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2011 DIGILAW 2553 (RAJ)

Abid Beig v. State of Rajasthan

2011-11-23

R.S.CHAUHAN

body2011
Hon'ble CHAUHAN, J.—Having been convicted for offences under Sections 8/21 of the NDPS Act (`the Act', for short), and having been sentenced to ten years of rigorous imprisonment, having been imposed with a fine of Rupees one lac, and further directed to undergo one year of rigorous imprisonment, in default thereof, vide judgment dated 20.7.2004 passed by Special Court, (NDPS Cases), Jaipur, the appellant has approached this Court. 2. The brief facts of the case are that on 31.8.2003, around 1:15 PM, the SHO, Police Station Kotwali. Mr. Surendra Singh (PW.10), received a secret information that there is a person standing in Govind Dev Colony, behind Chogan Stadium, in front of a shop belonging to Genesh Agency. The person is wearing blue and white striped shirt, and coca coloured trousers. He is about forty to forty-five years old. The informant further told him that the person is carrying smack in large quantity. Having received the said information, the said information was sent to the higher officers in compliance with Section 42 of the Act. Devendra Prasad (PW.2), FC was directed to procure the presence of two independent witnesses. Subsequently, at about 1:30 PM, the police party left for the designated place. At 1:35 PM, Devendra Prasad (PW.2) brought two independent witnesses, who were informed about the purpose of the raiding party. Around 1:45 PM, the party reached the destination, where they saw a person standing who matched the description given by the secret informant. When the person saw the police party, he tried to run away. The police party caught hold of him, and asked his name. He informed the police that his name is Abid Beig. After giving him a notice under Section 50 of the Act, Abid Beig was searched; from his personal search, 1 Kg. 8 grams 680 milligram of smack was recovered from inside his shirt. Out of this quantity, the police took out 50 grams by way of sample and placed it in a polythene bag. The polythene bag was subsequently placed in a while cloth bag and was properly sealed. Subsequently, the police filed a chargesheet against the appellant for offences under Sections 8/21 of the Act. In order to prove its case, the prosecution examined ten witnesses and submitted twenty-one documents. The defence did not examine any witness, but did submit two documents. The polythene bag was subsequently placed in a while cloth bag and was properly sealed. Subsequently, the police filed a chargesheet against the appellant for offences under Sections 8/21 of the Act. In order to prove its case, the prosecution examined ten witnesses and submitted twenty-one documents. The defence did not examine any witness, but did submit two documents. After going through the oral and documentary evidence, the learned Judge convicted the appellant as aforementioned. Hence, this appeal before this Court. 3. Mr. Anshuman Saxena, the learned counsel for the appellant, has raised the following contentions before this Court: firstly, that Section 50 of the Act lays down the procedure for personal search of a person. According to Section 50 of the Act, the recovery has to be made by an authorized person. In terms of Section 42 of the Act, the SHO of the police station is authorized. Mr. Surendra Singh (PW.10) has admitted in his cross-examination that although the recovery was made under his supervision, but he did not carry out "the personal search" of the accused. Therefore, according to the learned counsel, the requirement of Section 50 of the Act has not been fulfilled. Since the mandatory provision of Section 50 of the Act has been violated, the trial stands vitiated. 4. Secondly, although the FSL Report (Ex. P. 18) was tendered in evidence and was used as evidence, but the provisions of Section 293 Cr.P.C. have not been followed. According to Section 293(2) Cr.P.C. an opportunity should have been given to the accused to challenge the finding of the FSL and for calling the expert for cross-examination. However, no such opportunity was ever given to the appellant. Thus, the appellant's right to a fair trial has been violated. In order to buttress this contention, the learned counsel has relied on the case of Keshav Dutt vs. State of Haryana (JT 2010 (9) SC 25). 5. Thirdly, the contents of the FSL Report (Ex.P/18) were not brought to the notice of the accused while recording his statement under Section 313, Cr.P.C. Therefore, relying upon the case of Bheru Lal & Anr. vs. Union of India (2011 (1) Cr.L.R. (Raj.) 733 = 2011(3) RLW 2563), the learned counsel has contended that since the contents of the FSL Report were not brought to the notice of the accused, the FSL Report cannot be read against him. 6. vs. Union of India (2011 (1) Cr.L.R. (Raj.) 733 = 2011(3) RLW 2563), the learned counsel has contended that since the contents of the FSL Report were not brought to the notice of the accused, the FSL Report cannot be read against him. 6. Fourthly, accordingly to Girdhari Singh (PW.5), on 1.9.2003 he took the sample kept in the Malkhana to the FSL. However, as the said sample could not be handed over to the FSL, it was brought back in the evening and re-deposited in the Malkhana. On 2.9.2003, he again took the sample to the FSL. Accordingly to the learned counsel, it is imperative that when the sample is brought back into the Malkhana, an entry is to be made in the Malkhana register, and the person, bringing the sample back, has to sign either the Malkhana, register, or the Rojnamcha. However, in the present case, Prabhu Dayal (PW.7) has clearly stated that the signature of Girdhari Singh (PW.5) does not exist in the Rojnamcha. Thus, it is unclear whether the samples were duly brought back and re-deposited in the Malkhana, or not. Hence, the safe custody of the sample is shrouded in mystery. 7. Fifthly, according to the Recovery Memo (Ex.P/5), at the time of recovery, the sample was placed in a single polythene bag, which was subsequently kept in a white coloured cloth bag. However, according to the FSL Report (Ex.P/18), when the white cloth bag was opened, the FSL discovered two polythene bags. Since there is discrepancy, amounting to a contradiction, the number of bags in the white cloth bag, it clearly proves that the samples were tempered with. 8. Sixthly, relying on the cases of E. Micheal Raj vs. Narcotic Control Bureau (2008) 5 SCC 161 = 2008(4) RLW 3549 (SC)), and State of NCT of Delhi vs. Ashif Khan (2009) 4 SCC 42 ), the learned counsel has contended that it is absolutely essential that the percentage of the pure substance found in the sample has to be spelt out by the FSL. After all, the percentage determines the quantity of the substance seized from the offender. This in turn will determine the term of the sentence to which the accused is liable to. After all, the percentage determines the quantity of the substance seized from the offender. This in turn will determine the term of the sentence to which the accused is liable to. For, Section 21 of the Act clearly lays down different sentences, depending upon whether the quantity recovered from the offender is small quantity, more than small quantity but less than commercial quantity, or involves commercial quantity. However, in the present case, since the FSL has failed to mention the percentage of Diacetyl morphine, the actual quantity of substance contained in one kilogram of alleged smack is unknown. Hence, the learned Judge could not have convicted and could not have sentenced the appellant to ten years for an offence under Section 21 of the Act. 9. On the other hand, Ms. Alka Bhatnagar, the learned Public Prosecutor, has vehemently contended that Section 50 of the Act does not require the authorized person to "personally search" the offender. Section 50 of the Act clearly refers to Section 100 of Cr.P.C. Under Section 100, Cr.P.C., there is no requirement that it is the SHO, who has to personally search the offender. Therefore, even if the SHO has not searched the offender, it would not violate the requirement of Section 50 of the Act. Moreover, merely because Surendra Singh (PW.10) contradicts himself about personally searching the appellant, even then his testimony cannot be disbelieved. For, one of the settled principles of Criminal jurisprudence is that the doctrine of "falsus in uno falsus in omnibus" is inapplicable in India. Therefore, the Courts in India do not believe that "once a liar is always a liar." In order to buttress this contentions, the learned Public Prosecutor has relied upon the case of Bijoy Singh vs. State of Bihar ( 2002 9 SCC 147 ). 10. Secondly, in his statement recorded under Section 313, Cr.P.C., the appellant was clearly informed about the FSL Report (Ex. P/18). He was asked as to "what he has to say about the FSL Report." His reply was that "I don't know". According to the learned Public Prosecutor, once the exhibit was pointed out to him, the appellant cannot claim that he was not controverted with the FSL Report. Therefore, according to the learned Public Prosecutor, the FSL Report can certainly be read against the appellant. 11. According to the learned Public Prosecutor, once the exhibit was pointed out to him, the appellant cannot claim that he was not controverted with the FSL Report. Therefore, according to the learned Public Prosecutor, the FSL Report can certainly be read against the appellant. 11. Thirdly, there is no requirement in law that the FSL needs to reveal the percentage of the pure substance, or pure drug found in the substance. Therefore, even if the FSL Report (Ex.P/18) does not reveal the percentage of Diacetyl morphine, it would be an inconsequential fact. 12. Heard the learned counsel for the parties, perused the accused, exa-mined the impugned judgment and considered the case law cited at the Bar. Section 50 of the Act is as under: "50. Conditions under which search of persons shall be conducted.(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974)." (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior." 13. A bare perusal of the Section 50 of the Act clearly reveals that sub-clause (1) merely imposes a duty on the authorized person under Section 42 to tell the offender that he has an option to be searched either by a Gazetted Officer of any of the departments mentioned in Sec. 42, or before a Magistrate. Therefore, sub-clause (1) does not impose a duty upon the authorized person to "personally" carry out the search of the offender. Sub-clause (5) further gives an option to the authorized person that in case it is not possible for him to take the offender to a Gazetted Officer, or a Magistrate, he may have the person searched in the manner provided under Section 100, Cr.P.C. Section 100, Cr.P.C. is as under: 100. Persons in charge of closed place to allow search. (1) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of, such place shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein- (2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub-section (2) of Section 47. (3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. (5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witness; but no person witnessing a search under this section shall be required to attend the court as a witness of the search unless specially summoned by it. (6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person. (7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person. (8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 of the Indian Penal Code (45 of 1860). 14. A bare perusal of Section 100 Cr.P.C., reveals that it does not require the SHO to carry out a "personal search" of the offender. A conjoint reading of Section 50 of the Act read with Section 100 of the Cr.P.C., thus, makes it abundantly clear that there is no requirement that the authorized person has to "personally search" the offender. According to Surendra Singh (PW.10), the recovery was made under his supervision, but the search was made by a Constable. Even if this statement were taken to be true, it would not violate any of the requirements of Section 50 of the Act. Therefore, the first contention raised by the learned counsel for the appellant that the essential requirement of Section 50 of the Act has been violated, is clearly unacceptable. 15. As far as the second contention is concerned. Section 293 Cr.P.C. deals with reports of certain Government scientific experts. Therefore, the first contention raised by the learned counsel for the appellant that the essential requirement of Section 50 of the Act has been violated, is clearly unacceptable. 15. As far as the second contention is concerned. Section 293 Cr.P.C. deals with reports of certain Government scientific experts. It is as under: "Reports of Certain Government Scientific Experts.-(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. (2) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report. (3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. (4) This section applies to the following Government scientific experts, namely:- (a) any Chemical Examiner or Assistant Chemical examiner to Government; (b) the Chief Controller of Explosives; (c) the Director, of the Finger Print Bureau; (d) the Director, Haffkeine Institute, Bombay; (e) the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Laboratory; (f) the Serologist to the Government' (g) any other Government scientific expert specified, by notification, by the Central Government for this purpose." 16. The said provision has not attracted much of judicial attention. However, it is an important provision dealing with the admissibility and use of the report of Government Scientific Expert. Hence, the true scope and ambit of the provision needs to be annunciated. 17. According to the Evidence Act, a fact can be proved either through oral or documentary evidence. Part II of the Evidence Act deals with "Proof". Chapter V deals with "of Documentary Evidence". Hence, the true scope and ambit of the provision needs to be annunciated. 17. According to the Evidence Act, a fact can be proved either through oral or documentary evidence. Part II of the Evidence Act deals with "Proof". Chapter V deals with "of Documentary Evidence". Section 61 of the Evidence Act lays down that "the contents of documents may be proved either by primary or by secondary evidence." Section 62 of the Evidence Act further prescribes that "Primary evidence means the document itself produced for the inspection of the court." Moreover, Section 64 of the Evidence Act lays down the requirement that "Documents must be proved by primary evidence except in the cases hereinafter mentioned." Before a document can be used as a piece of evidence, it has to be "tendered into evidence." A document is said to be "tendered into evidence" when it is submitted as a document by either the prosecution, or by the defence before the learned trial court. It has to be proven by a witness. Only when it is `proven' by a witness, can it be marked as an exhibit. Rule 31 of the General Rules (Criminal), 1980 makes it mandatory for every document to be marked as an Exhibit. 18. Section 293 Cr.P.C. is an exception to the rule that the document needs to be "proved" before it can be admitted as a piece of evidence. The section permits the report of a Government Scientific Expert to be "used as evidence" without the proof of the document by calling the maker of the report as a witness. Thus, the report is "admissible" without a proof by a witness. In catena of cases, Section 293 Cr.P.C. has been interpreted as permitting the court "to use the report as evidence." However, a distinction has to be made between "use of evidence" and "tendering of evidence". Before a document can be "used as evidence", it has to be tendered into evidence. Section 293 Cr.P.C. merely does away with "proving" of the document. Since it is a report of the Government scientific expert it is presumed to be genuine. Thus, its authenticity need not be proved by a witness. Since it is relevant, it can be marked as an exhibited document. It is admissible without calling or examining the expert as a witness. (Ref. Since it is a report of the Government scientific expert it is presumed to be genuine. Thus, its authenticity need not be proved by a witness. Since it is relevant, it can be marked as an exhibited document. It is admissible without calling or examining the expert as a witness. (Ref. to H.P. Administration vs. Om Prakash (1972) 1 SCC 249 ; Balak Ram vs. State of Rajasthan 1994 Cr.L.J. 2451 (Raj.) (DB)]. Since it is admissible as a piece of evidence, therefore it can be "used as evidence" without its formal proof. However, a report of the State Forensic Laboratory is not admissible in evidence unless it is "tendered in evidence" and exhibited. 19. But this is not the complete ambit and scope of this provision. Merely because the report is relevant, and admissible and can be used as a evidence, it does not mean that its contents should be accepted ipsi dixit by the trial court. Sub-section (2) empowers the court to summon and to examine the maker of the report as a witness, if the court thinks fit. The said discretion can be used by the trial Court either suo-motu, or upon an application moved by the prosecution, or by the accused. Thus, the power under sub-section (2) can be used either suo-motu, or at the instance of the accused person. This is in the fitness of things. For, in case the report were to be used as an incriminatory piece of evidence against the accused, obviously, he must be given a chance to challenge the authenticity and the veracity of the contents of the report. His right to cross-examine the expert cannot be denied to him, ostensibly on the ground that the report can be "used as evidence" without being proven by a witness. Keeping in mind the concept of a fair trial, keeping in mind the principles of Natural Justice, it is, thus, imperative that before a report can be "used as evidence", an opportunity should be given to the accused to challenge the same. In large number of cases, it has come to the notice of this court that such reports are pointed out to the accused only at the time of recording his statement under Section 313 Cr.P.C., as was done in the present case. In large number of cases, it has come to the notice of this court that such reports are pointed out to the accused only at the time of recording his statement under Section 313 Cr.P.C., as was done in the present case. However, the adoption of such a procedure by the learned trial court deprives the accused of his valuable right to challenge the report under Section 293(2) Cr.P.C. It denies him a fair trial. Hence, before a report can be "used as evidence", the existence of the document should be brought to the notice of the accused. He should be given an opportunity to challenge the same. In case, he were to request the trial Court to summon the expert and to examine him, such a request ordinarily should be granted. He should be given an opportunity to cross-examine the expert about the basis of the contents of the report. Since the report contains the opinion of an expert, the accused should be given a chance to question and to demonstrate the weakness in the opinion. Although the report can be used as evidence, but it cannot be accepted as the gospel truth unless it is subjected to cross-examination. It is only when an accused forgoes his right to challenge the report, that report should be "used as evidence." For, by his refusal to challenge the same, the accused is deemed to have accepted the authenticity and veracity of the contents of the report. But sub-section (2) bestows a right on the accused to challenge the same. The said right is a substantive right which must be brought to the notice of the accused. By not bringing the said right to his notice, the right is reduced to being merely illusionary. Since the trial Judge is not just a mute witness to a trial, but is supposed to play a pro-active role, it is necessary for the learned trial judge to bring the existence of sub-section (2) of Section 293 Cr.P.C. to the notice of the accused. 20. The view of this court is fortified by the opinion of the Hon'ble Supreme Court in the case of Keshav Dutt (supra). 20. The view of this court is fortified by the opinion of the Hon'ble Supreme Court in the case of Keshav Dutt (supra). In the said case, the question was whether the report of the handwriting expert which was read against the accused should have been pointed out to the accused, and whether he should have been given a chance to challenge the same or not? The trial court has skirted the issue by holding that the defence counsel could have examined in their defence to rebut the findings of the Assistant Director, Forensic Science Laboratory, Haryana. The High Court also skirted the issue by observing that the science of handwriting being imperfect and inaccurate, it is very difficult, if not impossible to give the opinion that the writings were in the hand of one and the same persons. The High Court went on to observe that the Appellant did not have the courage to examine any counter expert in rebuttal of the report. The High Court recorded that the report having gone unrebutted could be relied upon without any demur. However, the Apex Court held otherwise and opined as under: We are afraid that we cannot concur with the views either of the Trial Court or of the High Court in the above regard. When the Trial Court chose to rely on the report of the handwriting expert (Ex. PR), it ought to have examined the handwriting expert in order to give an opportunity to the Appellant and the other accused to cross-examine the said expert. There is nothing on record to show that the Appellant and the other respondents had admitted the report of the handwriting expert. In our view, the Trial Court ought to have allowed the Appellant an opportunity to cross-examine the expert and both the Trial Court and the High Court erred in denying him such opportunity and shifting the onus on the accused to disprove Ex.PR which had not been formally proved by the prosecution. 21. Thus, Section 293 Cr.P.C. plays a pivotal role in assuring a fair trial to the accused. This aspect of the provision has been under-played by the judges and the lawyers alike. It is, hence, imperative to apply Section 293 Cr.P.C. in its full scope and ambit in order to ensure fair trial to the accused. 21. Thus, Section 293 Cr.P.C. plays a pivotal role in assuring a fair trial to the accused. This aspect of the provision has been under-played by the judges and the lawyers alike. It is, hence, imperative to apply Section 293 Cr.P.C. in its full scope and ambit in order to ensure fair trial to the accused. As pointed out above, by the Apex Court the trial Court should not scuttle its responsibility by placing the burden of proof on the accused to rebut the evidence contained in the report. 22. In fact, the trial court should first point out the existence of the report and then give opportunity to the accused to challenge the same. Needless to say, the importance of a fair trial cannot be undermined in the same of quick disposal or quick justice. For, justice hurried is also justice buried. In case an opportunity is not given to the accused to challenge the report of the Govt. Scientific Expert, the same cannot be used as evidence against them. 23. In the present case, there is nothing in the record to show that the appellant was given a chance to challenge the FSL Report (Ex.P/18). It was merely pointed out to the appellant while recording his statement under Sec. 313 Cr.P.C. Thus, the FSL report cannot be used as evidence against the appellant, as an opportunity to challenge the same has not been given to him. 24. As far as the contention with regard to Section 313 Cr.P.C., is concerned, the significance of Section 313 Cr.P.C., has been noticed by the Apex Court in catena of cases. 25. In the case of Nirmal Pasi & Anr. vs. State of Bihar (JT 2002(6) SC 28), the Hon'ble Supreme Court held as under: The purpose of recording statement under Section 313 of the Cr.P.C. is to enable the accused-person to explain any circumstances appearing in the evidence against him. A piece of incriminating evidence relied on by the prosecution and found proved by the Court so as to rest conviction of the accused thereon must be put to the accused in his statement under Section 313 of the Cr.P.C. enabling him to offer such explanation as he may choose to do. Unless that is done, the piece of incriminating evidence cannot be relied on for finding a verdict of guilty. 26. Unless that is done, the piece of incriminating evidence cannot be relied on for finding a verdict of guilty. 26. In the case of State of Maharashtra Through CBI vs. Sukhdev Singh @ Sukha & Ors. (1992 Cr.L.J. 3454), the Apex Court observed as under: It is, indeed, trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances laid on record with a view to giving him an opportunity to offer an explanation if he chooses to do so. Section 313 Cr.P.C. imposes a heavy duty on the court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. The words `shall question him' clearly bring out the mandatory character of the clause and cast an imperative duty on the court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. 27. From the above, it is clear that it is the mandatory duty of the trial court to put all such material circumstances on which the prosecution relies to base a conviction to the accused when his statement is recorded under Section 313 of the Code. 28. While dealing with the manner in which the statement should be recorded, in the case of Ajay Singh vs. State of Maharashtra ( AIR 2007 SC 2188 ), the Hon'ble Supreme Court directed as under: It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questioning must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which perturbed or confused, can readily appreciate and understand. 29. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which perturbed or confused, can readily appreciate and understand. 29. In the case of Sharad Birdhichand Sarda vs. State of Maharashtra ( AIR 1984 SC 1622 ), the Hon'ble Supreme Court had clearly stated that those circumstances which have not been put to the appellant in his statement under Sec. 313 Cr.P.C., they must be completely excluded from consideration because the appellant did not have any chance to explain them. Similarly, in the case of Kanhai Mishra @ Kanhaiya Misar vs. State of Bihar (2001) 3 SCC 451 = RLW 2001(2) SC 321), the Hon'ble Supreme Court held that whereas circumstance has not been put to the accused, the same cannot be used against him. While holding this opinion, the Hon'ble Supreme Court had relied on the case of Kehar Singh & Ors. vs. State (Delhi Admn.) (1988) 3 SCC 609 ). 30. In case of Bheru Lal (supra), this Court had elaborately dealt with the procedure for recording statement under Section 313, Cr.P.C. This Court had clearly pointed out that the trial Court is not expected to ask a series of questions simultaneously, or to ask a question in a compound form. Since the accused person may not be highly educated, and, in fact, may be an illiterate, it will be in the interest of justice to ask simple questions to the accused offender. Moreover, all the incriminating evidence, which can be read against the accused person, should be brought to the notice of the accused person. In case, the procedure, as interpreted by the Hon'ble Supreme Court in catena of cases, is not allowed while recording statement under Section 313, Cr.P.C., then it can be safely held that a prejudice has been caused to the accused person. Hence, he would be entitled to an acquittal on the ground that he has been subjected to an unfair trial. 31. Hence, he would be entitled to an acquittal on the ground that he has been subjected to an unfair trial. 31. In the present case, a bare perusal of the statement of the appellant, recorded under Section 313, Cr.P.C., clearly reveals that question No. 10 was as under: PW.9 Mukesh Sharma, presently the SHO, Sanjay Circle has deposed before the Court that on 31.8.2003 he received the case diary and continued the investigation thereafter. During the course of investigation, he has recorded the statements of the witnesses, as told to him by them. He has also made the site-plan (Ex.P/17). FSL Report is Ex. P/18. What do you have to say? Answer-Don't know. 32. A bare perusal of Question No. 10 would clearly reveal that three facts have been pointed out to the appellant: firstly, that the investigation was continued by Mukesh Sharma after 31.8.2003 and he had recorded the statements of the witnesses. Secondly, that the site plan is marked as Ex.P/17. Thirdly, that the FSL Report is Ex.P/18. The series of question is against the opinion of the Apex Court as expressed in the case of Ajay Singh (supra). To say the least, such string of questions is bound to confuse the accused. For he may not know how to reply to three questions posed simultaneously. Thus, such questioning violates the concept of a fair trial. 33. Most interestingly, the contents of the FSL Report were never brought to the notice of the appellant. The learned Judge did not point out to the appellant that according to the FSL Report, the sample contained Diacetyl morphine. Therefore, the accused was not given a chance to admit or deny the contents of the report. Since the incriminating evidence has not been brought to the notice of the accused appellant, obviously, the same cannot be used against him. 34. The safe custody of the sample is a fact which must be proved beyond a reasonable doubt by the prosecution. After all, a case under the NDPS Act hinges on the sample taken by the investigating agency from the accused. However, in the present case, the prosecution has failed to prove that the sample taken from the appellant was kept safely in the custody of the police. According to Girdhari Singh (PW.5), he had taken the sample on 1.9.2003 to the FSL. However, in the present case, the prosecution has failed to prove that the sample taken from the appellant was kept safely in the custody of the police. According to Girdhari Singh (PW.5), he had taken the sample on 1.9.2003 to the FSL. However, the same could not be handed over to the FSL on the said date. Therefore, he had brought it back in the evening and redeposited the same in the Malkhana. According to him, he had taken the sample back to the FSL on 2.9.2003. When the sample was brought back and redeposited in the Malkhana on 1.9.2003, it was imperative that its re-entry should have been reflected in the Malkhana Register. Moreover, the Rojnamcha should have indicated that Girdhari Singh (PW. 5) has brought back the sample on the said date. Neither the Malkhana Register shows that the sample was brought back, nor does the Rojnamcha reflected the fact that Girdhari Singh (PW.5) had come back and had brought back the sample. Thus, the issue where the sample was kept between 1.9.2003 and 2.9.2003 is unclear. Hence, the safe custody of the sample has not been established by the prosecution. 35. The safety of the sample further becomes doubtful from the fact that according to the recovery memo (Ex.P/5) when thee sample was taken from the appellant, it was placed in a single polythene bag. The said polythene back was subsequently sealed in a white cloth bag. However, according to the FSL, it had received a white cloth bag containing the sample. According to the FSL report (Ex.P/18), when the white cloth bag was opened, the FSL discovered two polythene bags instead of one. Since according to the police they had placed a single polythene bag and according to the FSL they had discovered two polythene bags, obviously the sample had been tampered with. Once it is established that the sample has been tampered with, then the entire prosecution case shatters to pieces. For, the Court no longer knows the nature of the substances which was allegedly recovered from the appellant. Therefore, a grave doubt is created about nature of the substance recovered from the accused. Hence, the accused is entitled to benefit of doubt. Section 21 of the Act is as under: 21. For, the Court no longer knows the nature of the substances which was allegedly recovered from the appellant. Therefore, a grave doubt is created about nature of the substance recovered from the accused. Hence, the accused is entitled to benefit of doubt. Section 21 of the Act is as under: 21. Punishment for contravention in relation to manufactured drugs and preparations.-Whoever, in contravention of any provisions of this Act, or any rule or order made or condition of licence granted there-under, manufactures, possession, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,- (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both; (b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 36. A bare perusal of the said section clearly reveals that different terms of the sentences have been prescribed depending upon whether the contravention involved is of small quantity, less than commercial quantity, or commercial quantity. Thus, it is imperative to know exactly how much of substance was recovered from the offender. Both in the case of E. Micheal Raj (supra) and in the case of Ashif Khan (supra), the Hon'ble Supreme Court was of the view that what is essential is to find out the exact amount of pure drug contained in the substance recovered from the accused person. Once the exact percentage of the pure quantity is discovered, the quantity of material recovered from the accused can be inferred. Once the exact percentage of the pure quantity is discovered, the quantity of material recovered from the accused can be inferred. Hence, the Court would be in a position to know whether small quantity, or more than small quantity but less than commercial quantity, or commercial quantity has been recovered from the accused person or not. Therefore, even if the law does not require the percentage of the pure substance to be mentioned in the FSL Report, in its absence, the court is kept in the dark when it comes to the sentencing of the accused. For until and unless the prosecution proves the quantity of substance recovered from the accused, the court would not be in a position to know whether accused offender should be punished under sub-clause (a), (b) or (c) of Section 21 of the Act. Hence, it is imperative that the percentage of the pure substance should be revealed in the FSL Report. 37. In the case of Nazma (Smt.) vs. State of Rajasthan (2009 (2) R.Cr.D. 463 (Raj.) = 2009(4) RLW 3249, this Court had also dealt with the case where the FSL report did not reveal the exact quantity of pure substance. After noticing the amendment made in the punishment under Section 21 of the Act, this Court observed as under:- 10. Before dealing with the question of quantum of punishment a perusal of the FSL report (Ex.P.17) is necessary to ascertain whether the recovered substance is a opium derivative or not as the recovered substance is alleged to be heroin or smack. The report speaks about a positive test for the presence of diacetylmorphine. The word `positive test' means unqualified or admitting of no doubt. This word `positive test' mentioned in the report with reference to recovered substance would only means that the substance recovered is having morphine but of what percentage is not clear. If suppose the recovered substance is having morphine 0.1% it will not be a opium derivative under the Act because to cover the substance recovered from the appellant under the provisions of the Act it should have more than 0.2% morphine. If suppose the recovered substance is having morphine 0.1% it will not be a opium derivative under the Act because to cover the substance recovered from the appellant under the provisions of the Act it should have more than 0.2% morphine. Unless and until the report quantifies the rate of purity of morphine describing that the substance recovered is having more than 0.2% morphine it cannot come under the definition of `manufactured drug.' If the report simply describes after analysis by mentioning the word `positive' it would mean and would indicate only the presence of morphine in the substance but would not mean that it does contain more than 0.2% morphine as it does not say about the quantity of morphine in the recovered substance. Thus, it can safely and with certaintity be said that this analysis report of FSL not showing the ratio of purity would not fall within the definition of `opium derivative' because it nowhere says or quantify that the recovered contraband is having morphine more than 0.2 per cent. This report in these circumstances cannot be relied upon and also cannot be acted upon because it lacks quantitative test and unless and until this is done, the substance recovered cannot be termed as `opium derivative' as per the definition of the Act. 11. In the present case, the report of FSL about the opium derivative which was found in possession of the appellant is not specifying the rate of purity, it can not be termed as manufactured substance as per the definition of Section 2 (xvi) e of the Act because to come under the provisions of the Act, the derivative must contain morphine more than 0.2 percent which is completely lacking in the FSL report. The report of FSL if says simply that it is positive for morphine and not about the rate of purity, then the recovered substance cannot be termed as opium derivative because it may contain the neutral material along with morphine in it. The quantity of neutral substance is not be taken into consideration in absence of the rate of purity because it is not the total weight of the substance recovered, which is relevant but after segregating the quantity of morphine from rest of the substance is to be considered for purposes of treating it to be opium derivative. The quantity of neutral substance is not be taken into consideration in absence of the rate of purity because it is not the total weight of the substance recovered, which is relevant but after segregating the quantity of morphine from rest of the substance is to be considered for purposes of treating it to be opium derivative. The content of morphine if it is more than 0.2% in the substance, than it would be covered under the definition of opium derivative as per definition provided under Section 2. (xvi). In these circumstances it is concluded that the recovered substance cannot be described as opium derivative and if so then it is found that prosecution has failed to prove the guilt charged against the appellant. 38. In the present case, similarly, the FSL Report (Ex. P/18) is absolutely silent as to the percentage of the Diacetyl morphine found in the sample. Thus, the Court does not know whether a small quantity, or less than commercial quantity but greater than small quantity, or commercial quantity was recovered. In such a scenario, the benefit of doubt should have been given to the appellant. Therefore, the sentence of ten years in unjustified in the eyes of law. 39. For the reasons stated above, this appeal is, hereby, allowed. The judgment dated 20.7.2004 is, hereby, quashed and set aside. Since the appellant is serving his sentence, he shall be set at liberty forthwith, if not wanted in any other criminal case. 40. Since Section 293 Cr.P.C., has been elaborated upon for the first time, the interpretation shall be applicable only prospectively. The Deputy Registrar (Judicial) is directed to send a copy of this judgment to the District Judges who are directed to bring this judgment to the notice of the judicial officers under them.