JUDGMENT: The Appellant in this appeal is the accused in C.C.No.285 of 1996 on the file of Special Judge for cases under N.D.P.S. Act, Pudukottai. She was tried for an offence punishable under Sec.8(c) read with Sec.21 of N.D.P.S. Act. On being found guilty, she stands sentenced to ten years rigorous imprisonment together with a fine of Rs.1 lakh carrying a default sentence of three years. She is therefore before this Court in this appeal. Heard Mr.S.Shanmuga Velayutham learned counsel appearing for the appellant and Mr.R.Karthikeyan learned Government Advocate appearing on the criminal side for the State. 2. The case of the prosecution, in short, is as follows: At 7.15 a.m. on 13.7.1996, P.W.5 the Inspector of Police of Narcotic Intelligence Bureau, C.I.D., Tiruchirappalli was in his office. At that time his informant passed on an information before him, which was reduced into writing by him. He sent a copy of the same to his higher official, namely, the Deputy Superintendent of Police, Madras by Courier. Ex.P-3 is the said document. As the information disclosed that the offender is a lady, P.W.5 decided to have a lady constable during investigation, search and seizure. Pursuant to that secret information, he, in the company of Sub-Inspector of Police, Head Constable and P.W.4, went to All Women Police Station, Trichy at 8.30 a.m., where he gave a requisition to depute a lady constable. Accordingly, P.W.3, a lady constable by name Fathima, was deputed. P.W.5 proceeded further in the company of the persons above mentioned in the police van and reached the office of the Village Administrative Officer at Puthur at about 8.45 a.m. There he gave a requisition requesting for the presence of the Village Administrative Officer and his assistant during search and seizure. Accordingly the Village Administrative Officer/ P.W.1 and his Assistant/P.W.3 accompanied P.W.5 in the same van. All the prosecution witnesses reached Kumaran Bus Stop at Valayur Road at 9.15 a.m. The vehicle was parked in the extension road in an unnoticeable manner and all of them waited there along with the informant. At 10.30 a.m. opposite to the bus stand, the accused in this case, namely, Anandhi appeared there with yellow colour cloth bag in her right hand. She was identified by the informant. 3. Immediately P.W.5, with his police party, surrounded the accused. P.W.5 identified himself to the accused. At 10.30 a.m. opposite to the bus stand, the accused in this case, namely, Anandhi appeared there with yellow colour cloth bag in her right hand. She was identified by the informant. 3. Immediately P.W.5, with his police party, surrounded the accused. P.W.5 identified himself to the accused. Thereafter, he en quired her about her name and address, which on being furnished, were noted by him. P.W.5 also informed the accused that as per intelligence he is suspecting that she is carrying heroin in the yellow colour cloth bag. The accused refused 1o answer. P.W.5 requested independent witnesses namely, Loganathan, having a small shop near the scene of occurrence, Periyasamy, a tailor by profession, Singaram a pharmacy owner and Manickam to be witnesses at that time. He also requested the residents of that area to be witnesses for the search and seizure. All of them refused. Thereafter in the presence of P.Ws.1 and 3, P.W.5 informed the accused about her right to be searched, either before the Magistrate or before the Gazetted Officer. The accused consented for being searched at the spot itself. She also consented for P.W.3/lady constable searching her. P.W.5 reduced into writing, the consent so given by the accused and got it attested by the witnesses and signed by the accused herself. Ex.P-1 is the consent given by the accused. P.W.5 thereafter directed P.W.3 to conduct a personal search of the accused and nothing incriminating was recovered during the personal search. The accused gave the yellow cover cloth bag in her hand to P.W.5. On P.W.5 examining that bag, it contained printed matter on either side in English and Tamil “Sri Thaila Silks, Tirhcy-2”. It also contained a black colour polythene bag. On examining the black colour polythene carry bag, it contained a khaki and white colour polythene cover secured in three placed by rose colour rubber bands. The rubber bands were removed and when the polythene cover was examined it was found to be pasted. P.W.5 opened the cover at its one side and it was found to contain brown sugar with its peculiar pungent smell. P.W.5 took a small sample of the content and did drug detection test, which disclosed that the colour peculiar to heroin. The rubber bands were removed and when the polythene cover was examined it was found to be pasted. P.W.5 opened the cover at its one side and it was found to contain brown sugar with its peculiar pungent smell. P.W.5 took a small sample of the content and did drug detection test, which disclosed that the colour peculiar to heroin. After confirming that it is heroin, P.W.5 took out the entire materials in a polythene strip and measured it with a weighing machine brought by the police; it was found to weigh one kilo. Two samples weighing each five grams, one for safe custody and the other for chemical examination, were taken by P.W.5 in two separate packets. The packets were secured by P.W.5, twining them around with thread and then affixing the seal of N.I.B.. A slip was pasted around it. On the pasted slip, the accused and the witnesses signed. P.W.5 also signed it. The remaining 990 grams of heroin was put back in the same polythene cover; the end side of the cover was folded; it was secured by putting a rubber band around it; the polythene bag was wrapped in a khaki paper; the packet was twined with thread and the seal of N.I.B. was put on it by P.W.5. P.W.5 also pasted a paper around the packet and took the signature of the witnesses as well as the accused in it. P.W.5 also signed it. The yellow colour cloth was also recovered. M.O.1 is the yellow colour cloth bag; M.O.2 is the packet containing 990 grams of heroin; M.O.3 is the black colour polythene carry bag found inside M.O.1; M.O.4 is the packet weighing five grams of heroin meant for safe custody and M.O.5 is the packet containing five grams of heroin meant for laboratory test. A Mahazar was prepared to evidence the recovery, in which the accused, witnesses and P.W.5 had signed. Ex.P-2 is the Mahazar. Ex.P-3 is the plan prepared by P.W.5. 4. AT 11.50 a.m., P.W.5 arrested the accused under the provisions of N.D.P.S. Act and brought the accused along with the case properties to the police station at 12 noon and registered the crime in Crime No.26 of 1996 for the offence under Sec.8(c) read with Sec.21 of the N.D.P.S. Act. Ex.P-4 is the printed First information Report. 4. AT 11.50 a.m., P.W.5 arrested the accused under the provisions of N.D.P.S. Act and brought the accused along with the case properties to the police station at 12 noon and registered the crime in Crime No.26 of 1996 for the offence under Sec.8(c) read with Sec.21 of the N.D.P.S. Act. Ex.P-4 is the printed First information Report. P.W.5, thereafter prepared the report and sent the same to the higher official namely the Deputy Superintendent of the Police in compliance to the requirement of Sec.57 of the N.D. P.S. Act. Ex.P-5 is that report. P. W.6 was the Inspector of Police of N.I.B., during the relevant time. At 1.00 p.m. on 13.7.1996, on receipt of information over telephone about the detection of this crime, P.W.6 immediately left for Trichy and reached the office of P.W.5 at 4.00 p.m. on that day itself. P.W.5 was preparing to send the accused for judicial remand. P.W.6 collected the printed first information report and examined the accused and recorded her statement. P.W.6 also examined P.W.3 and others and recorded their statements. He also verified the records available in the police station along with Form 95. The accused was sent for judicial remand. P. W.6 stayed in Trichy itself on that day. Next day, he went to Puthur, where he examined P.Ws.1 and 2 and recorded their statements. Thereafter, he went to the scene of occurrence and examined persons who were either having shop or residing near the scene of occurrence and recorded their statements. P.W.5, thereafter came to the police station and examined P.W.5 and recorded his statement. He verified the case properties received back from the Court with Form 95. On 18.7.1996 he produced the case property before the Special Court at Pudukottai with a requisition to send the same to the laboratory. Ex.P-7 is that requisition. Along with Ex.P-7, the case history as well as Form 95 were sent to the Special Court. On 21.7.1996, police constable 647 filed a report before him stating that the case property was handed over by him at the laboratory. P.W.7 is the scientific Assistant in the Forensic Laboratory, which received a requisition on 19.7.1996 from the Court along with the case property for chemical examination through police constable 647. On 21.7.1996, police constable 647 filed a report before him stating that the case property was handed over by him at the laboratory. P.W.7 is the scientific Assistant in the Forensic Laboratory, which received a requisition on 19.7.1996 from the Court along with the case property for chemical examination through police constable 647. The Court seal contained in the requisition letter as well as the seal found on the sample were verified under the supervision of the Assistant Director and then the sample packet was opened. The sample packet contained the seal of N.I.B. The sample packet was opened and it was found to contain a dull yellowish powdered material weighing five grams. On analysis, it was found to contain diacetyl morphine (heroin). After examination, the balance of the sample was packed and sealed. Ex.P-8 is the laboratory report which was sent to the Court through police constable. The remaining sample of heroin is M.O.5. P.W.6 after completing investigation, filed the final report against the accused in Court on 16.8.1996. When the accused was questioned under Sec.313 of the Code of Criminal Procedure, on the basis of the incriminating materials made available against her, she denied each and every circumstances put up against her as false and contrary to facts. She would also state that P.Ws.1 to 6 are speaking falsehood and that she does not know anything about the evidence of P.W.7. She pleaded that she is innocent. No witnesses were examined on her side. 5. Mr.S.Shanmuga Velayutham, learned counsel appearing for the appellant mainly advanced his argument on the following points: (a) There is illegality in effecting seizure and therefore it affects the case of the prosecution. (b) The requirement of Sec.42(2) had not been complied with at all and in any event there is no proof for having complied with it and therefore the prosecution must fail. (c) The accused was not informed of her right to be examined either before the Court or before the Gazetted Officer and this requirement being mandatory in nature and it not having been complied with, the prosecution cannot succeed. (d) The requirement of Sec.57 of the Act is also not complied with, which affects the case of the prosecution. (c) The accused was not informed of her right to be examined either before the Court or before the Gazetted Officer and this requirement being mandatory in nature and it not having been complied with, the prosecution cannot succeed. (d) The requirement of Sec.57 of the Act is also not complied with, which affects the case of the prosecution. (e) The evidence available on record do not show that the materials stated to have been seized from the accused on 31.7.1989 is the material which had been sent to the laboratory for testing. Unless that is established the conviction of the accused in a grave offence like this cannot be sustained. In support of his last contention, the learned counsel brought to my notice two judgments of the Hon’ble Supreme Court of India reported in Valsala v. State of Kerala, 1993 S.C.C. (Crl.) 1082 and State of Rajasthan v. Daulat Ram, A.I.R. 1980 S.C. 1314. In elaborating this point, namely, that there must be proof placed before the Court that what was seized alone was sent to the laboratory for testing, the learned counsel appearing for the appellant took me through the evidence available on record and contend that, there are no materials to hold so in favour of the State. I heard the learned Government Counsel on all these points. 6. In State of Punjab v. Balbir Singh, A.I.R. 1994 S.C. 1872, it was held that, even if there is no strict compliance with the provisions of Criminal Procedure Code regarding search, that itself would not render the conviction illegal. But factually I find in this case that the evidence placed before the Court by the investigating officer establishes beyond doubt that he had taken all steps to secure the presence of independent witnesses to be present at the time of seizure and since all of them refused to participate in the seizure, P.W.5 had no other go except to have P.Ws.1 and 2 being parties to the seizure proceedings. From the mere fact that P.W.5 had taken the precaution of having P.Ws.1 and 2 with him at the time of seizure, his evidence regarding inviting independent witnesses to be present and participate at the time of seizure, cannot be disbelieved. From the mere fact that P.W.5 had taken the precaution of having P.Ws.1 and 2 with him at the time of seizure, his evidence regarding inviting independent witnesses to be present and participate at the time of seizure, cannot be disbelieved. If in a given case, independent witnesses available around the place of search are not willing to co-operate, then the Investigating Officer cannot be expected to run from place to place from that point of time, in search of independent witnesses. Under these circumstances, I am of the considered opinion that P.W.5 did not make any mistake in having with him P.Ws.1 and 2 at the time when he went for the search. Therefore factually P.W.5 had strictly complied with the requirement of Sec.165(4) read with Sec.100(4) of the Code of Criminal Procedure. Going to the next point contended by the learned counsel for the appellant that the requirement of Sub-Sec.(2) of Sec.42 had not been complied with, I find that Ex.P-3 is the proof for having complied with the requirement of the said Section. The seizure is on 31.7.1989 and Ex.P-3 shows that the higher official, namely, Deputy Superintendent of Police had seen this report at Madras on 15.7.1996 and in evidence of the same, he had put his initial as well as the date on it. Ex.P-3 also contained the official seal of the Deputy Superintendent of Police containing the date as 15.7.1996. It is no doubt true that the Investigating Officer had not placed any documentary proof by way of postal receipt or any other document for having despatched Ex.P-3 to the higher officials. But nonetheless, as could be seen from the endorsement on the lines referred to earlier in Ex.P-3 itself, there cannot be any doubt that Ex.P-3 was seen at Madras by the higher official of P.W.5. If Ex.P-3 had not been sent by post as deposed by P.W.5, then there can be no chance for the Deputy Superintendent of Police to see it at Madras on 15.7.1996 and seizure having been effected at Trichy. As far as informing the accused of her right to be examined before the Court or before the Gazetted Officer, I find that Ex.P-1 is the letter which contains the signature of the accused as well as the witnesses. The accused had categorically admitted in Ex.P-1 on her readiness of being searched at the spot itself by the police. As far as informing the accused of her right to be examined before the Court or before the Gazetted Officer, I find that Ex.P-1 is the letter which contains the signature of the accused as well as the witnesses. The accused had categorically admitted in Ex.P-1 on her readiness of being searched at the spot itself by the police. Thereafter this point also fails. Considering the next question of the violation to comply with the requirement of Sec.57 of the Act (it is also brought to my notice by the learned Government Counsel that Sec.57 is only directory and not mandatory), I find even the requirement of Sec.57 had been complied with. Ex.P-5 is the copy of the report about the search and seizure sent by P. W.5 to the higher official and Ex.P-9 is the original which had reached the higher official namely Deputy Superintendent of Police on 13.7.1996. Ex.P-9 also contains official seal of the Deputy Superintendent of Police under his signature and dated 15.7.1996. Therefore, I have no doubt in my mind that the investigating agency had also satisfied the requirement of Sec.57 of the N.D.P.S. Act factually. 7. Going to the last question namely whether the prosecution had established beyond doubt that the property that was seized on 13.7.1996 alone was sent to the laboratory and examined, I applied my mind to the oral evidence of the respective witnesses. P.W.5 is the empowered officer, who searched and seized the contraband. 7. Going to the last question namely whether the prosecution had established beyond doubt that the property that was seized on 13.7.1996 alone was sent to the laboratory and examined, I applied my mind to the oral evidence of the respective witnesses. P.W.5 is the empowered officer, who searched and seized the contraband. His evidence is as follows: Evidence in chief: "He had taken two samples weighing five grams each; one sample was meant for safe custody and the other sample was meant for being sent to the laboratory; each sample was put in a white polythene cover; packed and it was stapled; it was wrapped up in a khaki paper; it was secured by twining it with the thread; the seal of N.I.B. was put on the top of it; therefore a slip of paper was pasted around the same in which besides, P.W.5, the accused and the witnesses have signed.“ Evidence in cross: ”On the date of the arrest itself the accused was sent for judicial remand along with case properties and Form 95; after surrendering the case properties in Court, it was taken back and a police constable brought it back; when P.W.6 took up investigation he handed over the case properties to him.“ P.W.6 is the Investigating Officer in this case. His evidence is as follows: Evidence in chief: ”On reaching the police station, he verified Form 95 with the case properties; accused was sent for judicial remand; he also verified Form 95 and the case properties received back from the Court; on 18.7.1996 he produced the case property before the Special Court with a requisition to send the same to the laboratory; on 21.7.1996 Police Constable 647 filed the report before him that the case property was produced at the laboratory.“ Evidence in cross: ”To verify that the specimen seal of N.I.B. affixed on the sample is the seal found on the sample when received at the laboratory, the specimen seal of the office had been sent to the laboratory; the laboratory report do not indicate that the specimen seal and the seal found on the sample were verified and found to be correct.“ P.W.7 is the Scientific Assistant in the laboratory. His evidence shows the following: Evidence in chief: ”On 19.7.1996 along with Court’s requisition the case property was received at the laboratory through police constable 647; the Court’s seal in the requisition letter of the Court was compared along with the seal found on the sample packet; under the supervision of the Assistant Director, the sample packet was opened; on the sample packet N.I.B. seal was there.“ Evidence in cross: ”Before taking the sample packet for examination, the seal found on the sample would be thoroughly examined; the report/Ex.P-8 do not show the presence of any signature on the sample packet; the importance of verifying the seal on the sample packet as well as the sample seal is only to ensure identity of the property; in Ex.P-8 report, it is not stated that the seal found on the sample packet as well as the sample seal were verified; Ex.P-8 is the printed form; the printed form contains a recital (as the printed material) that “along with the requisition, a secured and sealed sample was received”. Ex.P-8 does not also show that the seal of N.I.B. is found on the sample packet.“ 8. The importance of letting in evidence to show that the seized material alone was sent to the laboratory to rule out any foul play, had been emphasized at least in three judgments of the Hon’ble Supreme Court of India and they are as follows: In State of Rajasthan v. Daulat Ram, A.I.R. 1980 S.C. 1314, it has been held as follows: ”Where the sample of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained were examined by the prosecution to prove that while in their custody the seals on the samples were not tampered with, the inevitable effect of the omission was that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period in question a fact which had to be proved affirmatively by the prosecution. Consequently, the accused could not be convicted under Sec.9-A. In such a case, the prosecution could not be allowed to fill up the gaps in the prosecution story at the appellate or revisional stage.“ In Valsala v. State of Kerala, 1993 S.C.C. (Crl.) 1082, it has been held as follows: ”We have seen the report of the chemical examiner and there no doubt it is mentioned that one sealed parcel was received containing a powder and it was analysed to be brown sugar. But from the records it is clear and it is also noted by both the Courts below that the seized article was produced in the Court only on January, 14, 1988 i.e., after a period of more than three months and there is no evidence whatsoever at all to show with whom the seized article was lying and even assuming that it was in the custody of P.W.6, the officer in charge of the police station who seized it, there is again nothing to show whether it was sealed and kept there. The learned counsel for the State no doubt argued that the provisions of Sec.55 of the Act are not mandatory but only directory. We need not go into this legal question in this case. Suffice it to say that the article seized appears to have been not kept in proper custody and proper form so that the Court can be sure that what was seized only was sent to the chemical examiner. There is a big gap and an important missing line. In the mahazar Ex.P-2 which is immediately said to have been prepared, there is nothing mentioned as to under whose custody it was kept after seizure. Unfortunately for the prosecution even P.W.6 does not say that he continued to keep it in his custody under seal till it was produced in the Court on January 14, 1988. The evidence given by P.W.6 Police Sub-Inspector, who seized the article is absolutely silent as to what he did with the seized article till it was produced in the Court. As a matter of fact, he did not produce it in the Court. P.W.3, (A.S.I.) is supposed to have produced the same in the Court. The evidence given by P.W.6 Police Sub-Inspector, who seized the article is absolutely silent as to what he did with the seized article till it was produced in the Court. As a matter of fact, he did not produce it in the Court. P.W.3, (A.S.I.) is supposed to have produced the same in the Court. It is only P.W.7 the Circle Inspector who comes into the picture at a later date, who admitted in the cross-examination that the seized article was sent by P.W.3 (A.S.I.) to the Court and P.W.7 in his cross-examination further admitted that he did not even see if the recovered material object was sealed but still he claims that he made the necessary application for sending the material object for chemical examination and it is only through P.W.7 that the chemical examiner’s report is marked. P.W.7 further admitted that he did not even know when it reached the Court. We are constrained to say that the investigation in this case has been perfunctory and on important aspects the evidence of the concerned officers is highly discrepant and unconvincing and does not throw much light. Therefore the evidence adduced is wholly insufficient to conclude that what was seized was sent to the chemical examiner. Though this is purely a question of fact but this is an important link. Both the Courts below have not examined this aspect in a proper perspective. No doubt the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof, the Courts cannot convict." In Gurubak Singh v. State of Haryana, 2000 A.I.R. S.C.W. 670, the Investigating Officer had admitted that the parcels containing the samples were not sealed by the officers in charge of the police station as required under Sec.35 of the N.D.P.S. Act. It was found in that case that the prosecution had not let in any evidence to show as to whether the chemical analyser received the samples with proper intact seals. In the absence of such evidence, it was held by the Hon’ble Supreme Court of India that, it raises a serious doubt as to whether the same sample was sent to the chemical analyser. It is clear from the said judgment that a duty is cast upon the prosecution to let in evidence before Court to the effect that what was seized alone, was sent for chemical examination. 9. It is clear from the said judgment that a duty is cast upon the prosecution to let in evidence before Court to the effect that what was seized alone, was sent for chemical examination. 9. Analysing the materials on record, in the context of the law laid down by the Hon’ble Supreme Court of India and the arguments advanced by the learned counsel for the appellant:, I find that the prosecution had definitely failed to establish that the materials shown to have been seized on 13.7.1996 from the accused are the materials that have been sent to the laboratory. Form 95 which was sent along with the case property on the date of the arrest of the accused to the Court is not produced as an exhibit in this case. Form 95, along with the case properties, are stated to have been received back from the remand Court through a police constable. What was the endorsement of the Court on Form 95 while returning the property to the investigating agency can very well be seen only when Form 95 is produced before Court. It may be the statement of the Court asking the police to keep it in safe custody and produce it later on before the special Court or it may also contain any defects noticed by the Court at the time when the case properties were produced before it. The evidence of the Scientific Assistant examined in this case as P.W.7 and a perusal of Ex.P-8/ report do not show that the sample seal of N.I.B. received at the laboratory was compared with the seal of N.I.B. found on the sample packet, which reached the laboratory. Only when there is evidence to that effect, it would totally rule out the possibility of any foul play. P.W.6 the investigating Officer had categorically stated in his evidence that the sample seal of N.I.B. was also sent to the laboratory to ensure the identity of the property seized and sent. The police constable, who carried the sample packet to the laboratory is stated to have filed a report before the Investigating Officer of having produced the sample before the laboratory and that report is also not before Court. The case property was admittedly returned by the Court on 13.7.1996 and it was re-submitted before the Special Court only on 18.7.1996. P.W.6 stepped into the Investigation in this case on 13.7.1996 itself. The case property was admittedly returned by the Court on 13.7.1996 and it was re-submitted before the Special Court only on 18.7.1996. P.W.6 stepped into the Investigation in this case on 13.7.1996 itself. P.W.5 the empowered officer, in his evidence would state that on P.W.6 taking the investigation, he gave the case records to P.W.6. This would mean that P.W.6 should have been given custody of the sample. But P.W.6 had not given any evidence at all as to whether the sample was taken from 13.7.1996 till it was submitted before the Special Court on 18.7.1996. To be precise, there is no evidence to show whether P.W.6 continued to have the case property in his custody, which was submitted before the Special Court on 18.7.1996 or was it in the custody of any other individual. Inasmuch as P.W.6 is totally silent on this aspect, the possibility of persons, other than P.W.6, having custody of the samples, cannot be totally ruled out. There is also no evidence in this case to the effect that the Officer in charge of the police station had put the seals on the parcels so brought to the police station, as required under Sec.55 of the N.D.P.S. Act. All the aforementioned facts raise a serious doubt in my mind as to whether the property, which is shown to have been recovered from the accused on 13.7.1996 is the property that had been sent to the laboratory for test. If that is so, the judgments of the Hon’ble Supreme Court of India will definitely apply to the case on hand and giving the benefit of doubt to the accused, she is acquitted forthwith of the offence for which she was charged, tried and convicted. Consequently, the appeal is allowed and the judgment under challenge is set aside.