Judgment MOHD. YAMIN, J. ( 1 ) ACCUSED appellant Banshi Lal was convicted for offence under S. 8/18 of the N. D. P. S. Act (hereinafter called the Act) and sentenced to ten years rigorous imprisonment with a fine of Rs. one lac and in default to undergo two years rigorous imprisonment by learned Special Judge, NDPS Act Cases, Nimbahera vide judgment dated 30-10-1996. ( 2 ) BRIEFLY stated, the case of the prosecution is that Dy. S. P. Nimbahera, Jainarain received a secret information on 22-11-1995 that the accused appellant was keeping opium in his house and has invited some smugglers from Marwar so that the contraband be sold to them. The information was recorded and a copy was sent to the higher officers. Jainarain thereafter raided the house of the appellant. A notice under S. 50 of the Act was given to the appellant and thereafter house was searched wherefrom 1. 300 kg. of opium was recovered. Two samples of 30 grams each were taken and sealed. The rest of opium was sealed separately. One of the samples was then sent to the Chemical Examiner through S. P. concerned and was examined. It was found to be opium having 5. 03% morphine. After investigation challan was submitted. Learned Special Judge, NDPS Act Cases, Nimbahera tried the accused appellant and convicted and sentenced as stated above. ( 3 ) I have heard the learned counsel for the appellant as well as learned Public Prosecutor and perused the record. ( 4 ) LEARNED counsel for the appellant raised two main points, first being that the house from where recovery was made, was not in exclusive possession of the appellant. The second point is that the sample was sent to the Chemical Examiner but certain objections were raised by him about which there is no evidence as to what they were and how they were removed and that the sample was sent to the Chemical Examiner again, therefore, possibility of tampering with the sample could not be ruled out and hence the report cannot be relied upon. He, therefore, prayed that the appellant deserves acquittal. ( 5 ) ON the other hand, learned Public Prosecutor supported the judgment. ( 6 ) SO far as exclusive possession of the property from where contraband was recovered is concerned. He, therefore, prayed that the appellant deserves acquittal. ( 5 ) ON the other hand, learned Public Prosecutor supported the judgment. ( 6 ) SO far as exclusive possession of the property from where contraband was recovered is concerned. The prosecution is not able to prove that the house was in exclusive possession of the accused appellant. I may refer to the statement of PW-13 Jainarain himself. He admitted in the cross-examination that he did not know the house of the appellant from before and that he did not verify from anyone whether the house was in exclusive possession of the appellant alone. He presumed that the house of Banshilal was known to the officials of the concerned police station who were with him. He further admitted in the cross-examination that members of the family of appellant were also residing in the house including his wife and children. P. W. 14 Babu Singh, who was the driver of the vehicle in which the police party went, stated that there were two houses of Banshi Lal adjacent to each other and that members of his family were residing therein. He admitted that he did not enter the house and did not know as to wherefrom recovery was made. P. W. 8 Yusuf Mohd. was the Station House Officer of police station Kanera whom investigation was handed over. He has admitted that he inspected the site and prepared site plan on 24-11-1995. He stated that there were two houses of Banshi Lal and that he did not obtain any verification from the panchayat that the house from where recovery is said to have been made was in exclusive possession of appellant Banshi Lal. He did admit that when he visited the house, members of the family of Banshi Lal met him. ( 7 ) P. W. 10 Balu Ram, who was a member of the raiding party, stated that he reached the house as per order of Dy. S. P. and admitted that Banshi Lals family comprises of two young boys as well as wife who were present. They were living in the same house. P. W. 11 Tulsi Ram was also a member of the raiding party and admitted that two young boys, who were sons of accused appellant Banshi Lal, were present when raiding party searched the house. They were living in the same house. P. W. 11 Tulsi Ram was also a member of the raiding party and admitted that two young boys, who were sons of accused appellant Banshi Lal, were present when raiding party searched the house. P. W. 12 Mehmood Khan stated that it were Banshi Lal, Roop Kishore and Mani Kant who searched the house and recovered opium. He admitted that he did not enter into the house but the house which was raided was in occupation of the accused appellant, his wife and his children. P. W. 15 Mani Kant tells a lie when he says that there was only one room but does not deny the possibility of other house of the appellant being situated there. P. W. 16 Roop Kishore admitted that the house wherefrom search was taken was residential and the members of the accused appellant were also present. P. W. 17 Heera Lal is another witness who admitted that the wife and children of the accused appellant were residing in the house wherefrom recovery has been made. So it is clear from the evidence of the prosecution itself that there were two houses belonging to the appellant and the house concerned was not in exclusive possession of the accused appellant. His major sons and wife were also living therein. Thus from the statement of Investigating Officer as well as members of raiding party it is found that the house from which recovery is said to have been made was not in exclusive possession of the accused appellant. ( 8 ) THE case of the accused appellant was that the house was in possession of Tulsi Ram who is the son of accused appellant. DW-1 Heeralal, who is one of the sons of accused appellant, has stated that his elder brother Tulsi Ram used to reside in the house. Ration card of Tulsi Ram is Ex. D/1 which mention his name, his wife and two children while ration card of the accused appellant is Ex. d/2 which does not mention the name of Tulsi Ram and mentions names of other 11 persons who are the members of his family. Ration card of Tulsi Ram mentions names of four persons. So in all 16 persons were residing in the premises and by no stretch of imagination the house can be said to be in exclusive possession of the accused appellant. Ration card of Tulsi Ram mentions names of four persons. So in all 16 persons were residing in the premises and by no stretch of imagination the house can be said to be in exclusive possession of the accused appellant. Thus it is proved beyond doubt that the house was not in exclusive possession of the accused appellant. ( 9 ) THE second most important flaw in this case is that the sample appears to have been tampered with before its examination by the Chemical Examiner. It was P. W. 8 Yusuf Mohd. who started investigation when he was posted as Station House Officer Kanera and during the investigation sealed packets were not handed over to him though investigation was given to him under the Orders of Dy. S. P. Jainarain. P. W. 13 Jainarain sealed the samples and handed over to Roop Kishore Chaturvedi PW-16. PW-16 Roop Kishore, who was Station House Officer, Nimbehera handed over the samples to the incharge of Malkhana who was Head Constable Shyamlal. P. W. 3 Shyam Lal statedthat he got the samples on 22-11-1995. He entered them in the Malkhana Register and kept in the Malkhana. A sample was handed over to Ramesh Chandra constable on 11-12-1995 who deposited the same with Chemical Examiner on 13-12-1995 and handed over receipt Ex. P/3. He admitted in the cross-examination that the sample was sent earlier to the Chemical Examiner on 27-11-1995 but some objections were raised and were removed on 29-11-1995. He does not know as to what were the defects. P. W. 5 Ramesh Chandra has stated that the sample was handed over to him by Malkhana Incharge Shyam Lal on 11-12-1995 to take the same to the Forensic Science Laboratory. A letter from S. P. office was handed over to him and he went to Jaipur along with letter Ex. P/5. This letter is dated 27-11-1995. He admitted in the cross-examination that the sample was taken to the Forensic Science Laboratory twice. The sample was first handed over to him on 27-11-1995 which he took to Laboratory but some objections were raised by the Forensic Science Laboratory. The witness did not know as to what were the objections. It is proved beyond doubt from Ex. P/6 that some objections were raised by the Forensic Science Laboratory by its letter dated 28-11-1995. The sample was first handed over to him on 27-11-1995 which he took to Laboratory but some objections were raised by the Forensic Science Laboratory. The witness did not know as to what were the objections. It is proved beyond doubt from Ex. P/6 that some objections were raised by the Forensic Science Laboratory by its letter dated 28-11-1995. Nobody knows as to what were those objections and how they were removed. The sample was again sent to the forensic Science Laboratory on 12-12-1995 through Ramesh Chandra PW-5. It is strange that Investigating Officers PW-3 Shyam Lal and PW-8 Yusuf Mohd. did not know as to whether sample was sent back by the laboratory with certain objections and if so, as to what were the objections. From the statement of PW-3 Shyam Lal it appears that the sample was deposited in Malkhana on 22-11-1995 in sealed condition and he entered it in Malkhana Register which is Ex. P/2 which also bears the same seal which was put on the sample. The sample was handed over to Ramesh Chandra on 11-12-1995. The Register also mentions that the sample was given to Ramesh Chandra on 27-11-1995 but the same was received back on 29-11-1995 with certain objections. But the witness is not in a position to say as to what were the objections. He admitted in the cross-examination that the samples were re-sealed before him and the sample of the seal which was put second time is marked in Malkhana Register entry. It means that his earlier version that seal by which the samples were sealed at the site, is not marked in Malkhana Register. However, when the sample was received back on 29-11-1995, it is not known as to how the objection was removed or as to what were the objections raised by the Laboratory. It is strange that when sample was again kept in Malkhana on 29-11-1995 it was not mentioned in the register as to what was the condition of the articles, as it is not known as to what were the objections raised by the Laboratory. From the letter Ex. P/6 it transpires that the objections related to the seal itself and objection was not a formal one. Objection No. 1 related to the seal on the sample. It appears that the sample did not contain the seal which was put on the recovery memo. From the letter Ex. P/6 it transpires that the objections related to the seal itself and objection was not a formal one. Objection No. 1 related to the seal on the sample. It appears that the sample did not contain the seal which was put on the recovery memo. The recovery memo Ex. P/8 bears the sample of the seal at place z. It mentions that the sample was sealed and the seal which is marked z on Ex. P/8 was put on the sample itself. But strangely from the letter Ex. P/6 it is found that no such seal was found on the sample when the same reached the laboratory. Therefore, the laboratory raised objection and sent back the sample. The letter Ex. P/6 states that the seal which was put on the recovery memo Ex. P/8 was put on the sample when objection was raised. It means that when the sample was deposited in Malkhana it was not sealed by the seal which is mentioned in Ex. P/8 and the statement of Malkhana Incharge Shyam Lal PW-3 is false to that extent. PW-3 Shyam Lal is the person who was supposed to have removed the objection being Malkhana Incharge but he does not clarify the objections. I have gathered the objections from the letter itself as well as from the record which proves that the sample did not contain the seal mark on Ex. P/8 when the same was deposited with Shyam Lal PW-3. Raiding Officer Jainarain PW-13 took the things in casual manner and it appears that the sample was not sealed at the time of recovery by the seal which is mentioned in Ex. P/8. PW-3 Shyam Lal does not tell as to wherefrom did he keep the seal which he had put on the sample when he re-sealed it before sending it to the Forensic Science Laboratory again. ( 10 ) LEARNED counsel for the appellant placed reliance on the State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314 : (1980 Cri LJ 929) in which the facts were that the sample was sent to the office of the Superintendent of Police for onward transmission tothe Public Analyst but the sample was not accepted by the office of the Superintendent of Police as the labels were not in order. However, the sample was sent to the Public Analyst in the same condition. However, the sample was sent to the Public Analyst in the same condition. In those circumstances it was held that the prosecution has to prove that while in its custody the seals were not tampered with. The inevitable effect of the omission was that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period. It was held that this was the main infirmity on the basis of which High Court was right in holding that the prosecution had not proved that right from the stage of seizure of the opium up to the time when sample was handed over to the Public Analyst the seals remained intact. The prosecution had not taken the Court into confidence in disclosing as to the reasons why the office of the Superintendent of Police refused to take the sample. Even though the labels were not in order, it was for the prosecution affirmatively to prove that the seals were still intact. In the case in hand the prosecution has not taken the Court in confidence in telling as to what were the lacunae for which the laboratory had returned the sample and how the lacunae were removed. ( 11 ) IN all these circumstances the story of the prosecution that the sample was properly sealed at the time of its seizure is false and it appears that the sample which passed through different hands was tampered with. When the laboratory raised objection the loop hole was plugged by re-sealing the sample by the same seal which is found on Ex. P/8. The consequence is that the sample did not reach in intact condition. Consequently, the report of the Forensic Science Laboratory cannot be read against the accused appellant. ( 12 ) IN view of what has been stated above, the accused appellant deserves acquittal. Therefore, the appeal is hereby allowed and the conviction and sentence of accused appellant Banshi Lal for offence under S. 8/18 of the N. D. P. S. Act is hereby set aside. He is acquitted from the charge of S. 8/18 of the NDPS Act. He is in custody and shall be released forthwith, if not required in any other case.