Judgment :- (Criminal Appeal under Section 374 of Cr.P.C. as stated therein.) This Appeal arises against the order of conviction of 10 years R.I. and a fine of Rs.one lakh, dated 15.3.2002 in C.C.No.113 of 2000 passed against the four appellants for offence under Section 8(c), r/w 21, 25 and 29 of NDPS Act by the Special Judge NDPS Act Cases (the Principal Subordinate Judge), Cuddalore. 2. The brief facts of the case are as follows:- Upon prior information regarding Narcotics Drugs being carried by a lorry bearing Registration No.MP 14 G 6424 by A1, and that it was parked opposite to Puzhal Jail at Chennai, Rajasekar(P.W.1) along with Jaberia Nazir (P.W.2) and P.Saran(P.W.6) all Intelligence Officers of NCB headed by K.Raghavan (P.W.8) an Officer of Gazetted Rank, proceeded towards Puzhal Jail at Chennai about 2.00 A.M. in the morning of 28.3.2000 and while mounting surveillance found the said lorry parked in front of Puzhal Jail. At about 3.00 A.M. in the presence of two independent witnesses Naveenraj (P.W.5) and Vinobaraj, they intercepted the stationed lorry and found the appellants sitting inside. The Officers asked the occupants of the lorry that they want to search them and the lorry. Section 50 of the NDPS Act was explained to them in Hindi and appellants consented to be searched by the NCB Officers and need not to be searched by the Magistrate. All of them gave consent letters to that effect through Exs.P2 to P5. The Officers asked the occupants of the lorry whether they were carrying heroin a narcotic drug and upon this Mohammed Yusuf (A1) went over the cabin of the lorry brought out two jute hand bags which contained 26 packets wrapped in cloth, out of which 5 grams of sample from each packet was taken and kept in two separate covers marked as S1 and S2 and that they were sealed (Seal No.12). This process was followed for all the 26 packets. After samples were drawn the signature of all the appellants, seizing Officers and the witnesses were obtained on the samples. The accused with the lorry and the seized goods were then brought to the NCB Office and statements under Section 67 were recorded from the appellants (Ex.P23, P24, P13 and P.14). The appellants were arrested; who along with the seized properties were produced before the remanding Magistrate. The accused with the lorry and the seized goods were then brought to the NCB Office and statements under Section 67 were recorded from the appellants (Ex.P23, P24, P13 and P.14). The appellants were arrested; who along with the seized properties were produced before the remanding Magistrate. The report under Section 57 of the Act are Exs.P27,P12 and P40. After remand, the accused and the properties were handed over to P.W.6 with a direction to produce the same in to the Special Court for NDPS Cases. Accordingly P.W.6 deposited the properties at the NCB godown at about 9.30 P.M. on 29.3.2000 and receipt is Ex.D1. The properties were brought before the NDPS Court by P.W.6 on 3.4.2000 and it was deposited on 4.4.2000. By the order of the Court, it was again deposited in the godown for safe custody. On 5.4.2000, P.W.6 deposited the samples to the Chemical Examiner, Customs House. On 19.6.2000 the Analyst report (Ex.P22) was collected from the Customs House along with the remaining samples and restored to NDPS Court. 3. In the NDPS Court, during trial, all the four Intelligence Officers were examined as P.Ws. 1,2,6 and 8. Among the two independent witnesses, Naveenraj was examined as P.W.5. The statement of Naveenraj, Vinobaraj (Exs.P19 and P39)were said to have been recorded by P.W.3 and P.W.7 respectively and they have spoken to the same. Smt.Vathsala Venkatesan (P.W.4) who is Analyst has spoken to the test Memo, (Ex.P.21) and the Analysis Report (Ex.P.22) and deposed that her subordinates K.C.Pillai and P.K.Sharma had effected the analysis and that the samples were found to contain heroin. Srinivas (P.W.9) an Intelligence Officer deposed that he has prepared the godown receipt on 29.3.2000 for the properties produced before him by P.W.6. He would contend that although the forwarding memo, contained the seal No.12, he has mentioned the godown receipts (Exs.P.29 and D1) that the samples contain only seal No.11. It was only by inadvertence. 4. Upon perusing the entire evidence on record, material objects and exhibits, the trial Judge had found the appellants guilty under Section 8(c), r/w 21, 25 and 29 of the Act and convicted and sentenced them as stated above. 5. It was only by inadvertence. 4. Upon perusing the entire evidence on record, material objects and exhibits, the trial Judge had found the appellants guilty under Section 8(c), r/w 21, 25 and 29 of the Act and convicted and sentenced them as stated above. 5. Mr.B.Kumar, learned senior counsel appearing for the appellants based his arguments on two limbs, which are: (i) violations of statutory provisions under Sections 41(1) and 42(2) of the NDPS Act are fatal to the prosecution; and that the facts of the case may not invoke Section 43 of the Act. (ii) The Prosecution has not proved that the seized articles alone were sent for analysis; and that in this connection the procedure prescribed under Section 52A and 55 of the Act was not followed. 6. Regarding the first limb of the arguments, the learned senior counsel for the appellants submitted that Section 43 would be applicable only against any seizure in a public place or in transit; as stationed lorry was neither in transit nor is a public place, instead of Section 43 the other provisions under Section 41 and 42 alone would be applicable. 7. The learned counsel submitted that the documents through Exs.P9 to P.11 viz., Permit, Temporary Permit and Chalan of Transport Contractor of the lorry bearing Reg.No.MP14 G 6424 where from the contraband was seized, may show it a public carrier falling within the meaning of Public Conveyance; but when once it was delivered to a lessee by virtue of an agreement of contract, it becomes a contract carriage and nobody else, excepting the lessee may have right of entry thereto and thus soon after the erstwhile public carrier being converted into a contract carriage upon agreement of lease by a particular individual, none else than the latter will be entitled for an entry thereto; and so it loses the character of public conveyance; therefore, simultaneously it ceases to become a public place in order to invoke Section 43 of the Act. This was the submission made on behalf of the appellants. 8. In this connection reliance was also placed by the appellants in a case law Subash Vs. State of Kerala (2001 Cri. Law Journal 1945) wherein it was observed as follows:- "6. It is true that explanation to Section 43 clarifies that "public place" includes a public conveyance as well. This was the submission made on behalf of the appellants. 8. In this connection reliance was also placed by the appellants in a case law Subash Vs. State of Kerala (2001 Cri. Law Journal 1945) wherein it was observed as follows:- "6. It is true that explanation to Section 43 clarifies that "public place" includes a public conveyance as well. Prima facie, i.e., at first blush, there would appear to be some merit in the version of the learned Public Prosecutor that an auto-rickshaw might also be a public conveyance. Though Section 2(viii) of the N.D.P.S. Act defines "conveyance" as a conveyance of any description whatsoever and including any aircraft, vehicle or vessel, the term "public conveyance" is not seen specifically defined. A public transport or stage carriage will certainly be a public conveyance; but whether it will apply to a 'contract carriage' does not appear to have been specifically considered in any precedent. 7. According to me, there is a distinction between a contract carriage and a public conveyance and explanation to Section 43 would take in only a public conveyance like stage carriage and not a contract carriage." 9. The learned senior counsel for the appellants further argued that once Section 43 is found not applicable, then naturally Section 41(1) and 42(2) will come for his rescue. Section 41(1) of the NDPS Act deals with issuance of warrant for the arrest of any person by the Magistrate whom he has reason to believe to have committed any offence under this Act or for the search of any building, conveyance or place in which any narcotic drug in committing offence and any document evidencing thereof is kept or concealed. 10. Section 41(2) deals with authorization by any such officer of Gazetted Rank to any officer subordinate to him to arrest an offender or search a building, conveyance or place as against keeping of narcotic drug for the offence or any document evidencing such offence (both the provisions applied irrespective of day time or night time). 11. 10. Section 41(2) deals with authorization by any such officer of Gazetted Rank to any officer subordinate to him to arrest an offender or search a building, conveyance or place as against keeping of narcotic drug for the offence or any document evidencing such offence (both the provisions applied irrespective of day time or night time). 11. While Section 41 of the Act deals with empowerment for issuance of a warrant or authorising the subordinate officers by a Gazetted Rank Officer for arrest and search; Section 42 empowers the actual entry, search and seizure and arrest without warrant or without the above mentioned authorisation, and what is important among the facts of the present case on hand is the proviso to Section 42 which provides that if search officer has reason to believe that the search warrant or the authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape by an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording grounds of his belief ; and according to Section 42(2) of the Act, if any information in writing under sub-section (1) was taken or recording of grounds for his belief under the proviso occur, then the officer shall within 72 hours send copy thereof to his immediate official superior. 12. As the seizure in this case occur during night time, the recording of the grounds of the belief that offender may escape or evidence may be concealed in case if time is given for search warrant or authorisation shall have to be made and the same should be sent to the superior officer within 72 hours. Again according to Section 42(2) of the Act, the information in writing also should reach the superior officer in time. Ex.P1 is not the original of the information, but only a copy and that was received at 10.30 A.M. on 27.3.2000, but it was sent to Court as per evidence of P.W.8 on 29.3.2000. The grounds of belief has not been recorded. Thus the counsel argued for violation of Section 41(1) and 42(2). 13. Ex.P1 is not the original of the information, but only a copy and that was received at 10.30 A.M. on 27.3.2000, but it was sent to Court as per evidence of P.W.8 on 29.3.2000. The grounds of belief has not been recorded. Thus the counsel argued for violation of Section 41(1) and 42(2). 13. Mr.P.N.Prakash, learned Public Prosecutor relied upon Explanation to Section 43 of the Act, which is as follows: "For the purpose of this Section give expression "Public Place" includes any public conveyance, hotel, shop or other places intended for use by, or accessible to, the public." According to him Section 43 does not discriminate between the public conveyance which is stationery and a public conveyance which is in transit; the phrase used is 'in public place or in transit'; not, 'in public place and in transit'; usage of "or" is clearly disjunctive. He would further argue that if the interpretation canvassed by appellants is accepted, it would lead to anomalous results and violence of the very statute. 14. Reliance was placed upon in a case law reported in Ganga Bahadur Tapa vs. State of Goa ( 2000(10) SCC 312 ), wherein a similar argument was advanced that a room in a hotel when it is occupied by a customer cannot be said to be a public place, as no one has thereafter a right to enter into that room except that occupier and the owner of that room. This argument is similar to the one placed on behalf of the appellants that the lorry even though is a public conveyance, when once become a contract carriage soon after taken on lease by an individual, loses its character of public place. But such an argument was found by the Supreme Court in the above cited case as of no acceptable substance. As between the above cited judgments 2001 Crl. Law Journal 1945 (supra) and 2000(10) SCC 312 , the latter is acceptable because it is the verdict of the Supreme Court, whereas the former is that of a single Bench of a High Court. 15. It is not also of good and acceptable reasoning to say that a public conveyance after becoming a contract carriage will lose its character as public. The public conveyance will always be of that kind and subject to that character only a private individual temporarily converts it into his use. 15. It is not also of good and acceptable reasoning to say that a public conveyance after becoming a contract carriage will lose its character as public. The public conveyance will always be of that kind and subject to that character only a private individual temporarily converts it into his use. Even in a public transport bus it is only the ticket holders who may have right to entry; and that by itself does not exclude the right of entry of an investigating officer; and it may not be refused to him to construe it as a public conveyance. According to explanation to Section 43, by accepting the arguments of the learned Public Prosecutor, it is found that the stationed lorry is a public place. As it was admittedly not, 'in transit,' the usage of such phrase ('in transit') in Section 43 is rightly not invoked by virtue of the evidence of the Intelligence Officer that no search was undertook by them as A1 himself upon interrogation has surrendered the contraband by taking it from the upper portion of the cabin of the lorry. Since there was no search under Section 42, it may not be applicable. Since the entry into the lorry itself comes not in the purview of Section 42, which deals with entry and search upon building, conveyance or enclosed place; and that it comes only under Section 43 which deals with seizure in any (public conveyance) public place, and as stationed lorry was considered as a public place, what is applicable is only Section 43 and not 42. 16. This view gets strengthened by the following observation made in State of Haryana Vs. Jarnail Singh and another(AIR 2004 SCW 2962) "Section 42 and 43 contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while S.43 contemplates a seizure made in any public place or in transit. If seizure is made under S.42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in S.43 of the Act and, therefore, if a public conveyance is searched in a public place, the Officer making the search is not required to record his satisfaction as contemplated by the proviso to S.42 of the NDPS Act for searching the vehicle between sunset and the sunrise. There is no such proviso in S.43 of the Act and, therefore, if a public conveyance is searched in a public place, the Officer making the search is not required to record his satisfaction as contemplated by the proviso to S.42 of the NDPS Act for searching the vehicle between sunset and the sunrise. In the instant case, the tanker was moving on the public highway when it was stopped and searched. Section 43, therefore, clearly applied to the facts of the case. Thus there was no requirement of the Officer conducting the search to record the grounds of his belief as contemplated by the proviso to S.42. More so, when Superintendent of Police was also a member of the searching party." In this case also the seizure was made by a team headed by P.W.8 an officer of Gazetted Rank who is empowered to conduct search under Section 41(2) of the Act and so is not subject to trappings of Section 42. 17. The observations made in the above case finds favour in M.Prabhulal vs. Assistant Director, Directorate of Revenue Intelligence (2003 AIR SCW 4975), in which the following was observed. "When the Gazettedd Officer has himself conducted the search, arrested the accused seized the contraband, he was acting under S.41 and, therefore, it was not necessary to comply with S.42. ... It is clear from the language of sub-section (2) of S.42 that it applies to officer contemplated by sub-section (1) thereof and not to a Gazettedd Officer contemplated by sub-section (2) of S.41, when such Gazettedd Officer himself makes an arrest or conducts search and seizure. ... It can, thus, be seen that Ss.42 and 43 do not require an officer to be a Gazetted Officer whereas S.41(2) requires an officer to be so. ... Section 42(2) is not applicable when search, seizure etc. is conducted by a Gazettedd Officer under S.41(2) and (3)." 18. The said observation was also relied in a subsequent case in G.Srinivas Goud vs. State of A.P. (2005 AIR SCW 4905) wherein it was observed as follows: "... the said requirement under S.42(2) need not to be extended to cases of arrest, search and seizure by officers of Gazettedd rank. ... The need for reporting under S.42(2) arises because the officer proceeds without authorisation in terms of S.41(1) or 41(2). ... the said requirement under S.42(2) need not to be extended to cases of arrest, search and seizure by officers of Gazettedd rank. ... The need for reporting under S.42(2) arises because the officer proceeds without authorisation in terms of S.41(1) or 41(2). ... S.42(2) has to be confined to cases where the action is without authorisation by officers below the rank of Gazetted officers without authorisation." There is also no violence of Section 50 of the Act in this case as the recovery was not from the person of the accused. (vide. 2003 Drugs Cases (Narcotics)1 Supreme Court of India). 19. Thus, I find that in this regard there is no statutory violation as submitted by the learned senior counsel for the appellants. 20. The second limb of argument advanced by the learned senior counsel for the appellants is upon the fact that prosecution lacks evidence to show that the seized articles alone was sent for analysis. 21. In this connection a discussion over the evidence adduced on this aspect is very much essential. As aforesaid, the Intelligent Officers, participated in the seizure are P.W.1, P.W.2 and P.W.6 under the leadership of P.W.8, an Officer of Gazetted Rank. A careful perusal of their evidence would go to show that what they found in the two jute bags (Ex.P.28) were 14 big packets and 12 small packets respectively and from each of which two samples of 5 grams each were taken making a total of 52 samples (S1 to S52)which were marked as Ex.P29 series. After taking the sample, the 26 packets (Exs.P1 to P.26) containing the residue were put in a trunk box (Ex.P.27). According to them these Ex.P.27, P.28 and P.29 were sealed by seal No.12 also by obtaining the signature of accused and independent witness (P.W.5) along with a mahazar (Ex.P.6) depicting the entire process of seizure. That apart there were statements under Section 67 recorded from the accused. They are Exs.P.23, P.24, P.13 and P.14. The Report under Section 57 are Exs. P.27, P.12 and P.40. Process of arrest was over on 29.3.2000. The seized articles, samples and the accused were brought by P.W.6 to the remanding Magistrate on the evening of 29.3.2000. 22. Regarding the initials of Judicial Magistrate put on the samples, what P.W.1 deposed in the course of cross-examination is as follows:- 23. P.27, P.12 and P.40. Process of arrest was over on 29.3.2000. The seized articles, samples and the accused were brought by P.W.6 to the remanding Magistrate on the evening of 29.3.2000. 22. Regarding the initials of Judicial Magistrate put on the samples, what P.W.1 deposed in the course of cross-examination is as follows:- 23. It is found that among the samples S1 to S52 found in Ex.P29, it is only in the last cover containing S.52, the remanding Magistrate has put his initial and he has not put in his initial or Court seal in any of the remaining samples viz., S1 to S51, which alone comprise odd Nos.S1, S3, S5, etc., up to S51, that have been sent for chemical analysis. Thus, it is made known that none of the samples of S1, S3...... up to S51, the odd Nos. which were sent for chemical analysis contained the initial of remanding Magistrate. 24. According to P.W.6, to whom the remanding Magistrate entrusted the properties they were later on brought to and deposited in the NCB godown at about 9.30 P.M. on 29.3.2000. The said properties are Exs.P27 trunk box containing Exs.P1 to P.26, the residue of contraband after taking sample, Ex.P.28 series the empty gunny bags and Ex.P.29 containing the samples; for the deposit of all of which Ex.D1 godown receipt was issued by P.W.9 the Intelligence Officer, who prepared the godown receipt NO.8/2000. But under Ex.D1 as stated therein it is only the properties bearing seal No.11 that were shown to have been received by him in the godown. In this connection evidence of P.W.6 is as follows:- "Ex.D1 is the godown receipt issued to me by the office. According to the mahazar Ex.P.6 seal number 12 has been affixed on all the properties. According to Ex. D1 godown receipt the seal number is 11. I am not sure why two numbers i.e. 11 and 12." 25. Subsequently it is on 4.4.2000 the properties were taken back by P.W.6 from the godown and were produced before the Special Court under NDPS Act. On the same day P.W.6 received the samples along with Ex.D2 letter and they were produced by him on the next day before the laboratory for chemical analysis. Here again there was no seal affixed by the Special Judge upon the samples. On the same day P.W.6 received the samples along with Ex.D2 letter and they were produced by him on the next day before the laboratory for chemical analysis. Here again there was no seal affixed by the Special Judge upon the samples. P.W1's evidence in this regard is as follows:- @rh/bgh/29 tupirapy; jdp ePjpkd;wj;jpd; Kj;jpiua[k; ifbahg;gKk; ,y;iy.@ Thus, it is made clear that the odd Nos. of the samples taken through S1 to S52 that were sent to the chemical analysis through P.W.6 did not contain either the seal or initial of remanding Magistrate or those of the Special Judge. 26. P.W.4 is the Chemical Analyst. She deposed that with the letter of the Special Judge through Ex.P.20 dated 6.4.2000, 26 covers containing S1, S3, S5, S7 etc., up to S51 were received by their office along with one Test Memo (Ex.P21). She had further contended that upon her direction two Analysts by name K.C.Pillai and P.K.Sharma analysed the contents of the covers and she reported through Ex.P.22 dated 6.6.2000 returning also the empty covers of Ex.P29 series. She did not say anything about the comparison of the seals in the sample and that found in the Test Memo. She did not also say anything about the comparison of any other seal made by her personally. It is also not in the evidence as to whether the persons who took actual analysis viz., K.C.Pillai and P.K.Sharma have also made such comparison of seals. 27. What was deposed by P.W.4 is as follows:- 28. Regarding the Test Memo Ex.P21 I am able to find a seal of the Special Court dated 28.6.2000. But the date of drawal mentioned thereon is 28.3.2000. Unfortunately column 5 did not mention its date of despatch. In column 9 thereon the facsimile seal also is empty. There is also no endorsement of the signatory K.C.Pillai for having compared the seals of the samples and Test Memo. That is why Ex.P.22 the report dated 6.6.2000 of the Analyst contained no seal No. What is mentioned thereon is that the seals of each package were compared with the respective facsimile given on the above referred letter and found to tally. The referred letters are D.No.449/2000 dated 4.4.2000 and No.48/1/4/2000/NCB/MDS A.No.97/2000. It is important to mention the Test Memo (Ex.P.21) contained no facsimile seal. That Ex.P21 is undated. P.W.6 the signatory thereto put his signature without any date. The referred letters are D.No.449/2000 dated 4.4.2000 and No.48/1/4/2000/NCB/MDS A.No.97/2000. It is important to mention the Test Memo (Ex.P.21) contained no facsimile seal. That Ex.P21 is undated. P.W.6 the signatory thereto put his signature without any date. As aforesaid no despatch date was found in column 5 thereof. Ex.P.22 the chemical report also did not mention the seal No. as 12. 29. By relying upon the above materials on record Mr.B.Kumar, learned senior counsel appearing for the appellants raised the following points and argued that the prosecution evidence is lacking on the aspect that what was seized was alone sent to chemical analysis. Stress was made that sanctity of sealing was not made out and chances of tampering was not ruled out; and that link evidence to the effect that sample was retained intact before it was sent to chemical analysis, was unsatisfactory. The points raised in support thereof are as follows:- 1. The seal No.12 said to have been used upon the recovered articles was not given to independent witnesses; nor was it covered and sealed in order to avoid misuse of the same. 2. Non production of godown register which may explain as to in what context P.W.9 was made to mention in Ex.D1 (godown receipt) as to what was received by him was only articles with seal NO.11 from P.W.6 while the latter was said to have been entrusted only with seized articles containing seal No.12. 3. Excepting upon the cover containing sample S52 none of the odd Nos. of the said packets S1, S3, S5 etc., up to S.51 that were sent to chemical analysis, contained either the seal or initial of any one of the remanding Magistrate or Special Judge. 4. Test Memo. (Ex.P21) contains no date of its despatch; it also does not contain facsimile seal. Test Memo contains undated signature of P.W.6. The chemical report Ex.P22 did not mention anything about seal No.12 in specific. 5. Failure on the part of P.W.4 to speak as to whether she personally compared the seals in the samples and other records or that the comparison was made by K.C.Pillai and P.K.Sharma, her subordinates who actually underwent the analysis; especially while the receipt of 26 samples through S1, S3, S5 etc., up to S51 was stated to have been received by K.C.Pillai, who was the signatory to that effect in the Test Memo Ex.P.21. 6. 6. Non examination of K.C.Pillai and P.K.Sharma in order to speak about comparison of seals made by them. 30. Mr.P.N.Prakash, learned Public Prosecutor submitted that the mentioning of different seal in the godown receipt is no longer a discovery of defence side; but it was without being suppressed, marked as Ex.P29 on the side of the prosecution itself. In fact P.W.9 who is the author of, Ex.P.29/Ex.D1 in his evidence has stated that "In the forwarding memo written by the Intelligence Officer, Seal No.12 was put and the same seal also appeared on the seized property. While writing the godown receipt I inadvertently the seal No.11. This is purely a oversight on my part." 31. If this is really an inadvertence, the witnesses were conscious of the fact of inadvertence, they would have immediately thereafter endeavoured to correct it through process known to law or would have brought their inadvertence to the knowledge of the concerned court. But P.W.6 had spoken to, in this regard, only as follows:- "I did not notice the difference about the seal number in Ex.D1 and P6 at the time of filing complaint. ... There is no document in the complaint to show that, when I took the property from the godown before filing of the complaint." No administrative action was also found mooted against the inadvertence on the part of P.W.6. 32. The learned Public Prosecutor submitted that no mistrust be placed upon the acts of the officers of the NCB, as there is a presumption to be drawn under Section 114 of the Evidence Act that all actions were done in the official course and also drew my attention to the following observation made by the Apex Court in State Government of NCT of Delhi Vs. Sunil and Another (2000 AIR SCW 4398) "We feel that it is an archaic notion that action of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. It's hangover persisted during post independent years but it is time now to start placing at least initial trust on the actions and documents made by the police. At any rate the court cannot start with the presumption that to police records are untrustworthy. As a preposition of law the presumption should be the other way around." 33. It's hangover persisted during post independent years but it is time now to start placing at least initial trust on the actions and documents made by the police. At any rate the court cannot start with the presumption that to police records are untrustworthy. As a preposition of law the presumption should be the other way around." 33. Reliance was also placed on Jagdish v. State of Madhya Pradesh (1981 SCC (Crl.)676), wherein it was held that "when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions." 34. Relying upon the case law in Leela Ram v. State of Haryana and Anr. (JT 1999(8) SC 274) the following observation was focused: "There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence.... There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not failing within a set pattern is unproductive and a pedantic exercise." 35. By relying upon the observations it was held as follows in State of Himachal Pradesh v. Lekh Raj & Anr. [1999(4) Crimes 337 (SC)] "Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful.... In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement." 36. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement." 36. The learned Public Prosecutor further submitted that under the guise of benefit of doubt no selective inference made on the side of appellants could be recognised to smash the case of prosecution which was otherwise built up nicely. In this connection reliance was placed upon the State of Haryana v. Bhagirath & Ors. [1999(3) Crimes 81 (SC)], wherein it was held that "Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the judge conscientiously and reasonably entertains doubt regarding the guilt of the accused.... Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which afford moral certainty to the judge." 37. In order to show that there is much satisfactory and other evidence available on the side of prosecution it was pointed out that as was held in Gopal Gani Ram and others v. Superintendent of Customs and Central Excisse C.I.U., Tiruchirapalli (1999 MLJ(Crl.) 387), retracted confession can also be the basis for conviction if there are materials to corroborate the said retracted confession. It was further observed in that case law that, irregularity in sealing sample by itself will not vitiate the prosecution case. 38. It was submitted by the learned Public Prosecutor that the factor that Ex.P6 mahazar was signed by the independent witness and accused along with the fact that all the accused have given statements under Section 57 and 67 of the Act; and the fact that recovered articles signature of accused themselves were obtained in the scene of occurrence along with that of the witnesses and officials, shall only indicate the guilt of the accused. 39. The learned Public Prosecutor further contended that the facts in Doulatram's case ( AIR 1980 SC 1314 ; in Vathsalas' case 1993 SCC (Crl.) 1082; and in Gurbag Singh case (2000 AIR SCW 670) are different in nature and are distinguished from the facts of this case. 39. The learned Public Prosecutor further contended that the facts in Doulatram's case ( AIR 1980 SC 1314 ; in Vathsalas' case 1993 SCC (Crl.) 1082; and in Gurbag Singh case (2000 AIR SCW 670) are different in nature and are distinguished from the facts of this case. It was pointed out that so much of delay of three months in sending the samples as found in Vathsala's case is not available here; The doubt as to in whose custody the samples remain was raised in Doulatram's case; and that is not made out in this case; The adverse circumstances that parcels containing the samples were not sealed by the officers in-charge of the police station as found in Gurbag Singh's case also did not occur here. 40. Upon going through the entire case law it is understandable that despite upon very many grounds that the prosecution has been soundly built up, still it is the duty of the prosecution to show the identity of the samples and sanctity of the process of sealing; that there was no chance of tampering the samples still it reached the chemical analyst; and that what was recovered alone was sent to analyst; these are all vital factors to be established simultaneously. 41. There are quite number of case laws in which it was held that while possibility of tampering samples were available, then there cannot be a conviction on legal basis. Those case laws are as follows:- 1993 Criminal Law Journal 2761; 2005 (2) Acquittal 414; 2005 Criminal Law Journal 4580; 2000 Criminal Law Journal 2579; 2005 (2) Acquittal 419. 42. The following is the case law where the proposition that prosecution has to prove that articles recovered alone were sent to analysis. 2005 (1) (Crimes) 573. 43. For the non production of Malkhana Register much was spoken to in the following case laws in State of Rajasthan v. Gurmail Singh 2005 (1) (Crimes) 346 (SC) and Eze Val Okeke @ Val Eze v. Narcotic Control Bureau (2005 (1) (Crimes) 573). 44. To show that the seal used in the scene of occurrence should have been covered and sealed in order to avoid its misuse, the following are the two case laws:- (i) 2005 (1) (Crimes) 573 (supra) and (ii) 2000 Criminal Law Journal 271. 45. 44. To show that the seal used in the scene of occurrence should have been covered and sealed in order to avoid its misuse, the following are the two case laws:- (i) 2005 (1) (Crimes) 573 (supra) and (ii) 2000 Criminal Law Journal 271. 45. In Wessel Van Beelan v. State of Goa (2000 Crl.L.J.271), it was held: "The normal procedure which the police should adopt, so as to remove any doubt regarding availability and accessibility of the specimen seal, after the envelope containing contraband is sealed with such specimen seal, should be that at the time when the envelop containing contraband is sealed, the raiding officer would simultaneously take the specimen impression of the said seal on a letter which could be simultaneously prepared for sending the same to the Chemical analyser. Once the impression of the specimen seal is so obtained, the specimen seal should be deposited immediately on return to the police station, so as to ensure that the said specimen seal is not available to the raiding officer. A full proof method in this regard could be devised by the police, which would ensure that the specimen seal would not be available to the raiding officer afterwards." Ajay Kumar Naik v. State of Orisa (1995 Crl.L.J. 82) "Undoubtedly in our system of judicial administration, in cases of grave offences like the one at hand, search and seizure form an integral part in the process of investigation. The incriminating materials recovered from the accused and duly identified during the proceeding go a long way in connecting the accused in the case. In a case where the subject matter of the offence committed is an article for which expert opinion is necessary to prove the nature of the contraband article, it is all the more necessary and imperative on the part of the investigating agency to seal it in such manner and keep it in such custody so as to wipe out the slightest doubt in the mind of the Court that there could not have been any possibility whatsoever that the article so seized could be tampered, with before it could reach the public analyst. To support such a view reference may be made to the case reported in AIR 1980 SC 1314 : (1980 Crl.L.J 929)..." 46. To support such a view reference may be made to the case reported in AIR 1980 SC 1314 : (1980 Crl.L.J 929)..." 46. After going through the proposition enunciated in the case laws cited by either side, it is made clear that minor discrepancy may not constitute a valid ground for disbelieving the prosecution case, which was otherwise built up profoundly well. Proof beyond the reasonable doubt is the same as proof which afforded moral certainty to the Judge. There cannot be a selective inference so as to thwart the well built case of prosecution. 47. True it is that there are statements of accused which of course were retracted. True that the signature of accused and independent witnesses found upon the articles recovered would go to establish that fact of seizure in favour of prosecution. 48. But in a case where the subject matter of the offence committed is the articles for which expert opinion is necessary to prove the nature of the contraband article, it is more imperative on the part of the investigating agency to adopt such a method so as to safeguard the sanctity of seal of samples; that the seal used was covered and sealed in order to improbabilise the misuse of it; to show that the same articles were taken out from the godown after an entrustment of the same in the godown; that the same has been sent to Chemical Analyst; and that comparison mechanism was cleverly adopted by the Analysts; and that report of Chemical analyst does pertain to the articles actually seized. 49. Unless these links of evidence are independently proved and also collectively connected, the benefit of the consequential serious and genuine doubt may only tilt the balance against the prosecution case. Even if any link is cut in the above said chain, doubt to a normal mind will arise. When the law is stringent the procedure should be scrupulous and the agency which acts under the law should adopt all care and caution avoiding any doubt arising thereof. 50. In this particular case one cannot rule out the possibility that the investigating agency might have been so anxious to preserve the seized articles huge in quantity with its samples from being carelessly dealt with by its own officers and so might have retained it and sent only articles of seal No.11 through P.W.6 to the remanding Magistrate. 50. In this particular case one cannot rule out the possibility that the investigating agency might have been so anxious to preserve the seized articles huge in quantity with its samples from being carelessly dealt with by its own officers and so might have retained it and sent only articles of seal No.11 through P.W.6 to the remanding Magistrate. This probability cannot be ruled out because, (i) P.W.9 the Godown Keeper mentioned in Ex.D1 that he was entrusted only with articles of seal No.11; (ii) the remanding Magistrate did not put his initial or seal in Ex.P29 the samples sent to analyst; (iii) the way in which his seal and initial was found on cover containing S51. If his seal is upon Ex.P29 or not upon it, in either case question arises as to when entire Ex.P29 was sealed how he could put his initial in cover of S51, while entire Ex.P29 was sealed in scene of occurrence. Alternatively if Ex.P29 was not sealed then why no initial in all samples were obtained; and what would be the result. Can the officers be told to have acted carefully in adopting the devise of sampling without throwing the burden on the Magistrate. 51. Plea of inadvertence in mentioning seal No.11 in Ex.D1 also becomes improbable, as P.W6 himself deposed that till filing of the complaint, this inadvertence was noted by none; and that no action was later also mooted against anyone upon the so called inadvertence. Why the Godown Register was not produced in order to show it as only inadvertence is not made known. It may be put by the prosecution that for no benefit why should the officers keep themselves the seized articles with them, sending some other articles of seal No.11 to Court. But probability is only chance of occurrence and does not require presumption of carefulness. However, the mistake not considered as inadvertent but indicating that all is not well may only be taken that it is mysterious and so doubtful. Taking the probability, the exact seized articles with seal No.12 after its seizure in the early hours of 28.3.2000 has seen the light of the judicial arena before the Special Judge only on 4.4.2000, with a gap of more than seven days which went fatal in (Vathsala's case). 52. Taking the probability, the exact seized articles with seal No.12 after its seizure in the early hours of 28.3.2000 has seen the light of the judicial arena before the Special Judge only on 4.4.2000, with a gap of more than seven days which went fatal in (Vathsala's case). 52. However true the seizure may be and whatever importance can be attached to the statements of the accused even it was retracted, the fact that the contraband contained the signature of accused, may only indicate that articles alleged as Narcotic Substance alone were seized; beyond which it may not indicate anything; for which independent proof is required for the other links. Proof of seizure alone is not sufficient; the other link that seized articles are Narcotic Substance is very important to be proved. That other link has not been substantiated. The reasons for such finding is not merely on the wrong seal of No.11; but also upon other reasons aforesaid, which may again be mentioned here. 53. The fact that P.W.4 did not mention about the comparing of seals; along with the fact of non mentioning of despatching day and the undated signature of P.W.6 and the failure to note the facsimile seal in Ex.P.21; along with the failure of mentioning in the report Ex.P.22; the evidence of P.W.4 that she personally did not compare the seal; and the non examination of K.C.Pillai and P.K.Sharma who have actually analysed will go a long way in creating not only a serious doubt but also a probability that what was seized was not sent to Analyst. This position could not be ruled out. 54. Similarly, the failure to cover and seal the very seal No.12 itself may not avoid the misuse of the seal which has a bearing over the factor of tampering the seal. I do not for a moment say that seals were tampered. What I only say is that the devise of avoidance thereof has not been followed by the agency. The end result of the casual and careless manner of using the above said devise will lead not to a minor discrepancy but to an improbability with disastrous consequences against the prosecution. 55. Recording of statements from accused, obtaining signature of accused in sample may only go to prove the successful seizure; and seizure only. The end result of the casual and careless manner of using the above said devise will lead not to a minor discrepancy but to an improbability with disastrous consequences against the prosecution. 55. Recording of statements from accused, obtaining signature of accused in sample may only go to prove the successful seizure; and seizure only. To prove that what was seized only a contraband a proven method of reaching of sample from collection to Chemical Analyst, shall have to be followed as enunciated in (Anandi v. State rep. by N.I.B. C.I.D. Trichy) (2002(1) MWN Cr. 118), Mr.Ravi & Ors. v. State by Inspsector of Police(2000(4)444 Crimes 1), 2005(1) Crimes 573, Des Raj v State of Punjab(2005(2) Acquittal 414) and Wessel Van Beelan v. State of Goa, (2000 Crl.L.J. 271). It is also a basic principle that corpus seized alone was shown to have been sent for analysis, the negative form of which could not get avoided for reasons mentioned in paragraphs 50 to 54 (supra), raising a serious doubt, making the case of prosecution to remain unproved on vital aspect. 56. In the result, the appeal is allowed. The conviction and sentence dated 15.3.2002 in C.C.No.113 of 2000 imposed on the appellants for the offence under Section 8(c), r/w 21, 25 and 29 of NDPS Act by the Special Judge NDPS Act Cases (Principal Subordinate Judge), Cuddalore are set aside. The appellants are ordered to be set at liberty forthwith unless they are required in any other case. In so far as the property and fine amount is concerned, separate orders will accordingly be passed by the trial Court after the expiry of time for appeal if any.