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1995 DIGILAW 253 (DEL)

HABIB v. STATE OF DELHI

1995-03-16

VIJENDER JAIN, VUENDER JAIN

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VIJENDER JAIN ( 1 ) THE appeal has been filed on behalf of appellant against the judgment and sentence dated 1. 2. 1993 passed by the learned Additional Sessions Judge by which the Trial Court convicted and sentenced the appellant to undergo rigorous imprisonment for 10 years with fine of Rs. 1 lac and in default of payment of fine to undergo rigorous imprisonment of 2 years. ( 2 ) BEFORE I advert to the present appeal, it is important to note that on 27. 10. 1988, the date of alleged seizure and recovery from the present appellant, on the same date and at the same place, recovery was made from the appellant as well as one Mohd. Shafiq. Mohd. Shafiq has been acquitted by another Additional Sessions Judge vide his order dated 25. 9. 1993. ( 3 ) MR. SANJIV Kumar, learned counsel for the appellant has argued that the likelihood of the case property being tempered cannot be ruled out in the present case because of the failure of the prosecution to prove and established beyond doubt that the CFSL form was prepared and sent to Moharrar Malkhana. It has also been argued that the case of the prosecution is silent on the fact that whether the CFSL form was sent to the CFSL Laboratory along with the samples as alleged by the prosecution. Learned counsel for the appellant has contended that it was the duty of the prosecution to prove beyond reasonable doubt that the samples which were allegedly taken, were duly sealed and the same samples have been got analysed from the expert of the CFSL. He has urged that no evidence to show that the CFSL form which was alleged to have been filled at the spot and specimen seal was affixed, had been at all deposited with the Moharrar Malkhana. It has also been urged that no entry to this effect has been made in the Register of Moharrar Malkhana that the said CFSL form was deposited with the said Moharrar or that the same was despatched at the time of sending the samples for analysis of CFSL Laboratory. Therefore, the learned counsel has contended that there is no evidence of the prosecution to show that the goods recovered from the appellant was in fact charas . Therefore, the learned counsel has contended that there is no evidence of the prosecution to show that the goods recovered from the appellant was in fact charas . He has urged that the possibility of the samples being tempered with in the present case cannot be overlooked as the link evidence which will complete the chain that the samples were duly sealed at the spot and the same had reach the Malkhana and also reached untempered for chemical analysis at CFSL Laboratory. In this connection, the learned counsel for the appellant has relied upon a Division Bench judgement of this Court in Amarjit Singh and anr. v. State 1995 JCC 91 in which it was held :- "we are afraid that such an inference cannot be drawn in the present case from the contents of the entries in the Malkhana Register. In the entry proved from the said Register there is no mention that either the CFSL form has been deposited or the same has been sent to CFSL along with samples. So, the case of Francis (supra) is distinguishable on facts. It was for the prosecution to prove that not only the case property was duly sealed with particular seals and was duly deposited in the Malkhana untampered but it was also incumbent upon the prosecution show that the samples which had been duly sealed remained intact till they reached the office of the CFSL. In proving these facts it was necessary for the prosecution to prove that the CFSL form containing the specimen seals which was duly filled at the time of taking of the samples also remained intact and it reached the office of the CFSL along with the samples. Unfortunately for the prosecution there is not an iota of evidence to show that the CFSL form, which was allegedly filled in at the time of taking of the samples, was sent in the same condition to the office of the CFSL. We do not know as to where the said particular CFSL. We do not know as to where the said CFSL form remained during all this period. " ( 4 ) LEARNED counsel forthe appellant has also relied upon the case of Safiullah v. State 49 (1993) DLT 193. ( 5 ) ON the other hand, Mr. We do not know as to where the said particular CFSL. We do not know as to where the said CFSL form remained during all this period. " ( 4 ) LEARNED counsel forthe appellant has also relied upon the case of Safiullah v. State 49 (1993) DLT 193. ( 5 ) ON the other hand, Mr. R. D. Jolly, learned counsel for the State, has contended that the prosecution has proved the case beyond any doubt. Mr. Jolly has also contended that Public Witness-3, Head Constable Chander Bhan, has deposed before the Court in his testimony that he had taken the samples sealed with the seal of MBM and CFSL form vide R. C. No. 113/24 and had deposited the same at CFSL without it being tempered. Mr. Jolly, on the basis of the testimony of Public Witness-3, has contended that this Court will take into consideration the totality of evidence led on this aspect and until and unless there is a strong presumption which creates a doubt in the mind of the Court, the Court will not assail the finding of the sentence and conviction recorded by the learned Additional Sessions Judge. Mr. Jolly has contended that in none of the authorities cited by the learned counsel for the appellant the facts were similar as in this case. Mr. Jolly has also urged that keeping in view the totality of the evidence, the overwhelming evidence on the question of recovery and the testimony of Public Witness-1, Public Witness-3 and Public Witness-5, it cannot be said that there was any likelihood of tampering with the samples. ( 6 ) I have given my careful consideration to the arguments advanced by the learned counsel for both the parties. In this case, public witness, Tirath Ram, has not supported the prosecution version and has been declared hostile, therefore, in view of the stringent punishment envisaged under the provisions of NDPS Act, the prosecution has to prove its case beyond doubt. Public Witness-1, Shri M. D. Mehta, SHO, though has deposed in his testimony that CFSL form was filled at the spot, he has not stated that the same was deposited with Moharrar Malkhana. Even R. C. No. 113/ 21 was not produced before the Court to dispel the doubt which has crept in the version of the prosecution. Public Witness-1, Shri M. D. Mehta, SHO, though has deposed in his testimony that CFSL form was filled at the spot, he has not stated that the same was deposited with Moharrar Malkhana. Even R. C. No. 113/ 21 was not produced before the Court to dispel the doubt which has crept in the version of the prosecution. Even the Register of Moharrar Malkhana pertaining to the deposit and despatch of the seized goods is silent about the receipt of CFSL form or it being sent to CFSL Laboratory. In this connection learned counsel for the appellant has quoted from the case of Safiullah v. State (supra) 49 (1993) DLT 193 in which it was held ". . . . . . . . According to the High Court Rules and Orders Chapter 18 (part-B) Clause 8 and 3 in all cases of transmission of article to the Chemical Examiner a letter of invoice giving full description of article sent should be despatched. According to Clause 11 proper custody of articles throughout the various stages of inquiry must be established and traced. But in the present case ASI Om Prakash appearing as P. W. 7 does not say anything about the filling of the CFSL form but says that he deposited those sealed parcels in the Malkhana at Police Station Mehruali. Moharrar Malkhana appearing in Court nowhere stated that he sent th, articles to the Chemical Examiner along with the CFSL form. This aspect assumes importance particularly when the seal used was not handed over to an independent witness. The seal after use were kept by the police officials themselves therefore the possibility of tampering 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 tampering of the sample. 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 tampering 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 v. 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 CFSL form containing the speciment of seal is not deposited in the Malkhana together with the sealed parcel. This assumes importance particularly when the SHO 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 tampering with the seals and the contents of the parcel. These observations made by Mrs. Santosh Duggal, J. aptly apply to the facts of this case. " ( 7 ) I am of the opinion that observation of the learned Judge in Safiullah v. State s case (supra) as well as of the Division Bench leaves no reason for any doubt in this regard. The evidence of Public Witness-1 and Public Witness-5 nowhere state that CFSL form was deposited with Moharrar Malkhana. There is no evidence that the said form was sent to CFSL. Even R. C. No. 113/21 was not produced in the Trial Court. ( 8 ) THEREFORE, in the facts and circumstances of this case and keeping in view that the date of occurrence is 27. 10. 1988 the appeal can be disposed of on this ground alone, I need not go to the other contentions raised by the learned counsel for the appellant. The result, therefore, is that this appeal is allowed. The appellant is given benefit of doubt and acquitted. He will be set at liberty, if not wanted in any other case or proceedings.