one sealed packet, seal intact and as per copies sent, label PCR 28/88". He was clearly referring to the letter of the Mahim Police Station dated 5.4.1988. As against that Joshi (P.W. 6) has stated that he had prepared the forwarding letter to the C.A. on the same day, which would mean 18.2.1988. The letter received by the Chemical Analyser was thus different than the forwarding letter that was prepared by this witness. He was clearly referring to the letter of the Mahim Police Station dated 5.4.1988. As against that Joshi (P.W. 6) has stated that he had prepared the forwarding letter to the C.A. on the same day, which would mean 18.2.1988. The letter received by the Chemical Analyser was thus different than the forwarding letter that was prepared by this witness. The prosecution has neither produced the letter so prepared by him on 18.2.1988 nor has explained as to why it was not produced. Prosecution has also not produced the letter No. 3828 dated 5.4.1988 that in fact was received by the Chemical Analyser along with the sample. That raises a serious doubt as to whether the sample sent was the same as was allegedly pertaining to the contraband seized from the appellant on 18.2.1988. It also cannot be overlooked that there was a delay in forwarding the sample to the Chemical Analyser. The explanation given by the Investigation Officer that there is a practice to send samples in lots appears to be lame inasmuch as he has not explained as to by whom and where such procedure has been laid down or that during the interregnus there was not sufficient contraband available so that a lot could not be sent earlier. The sample was collected on 18.2.1988 and it was sent on 5.4.1988. In the background of the above-discussed circumstances this circumstance strengthens the possibility of tampering of the sample. The above circumstances lead us to the conclusion that the prosecution has failed to satisfactorily connect the finding of charas in the sample analysed by the Chemical Analyser with the material allegedly seized from the appellant. It cannot, therefore, be held that the prosecution has succeeded in proving that the appellant was possessed of a prohibited substance so as to render him punishable for its possession. Even though P.W. 1 and the panch witness have stated that what ever recovered was charas that only was their opinion and in the absence of anything stated by them as to how they could be certain that it was charas that cannot be regarded as a conclusive opinion. Added to above circumstances it is clear from the evidence of P.W. 6 that no statement of the photographer had been recorded. Added to above circumstances it is clear from the evidence of P.W. 6 that no statement of the photographer had been recorded. Even assuming, therefore, that some photographs were taken by the photographer P.W. 3, these are not sufficient to establish that what was found was charas. In the light of the above discussion we must hold that the prosecution has failed to prove offence against the appellant beyond reasonable doubt. In this connection as submitted by the learned Counsel for the appellant, the non- compliance with the requirement of section 50 of the N.D.P.S. Act cannot be lightly brushed aside. Here is a case where the manner in which the investigating machinery and the prosecution have acted can be said to have caused serious prejudice to the appellant. His conviction thus cannot be sustained. 15. In the result, the appeal is allowed. The conviction and sentence of the appellant is set aside and he is acquitted of the offence under section 8(c) r/w. section 21 of the N.D.P.S. Act, 1985. The appellant-accused be released forthwith unless required in connection with any other case. Fine, it any has been paid shall be refunded to the appellant. Appeal allowed.