Judgment :- (PRAYER: Criminal Appeal is filed to set aside the judgment passed by the VI Additional Special Court for NDPS Act at Chennai in C.C.No.609 of 1995 dated 4.11.1999.) This appeal has been preferred by A1,A3 and A4 in C.C.No.609 of 1995 on the file of the VI Additional Special Judge, Chennai, convicting them to undergo six months Rigorous Imprisonment and to pay a fine of Rs.2,000/- each and in default, to undergo three months Rigorous Imprisonment for the offence under Section 8(c) r/w S. 27 (a) of the NDPS Act. 2. The brief facts of the case are as follows: (i) On 6.9.1995, P.W.2 the S.I. of Police, B-1 police station received Ex.P6 information that the accused are selling heroin at the K.K.Street Aatham street junction and therefore, proceeded to K.K.Street-Aatham street junction along with his party, which included P.W.3 and there, he caught hold of the accused on suspicion and asked them whether they desire to be produced before a nearby Magistrate or before a Gazetted Officer for conducting a search. 3. Thereafter, a search was conducted and it was found that each one of the accused was having 10 small paper packets each containing 50 milligrams of heroin powder. P.W.2 prepared Ex. P.12 mahazar, seized the paper packets, arrested the accused and brought them to the police station, where he registered a case against them in B-1 Crime No.1463 to 1466 of 1996 under Section 8(c) r/w. S. 21 of the NDPS Act. 4. PW-4, the Inspector of Police took up further investigation of the case, examined the witnesses and recorded their statements. He gave Ex.p.13, letter of requisition to the Judicial Magistrate of the NDPS Court to send the samples of the seized contraband material for chemical analysis. After getting the Analyst's report, he filed the charge sheet on 25.11.1995. On behalf of the prosecution, PWs. 1 to 4 were examined and Exs. P1 to 13 as well as M.Os.1 to 4 were marked. On the side of the accused, P.W.1 was examined but no document was marked. When the accused were questioned under Section 313 Cr.P.C. with regard to the circumstances appearing against them on the basis of the evidence of the prosecution witnesses, the accused denied the same and stated that a false case has been foisted against them due to political enmity. 5. When the accused were questioned under Section 313 Cr.P.C. with regard to the circumstances appearing against them on the basis of the evidence of the prosecution witnesses, the accused denied the same and stated that a false case has been foisted against them due to political enmity. 5. On a consideration of the oral and documentary evidence, the learned Special Judge came to the conclusion that the offence under Section 8 r/w. S.27 (a) NDPS Act stood proved against the accused, consequently to which he sentenced each one of them to undergo six months Rigorous Imprisonment and to pay a fine of Rs.2000/- and in default, to undergo three months Rigorous Imprisonment. Aggrieved over the said conviction, this appeal is filed. 6. Mr. Paulkanakaraj, learned counsel appearing for the appellants would contend that this is a case foisted for political purposes, that the property seized from them at the report was alleged to have been sent to the Chemical Analyst for getting his opinion. But, on the other hand the properties were examined in a Laboratory near the place of occurrence and therefore, the benefit of doubt must be given to the accused. P.W.1 is the Assistant of Forensic Sciences Department, who has given evidence about Exs.P2 to p5, the Chemical Analyst's report. According to Exs.P2 & p5, each small packet contained 25 miligrams of heroin (Dy-Acetyle-Morphine). In Ex.p3, each packet contained 30 miligrams of Dy-Acetyle-Morphine. In Ex.P5, the 10 packets contained 30, 50, 30, 40, 25, 20, 30, 30, 20 and 25 miligrams each of Dy-Acetyle Morphine. 7. But when cross-examined, PW.1 has stated that in Crime No.1463/95 which is with regard to A1, the net weight of the 10 packets was 4.110 grams, but the gross weight was 10.460 grams. Similarly, in Crime No.1464/95 with which A2 is concerned, the net weight of the contraband 4.110 grams, but the gross weight was 10.54 grams. In Crime No.1465/95 with which A3 is concerned, the net weight of the 10 packets was 4.040 grams, but the gross weight was 10.91 grams. In Crime No.1466/95, with which A.4 is connected, the net weight was 2.570 grams and the gross weight was 8.86 grams. In Crime No.1465/95 with which A3 is concerned, the net weight of the 10 packets was 4.040 grams, but the gross weight was 10.91 grams. In Crime No.1466/95, with which A.4 is connected, the net weight was 2.570 grams and the gross weight was 8.86 grams. On the other hand, PW-2, the Sub- Inspector of Police who arrested the accused and seized the contraband material, has stated that each packet weighed 50 miligrams and 10 packets possessed by each of the accused totally weighed 500 miligrams. P.W.2 would state that he has weighed the properties at the time of seizure. 8. PW-3 who accommodated P.W.2 would also state that he had taken a scale for weighing the contraband material and therefore, he weight the contraband at the time of arrest itself. Thus, it would be seen that the crime of each accused was possession of 10 packets, the gross weight of which is alleged to be 500 miligrams. Whereas, the gross weight of 10 packets kept by each accused is: A1-10.46 grams, A2-10.54 grams, A3-10.91grams and A4.8.86 grams. The net weight of the heroin powder seized from each accused is A1- 4.110 gram, A2- 4.110 gram, A3-4.0400 gram, and A4-2.570 gram, as seen from the evidence of P.W.1. When the gross weight of the contraband material was 500 grams at the time of arrest, it is not shown as to how the gross weight was nearly 10 times when it was sent to Chemical Analyst for this opinion. In this context, the dates on which the property was produced in Court also assumes importance. Form 95 sent along with the property was produced before the VIIth Judicial Magistrate on 6.9.95, that is on the date of arrest itself. But the learned Magistrate returned the same on the same date with a direction to produce the same before the Special Court for NDPS Act. But the properties were produced in Court only on 18.9.95, as seen from the endorsement made by the Special Judge on the left side corner of Form 95. On 6.9.95, P.W.4, the Inspector of Police has sent Ex.P-13, letter requesting the learned Special Judge to send the case properties for chemical analyst's opinion. In Ex.P-13 also, it is stated that each accused was in possession of 500 grams of heroin powder. On 6.9.95, P.W.4, the Inspector of Police has sent Ex.P-13, letter requesting the learned Special Judge to send the case properties for chemical analyst's opinion. In Ex.P-13 also, it is stated that each accused was in possession of 500 grams of heroin powder. If 500 grams were seized from each of the accused, I am not able to understand as to why there is a huge difference in the weight of the contraband material as per the evidence of P.W.1. The allegation that each accused had 500 milligrams of heroin powder is also falsified from Ex.P-2,3,4,5 as per which total weight of the heroin powder from all the packets will be less than 500 miligrams, but according to P.W.1 the net weight was nearly 10 times more. Therefore, the contention of Mr. Paulkanakaraj, learned counsel for the appellants that the property which was sent to the Chemical Analyst is not the property which was recovered on 6-9-95 cannot be simply brushed aside as one without substance. His contention is fortified by the fact that there is no evidence as to what happened to the property from 6.9.95 to 18.9.95 and in whose custody the property was kept during that period. Under similar circumstances, in 2002 (1) MWN (Cr.)118 (Ananthi v. state rep. by N.I.B. C.I.D., Trichy), "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 Valsalav, Vs. 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 Valsalav, Vs. State of Kerala, (1993 S.C.C. (Crl) 1082), it has been held as follows: "We have seen the report of the chemical examined and there no doubt, it is mentioned that one scaled 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 in 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.p2 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 PW.6 does not say that he continued to keep it in his custody under seal till it was produced in the Court on January 14.1998. 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. PW-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. PW-3 (A.S.I) is supposed to have produced the same in the Court. It is only P.W.7 the Circle Inspector, who in the cross-examination had stated 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 Supreme Court 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 the Court to the effect that what was seized alone was sent for chemical examination". It is clear from the said judgment that a duty is cast upon the prosecution to let in evidence before the Court to the effect that what was seized alone was sent for chemical examination". "Analysing the materials on record, in the context of the law laid down by the Supreme Court and the arguments advanced by the learned counsel for the appellant, I find that the prosecution has 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 is 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 the Court. The endorsement 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 does 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 for having produced the sample before the laboratory and that report is also not before the 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 over 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 over by him on 13.7.1996 and it was in his custody 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 the evidence 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 analysis. If that is so, the judgments of the Supreme Court will definitely apply to the case on hand and giving the benefit of doubt to the accused, they are acquitted forthwith of the offence for which they were charged, tried and convicted". 9. The facts of the case in the judgments relied upon by the counsel for appellants as mentioned above are similar to this case. Reiterating the same principles laid down by the supreme Court and High Court the accused are entitled to be acquitted by giving the benefit of the doubt. Hence the conviction by the learned Special Judge is set aside. The fine amounts, if any paid shall be refunded to the accused. Consequently connected Crl.M.P. is closed.