Dalveer Bhandari, J. ( 1 ) THIS appeal is directed against the judgment of learned Additional Sessions Judge, Delhi dated 27. 2. 1978 by which the accused appellant was convicted and sentenced to rigorous imprisonment for 2 years for the offence under Section 402, Indian Penal Code and to 1 year under Section 25 of the Arms Act. It may be pertinent to mention that the appeal was admitted on 11. 4. 1978 and at that time, Shri Bawa Gurcharan Singh, Advocate, appeared for the appellant. He unfortunately expired. This appeal has been on Board for quite some time and no one has appeared for the appellant. Therefore, for Court appointed Shri Naveen Thakur, Advocate, as Amicus Curiae in this case. ( 2 ) BRIEF facts which are necessary to dispose of this appeal are recapitulated as under. ( 3 ) THE appellant, Des Raj, alongwith Rambir @ Ranga, Jagdish @ Jaga, and Sat Pal @ Satti were allegedly found in possession of prohibited arms at Khatta, low lying area at Motia Khan. Secret information was received by the Inspector Gian Chand, then S. H. O. of Police Station Paharganj that the aforesaid accused would be collecting there Gian Chand alongwith the police party raided the spot at 8. 30 p. m. and they spotted in all seven persons sitting on a heap of stones in the midst of bushes. On seeing the police accused persons and their companions tried to escape but they were overpowered and apprehended. ( 4 ) APPELLANT, Des Raj was carrying a packet in red towel under his arm pit. It contained one Sabal (an iron rod with a pointed tip) Ex. P. 9, one iron cutting saw, Ex. P. 4, and one Kateera (iron cutter ). These articles were taken into possession by S. I. Shiv Narain vide Ex. Public Witness 7/a. The memo was attested by a public witness Ravinder Kumar, Public Witness 7 and Mohd Attique, Public Witness 8. On personal search one country- made pistol Ex. P. 1 was recovered from Des Raj. Besides that four small live cartridges Ex. P. 2/1-4 were recovered from right side pocket of the appellant s pant. Similarly other weapons were recovered from the other accused who were there. ( 5 ) DURING the course of investigation S. I. Shiv Narain sent ruka Ex. Public Witness 1/a at about 11. P. 1 was recovered from Des Raj. Besides that four small live cartridges Ex. P. 2/1-4 were recovered from right side pocket of the appellant s pant. Similarly other weapons were recovered from the other accused who were there. ( 5 ) DURING the course of investigation S. I. Shiv Narain sent ruka Ex. Public Witness 1/a at about 11. 15 p. m. for registration of a case under Section 399, IPC. Formal FIR No. 707 was registered on its basis. Later on S. I. Shiv Kumar, ASI Gurmal Singh, ASI Shiv Narain and S. I. Baldev Singh sent rukas Ex. Public Witness 1/c, Ex. Public Witness. 1/e, Ex. Public Witness 1/d and Ex. Public Witness 1/i on the basis of which formal FIRs 708, 709, 710 and 711 were recorded at 12. 30 a. m, 1. 15 am. , 2. 10 a. m. and 2. 40 a. m. respectively. After completion of the investigation all the accused and their companions were arrested and later on challaned. ( 6 ) THE prosecution examined ten witnesses. Police officials were examined alongwith the two independent witnesses. The prosecution evidence proved the case of the presence of the accused with weapons at the spot. All the three accused have totally denied the prosecution version and have urged that they were arrested by police from their respective houses and brought to the Police Station, Pahar Ganj. They have been falsely implicated in this case, as all of them belong to Sansi community, which is a criminal tribe. ( 7 ) DES Raj and Rambir accused have examined a witness each in defence. According to Asha Nand, DW 1 he knew Des Raj accused as being his neighbour at Kasturba Nagar and he used to ply cycle rickshaw at the relevant time. He heard noise at about 4 p. m. and he saw that Des Raj accused was being taken by the police to the police station despite protest by the former. According to Amar Singh, DW 2, Rambir @ Ranga was arrested from his house at 5 p. m. and was whisked away in police jeep. He later on learnt that the accused had been falsely involved in this case. According to Amar Singh, DW 2, Rambir @ Ranga was arrested from his house at 5 p. m. and was whisked away in police jeep. He later on learnt that the accused had been falsely involved in this case. ( 8 ) ACCORDING to the prosecution the dacoity was to be committed at Wazirpur/ashok Vihar near Deep Cinema and the accused were to board a truck which was supposed to come to the place of occurrence i. e. Khatta at Motia Khan, for proceeding to Ashok Vihar, which was at a distance of about seven/eight miles from the Khatta. The learned Additional Sessions Judge has observed that there is no direct or circumstantial evidence on record to suggest that they intended to commit dacoity at Wazirpur/ashok Vihar. But the learned Additional Sessions Judge came to the conclusion that the circumstances established in a case may lead to the inference that such an agreement for committing dacoity existed between the accused. The learned Additional Sessions Judge further observed that after all one cannot be oblivious to the fact that none of the accused gave any explanation for his presence at that lonely place at the dead of night and their bare denial fails to carry conviction. ( 9 ) ON the analysis of the evidence on record the learned Additional Sessions Judge came to the conclusion that the prosecution evidence being fairly consistent and uniform and there being virtually nothing on the record to suggest that the police had any motive or animus to falsely implicate any of the accused persons, can be safely acted upon to return a verdict of guilty against the accused persons of charge under Section 402, IPC. The appellant Des Raj alongwith Ram Bir were also found guilty of offence under Section 25 of the Arms Act. ( 10 ) IN appeal Mr. Naveen Thakur, learned Amicus Curiae submitted that conviction of the appellant under Section 402, Indian Penal Code as well as under Section 25 of the Arms Act is totally unsustainable. ( 11 ) LEARNED Amicus Curiae placed reliance on the judgment of the Supreme Court in Chaturi Yadav and Others v. State o Bihar, 1979 0 SCC (Cr) 502. Naveen Thakur, learned Amicus Curiae submitted that conviction of the appellant under Section 402, Indian Penal Code as well as under Section 25 of the Arms Act is totally unsustainable. ( 11 ) LEARNED Amicus Curiae placed reliance on the judgment of the Supreme Court in Chaturi Yadav and Others v. State o Bihar, 1979 0 SCC (Cr) 502. In a case which is some what similar with the facts of the instant case, their Lordships of the Supreme Court observed that "the mere fact that these persons wee found at 1 a. m. does not, by itself, prove the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The SupremeCourt further held that the possibility that the appellants may have collected for the purpose of murdering somebody or committing other offence cannot be safely eliminated". However, the Supreme Court held that there is no legal evidence to support the charge under Sections 399 and 402 against the appellants. In the instant case the appellant alongwith other accused had assembled at 10. 15 p. m. , but the purpose of their assembling has not been shown by any of the prosecution witnesses on record, and assembling of some persons with arms cannot lead to conviction under Section 402 IPC. ( 12 ) LEARNED Amicus Curiae has also relied on a judgment of the Patna High Court delivered in the case of Brijlal Mandal and Others v. State of Bihar, 1978 Cri. L. J. 877. The Court in this judgment observed that "it is quite clear that no conviction under Section 399 or 402 can be recorded simply on the basis that a certain number of persons, some being armed, are apprehended at the platform of a railway station. "the prosecution has to establish that they assembled there for committing dacoity or were preparing to commit dacoity. ( 13 ) LEARNED Amicus Curiae also placed reliance on the judgment of this Court in Kali Charan @ Bachhu and Others v. State (Delhi Administration), 1984 Chandigarh Criminal Cases 510 (HC ). In this case also the Court observed that the mere presence of some persons with arms at a place could not necessarily lead to the inference that they had designs to commit dacoity anywhere. At the most they could be charged for being in possession of arms. In this case also the Court observed that the mere presence of some persons with arms at a place could not necessarily lead to the inference that they had designs to commit dacoity anywhere. At the most they could be charged for being in possession of arms. ( 14 ) LEARNED Amicus Curiae submitted that the prosecution has totally failed to establish the purpose for which the accused had assembled at that spot. He submitted that according to the defence witnesses these accused were lifted from their respective houses and have been falsely implicated in this case. Learned Amicus Curiae also submitted that while appreciating the evidence the Court has to give equal treatment to the prosecution and the defence witnesses. In support of his contention, he placed reliance on the judgment of the Supreme Court in Dudh Nath Pandey v. State of Uttar Pradesh, (1981) 2 SCC 166 . Their Lordships of the Supreme Court held in this judgment that "defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often they tell lies but so do the prosecution witnesses. "learned Amicus Curiae also placed reliance on another judgment of the Supreme Court in the case of Kaur Sain v. the State of Punjab, (1974) 3 SCC 649 . In this case also their Lordships of the Supreme Court observed that the presumption that defence witnesses always lie and prosecution witnesses always tell the truth is neither justified nor proper. According to the Amicus Curiaehe learned Additional Sessions Judge has seriously erred in not placing any reliance on the testimony of the defence witnesses. ( 15 ) LEARNED Amicus Curiae further submitted that conviction under Section 25 of the Arms Act is also unsustainable. He submitted that no CFSL form was filled up. In support of his contention he placed reliance on a judgment of this court delivered in Lalman v. State, 75 (1998) DLT 224. The Court observed in this judgment that the "cfsl form is a valuable safeguard to ensure that the sealed sample is not tempered with till its analysis by the CFSL Analyst. In support of his contention he placed reliance on a judgment of this court delivered in Lalman v. State, 75 (1998) DLT 224. The Court observed in this judgment that the "cfsl form is a valuable safeguard to ensure that the sealed sample is not tempered with till its analysis by the CFSL Analyst. The CFSL form should not only be prepared and sealed by the officer making the seizure at the place where the case property is seized from the accused, it should also be sealed by the SHO to whom the sample and case property is handed over and the same should accompany the sample sent to the CFSL. The purpose of specimen seal is to compare the same with the seals on the sample parcels meant for analysis and report by CFSL to ensure that the samples are not tampered with. In the absence of CFSL form, it cannot be said that the purity of the sample remained intact. Benefit of its absence should go to the accused. " Learned Amicus Curiae placed reliance on another judgment of this court reported as Rajan Ali v. The State (Delhi Administration), 1999 III AD (Cr.) DHC 457. In this case neither the CFSL form was deposited in the Malkhana nor sent alongwith the sample parcel to the office of CFSL. It is true that a line in the cyclostyled report of the CFSL report does say that one sealed parcel was received with the seals of BS and DPS as per specimen enclosed but in view of the aforesaid evidence much significance cannot be attached to it as the same appears to have been made in a mechanical and routine manner. In the absence of the link evidence to the above effect the possibility of the sample being tampered with cannot be ruled out altogether. The Court relied on several other judgments in support of its finding. ( 16 ) LEARNED Amicus Curiae also submitted that the prosecution has failed to examine the Muharir of Malkhana in this case. He placed reliance on the judgment of the Supreme Court in Nand Kishore v. State of Haryana, 1998 0 SCC (Cr) 568. Their Lordships of the Supreme Court in this case held that "neither the Investigating Officer nor Public Witness 2 have stated that they had kept the weapon in the Malkhana after properly securing and sealing the same. He placed reliance on the judgment of the Supreme Court in Nand Kishore v. State of Haryana, 1998 0 SCC (Cr) 568. Their Lordships of the Supreme Court in this case held that "neither the Investigating Officer nor Public Witness 2 have stated that they had kept the weapon in the Malkhana after properly securing and sealing the same. Neither the Muoharir Malkhana was examined nor even his affidavit filed by the prosecution to testify to the safe custody of the recovered weapon. " In the instant case also neither the Muharir of Malkhana was examined nor his affidavit filed by the prosecution to testify to the safe custody of the recovered country made pistol. ( 17 ) LEARNED Amicus Curiae also submitted that there has been a delay of 12 days in sending the parcel from Muharir Malkhana to CFSL. He submitted that this delay is fatal to the prosecution and in support of his contention he placed reliance on the judgment of the Supreme Court in the case of Baldev Singh v. State of Punjab, 1991 0 CAR 81. In this case there was a delay of 12 days and the Court observed that delay creates doubt and evidence is liable to be discarded on that count. He also placed reliance on the judgment of the Supreme Court in the case of Santa Singh v. State of Punjab AIR 1956 SC 526 . In this case their Lordships of the Supreme Court held that "there was inordinate delay in sending the sealed parcels of (a) the empty cartridge case recovered from the scene of occurrence, and (b) the rifle recovered from the house of the accused for the opinion of the Ballistic Expert. The accused, though actually arrested on the 14th September, 1954, and brought to the police station on the 21st September, 1954 was not interrogated by the Sub- Inspector till the 26th September, 1954. The memo relating to the recovery of the empty cartridge case was not attested by any independent witness. " The Court held that "the above suspicious features threw doubt on the bonafid of the investigation. The suspicious delays that had occurred as regar important steps in the course of the investigation rendered it unsafe to hold that the case of the prosecution had been established beyond reasonable doubt. " The Court held that "the above suspicious features threw doubt on the bonafid of the investigation. The suspicious delays that had occurred as regar important steps in the course of the investigation rendered it unsafe to hold that the case of the prosecution had been established beyond reasonable doubt. " ( 18 ) LEARNED Amicus Curiae also placed reliance on the judgment of a Division Bench of this Court in Ten Singh v. State (Delhi Admn.), 1996 (1) Crimes 192 (HC ). In this case also the Court observed that the delay in sending blood stained pant of accused to CFSL casts doubt on bona fides of investigation. ( 19 ) LEARNED Amicus Curiae also submitted that seals were kept by the Investigating Officer and he had neither given it to the public witness nor to other police officials and the conviction is liable to be set aside because of this infirmity in the prosecution version. ( 20 ) LEARNED Counsel for the State submitted that the accused were apprehended with arms and that alone should lead to the inference that they had assembled there for committing dacoity. I find no merit in this submission. ( 21 ) THE prosecution has to establish that the accused persons had assembled there for committing dacoity or assembled for the purpose of making preparation to commit dacoity. Mere presence of some persons even with arms cannot legitimately lead to the definite conclusion that they had assembled there to commit dacoity. Convicting the accused on such presumption is against the settled principles of criminal jurisprudence. ( 22 ) TOTALLY discarding the defence evidence without proper analysis or consideration and to proceed with the basic presumption that the defence witnesses always lie and the prosecution witnesses always tell the gospel truth is also neither justified nor legitimate nor proper. ( 23 ) DELAY of 12 days in sending the parcel by Moharir Malkhana to CFSL is a serious lacuna in the prosecution version. This lapse casts serious doubt about the truthfulness and credibility of the prosecution version. ( 24 ) NON-EXAMINATION of Moharir Malkhana and failure of the prosecution to even file his affidavit to testify to the safe custody of the recovered country-made pistol is also a serious lacuna in prosecution version. This lapse casts serious doubt about the truthfulness and credibility of the prosecution version. ( 24 ) NON-EXAMINATION of Moharir Malkhana and failure of the prosecution to even file his affidavit to testify to the safe custody of the recovered country-made pistol is also a serious lacuna in prosecution version. ( 25 ) NEITHER depositing the CFSL form in the Malkhana nor sending it alongwith the sample parcel to the office of the CFSL puts a serious question mark on the credibility of the prosecution version. ( 26 ) I have heard learned Amicus Curiae and the learned Counsel for the State and gone through the entire evidence in this case. On the strength of settled law which have been enumerated in the preceding paragraphs, the conviction of the appellant cannot be sustained and is accordingly set aside. Consequently, the judgment of the Additional Sessions Judge is set aside. The appeal is allowed and the appellant s bail bonds are accordingly cancelled. ( 27 ) BEFORE parting with the judgment I would like to place on record my deep sense of appreciation for the able assistance provided by learned Amicus Curiae, Mr. Naveen Thakur in this appeal.