SONI PERSHAD SONI v. STATE OF DELHI — 1997 DIGILAW 49 (DEL)

S. K. MAHAJAN ( 1 ) BY judgment dated 11/12th October, 1993 , the appellant was convicted by the Additional Sessions Judge for his having committed an offence punishable under Sections 20/61/85 of the Narcotic Drugs and Psychotropic Substances Act (in short referred to as "the Act") and sentenced to undergo rigorous imprisonment for ten years and fine of Rs. 1,00,000. 00 In default of the payment of fine, the appellant was further to undergo rigorous imprisonment for two years. Aggrieved by the judgment of the appellant of the Additional Sessions Judge, the appellant has filed this appeal. The facts in short relevant for deciding this appeal are ( 2 ) THAT on receipt of a secret information that one person would be coming at about 05. 00 p. m. near the garbage dumping place at Shyama Prashed Mukherjee Marg with charas and if a raid is organised, he could be apprehended, SI R. S. Yadav, Chowki In-charge Church Mission Road, PS Lahore Gate, Delhi informed the SHO, Lahor Gate about the same and organised a raiding party by associating some police officials and proceeded to the place of occurrence. A few public persons were asked to join the raiding party, however, except one Braham Kumar all other persons did not agree to join. At about 5. 10 p. m. on the pointing out of the informer the appellant was apprehended, he was informed the reasons for his detention and was further told that in case he wanted to search any of the police officials, he could do so. Notice under Section 50 of the Act was given to the appellant informing him that in case he desired his search could be conducted before a Gazetted Officer or a Magistrate but the appellant is stated to have declined to be searched before either a Gazetted Officer or a Magistrate. Investigating Officer thereafter conducted the search of the appellant as well as of the bag he was holding and on checking of the bag on his shoulder, a cloth bag of yellow white colour containing polythene packets filled with charas were recovered. On weighing, the narcotic drug was found to be two kilograms. Investigating Officer thereafter conducted the search of the appellant as well as of the bag he was holding and on checking of the bag on his shoulder, a cloth bag of yellow white colour containing polythene packets filled with charas were recovered. On weighing, the narcotic drug was found to be two kilograms. 200 grams of charas was separated as sample and was converted into a parcel and the rest of the charas was packed in the same manner into other parcel in the same bag which was held by the appellant. The sample as well as bag were thereafter sealed and one of the seals is stated to have been given after use to the public witness. Form CFSL was also filled at the spot and both the parcels as well as CFSL form were then handed over to the SHO for safe custody. The CFSL form and the sample was alleged to have been sent to the laboratory and on receipt of the report the challan was filed in Court. Learned Additional Sessions Judge after recording evidence held the appellant guilty of the offence punishable under Sections 20/61/ 85 of the Act and sentenced him to undergo RI for ten years and also imposed a fine of Rs. 1,00,000. 00 ( 3 ) THE main argument of learned counsel for the appellant assailing, the judgment is that there was no evidence on record to show that the CFSL form had been deposited with the Moharrir Malkhana and was sent along with the sample to the laboratory. The condition is that as the vital link from the time of filling of CFSL form till the time the sample reached the a laboratory was missing, the possibility of the sample having been tampered with cannot be ruled out. Which, according to the counsel, itself was aground of acquittal. ( 4 ) IT is not disputed by either the appellant or the prosecution that CFSL from was filled up at the spot. ASI Ranbir Singh appeared as Public Witness-5 and has stated that the CFSL form was filled in. SI Rajender Singh was in-charge of the police post at Church Mission Road, Delhi who after recording the secret information received by him had sent it to the SHO, appeared as Public Witness-7 before the trial Court and stated that he had filled up the CFSL form. SI Rajender Singh was in-charge of the police post at Church Mission Road, Delhi who after recording the secret information received by him had sent it to the SHO, appeared as Public Witness-7 before the trial Court and stated that he had filled up the CFSL form. He also stated that he had handed over the property including the parcels arid the CFSL form to the SHO. Inspector Rajender Singh who was the SHO, PS Lahore Gate at the relevant time appeared as Public Witness-2 and stated that he had affixed his seal both on the sample as well as on the form CFSL. It is, therefore, clear that CFSL form was filled at the spot and seals were also affixed thereon. However, Public Witness-3, Moharrir Malkhana when appeared as a witness before the Additional Sessions Judge did not speak a single word about the CFSL form having been deposited with him. His evidence may be reproduced as under: - "on 1. 6. 90, the SHO had deposited with him two packets sealed with the seals of RSI and RS which I entered at S. No. 1342. On 4:6. 90 through Constable Kuldip Singh vide RC. 67/21, the sample was sent to the CFSL. Copy of the entry is exhibit Public Witness-3/a. " ( 5 ) THE witness, therefore did not say that (he CFSL form had also been deposited by the SHO with him along with the sample nor did he say that the CFSL form was handed over to Constable Kuldip Singh along with the samples for sending to the CFSL. Constable Kuldip Singh appearing as Public Witness-7 also did not say about his having collected the CFSL form the Moharrir Malkhana. All he,says is that on 4. 6. 1990 he had taken one sealed packet sealed with the seal of RS and RSI vide RC. No. 67/21 and had deposited the same with the CFSL without the same being tampered with. Even the RC vide which the sample was sent to the CFSL has not been produced. A perusal of the RC could have shown whether the CFSL form had been sent along with the samples or not. No. 67/21 and had deposited the same with the CFSL without the same being tampered with. Even the RC vide which the sample was sent to the CFSL has not been produced. A perusal of the RC could have shown whether the CFSL form had been sent along with the samples or not. Entry of the Malkhana register, which has been produced on record, also did not mention either deposit or dispatch or the CFSL form to and from Malkhana ( 6 ) IN view of the evidence discussed above, it is clear that the Vital link from the time of the filling up of the CFSL form till the time the sample reached the laboratory was missing. The CFSL form had the same seals which were affixed upon the sample and a comparison of the same would have shown whether the seal on the samples had been tampered with or not. There is no evidence about missing of the CFSL form and except the oral statement of some of the witnesses that the CFSL form was filled up at the spot, there is no evidence as to what had happened to the same. ,it was the duty of the prosecution to prove to the satisfaction of the court that the packet containing charas remained intact during the time it was in the custody of the police and the possibility of the samples, therefore, having been tampered with during the time it remained in the custody of the police cannot be ruled out. Importance of CFSL form to prove that the sample remained intact and was not tampered with has been repeatedly recognised by this court as well as by the Supreme Court in catena of cases. It will be a futile exercise to reproduce all those decision. However, I must refer to the judgment of the Supreme Court reported as State of Rajasthan Vs. Daulat Ram. 1980 Chandigarh Criminal Cases 83 wherein it was held that the prosecution having failed to prove all the links starting from the seizure of the sample till the same reached the hands of the public analyst so as to make the Court conclude that the seals remained intact throughout, the prosecution will be deemed to have not proved beyond reasonable about that the narcotic drug seized was the same which had been sent to the public analyst. As already stated it was for the prosecution to prove that the sample remained intact during the time it remained in the custody of the police and the CFSL form was the vital piece of evidence to prove the same. The prosecution, therefore, having failed to discharge the onus, this itself, in my opinion, is sufficient to give benefit of doubt to the appellant. ( 7 ) THOUGH number of other pleas have been raised by Mr, Thakur, however, for the reasons that I intend to give benefit of doubt to the appellant on account of the prosecution having failed to discharge the onus which was heavily upon it, I need not dwell myself upon the other arguments advanced by Mr. Thakur. ( 8 ) FOR the foregoing, I accept this appeal and giving the benefit of doubt to the appellant, acquit him of the offence of which he has been charged and direct that unless required in any other case, the appellant be released forthwith. ( 9 ) BEFORE parting, I must place on record my appreciation for the service rendered by Mr. P. Thakur, Advocate, amicus curiae in this case who very ably argued this appeal on behalf of the appellant.