ORDER
K.S. Gupta, J.
1. This appeal by Rajan Ali is directed against the judgment dated 3rd April 1993 convicting him under Section 18 of Narcotic Drugs and Psychotropic Substances Act (for short ‘the Act’) and also the order dated 8th April 1993 sentencing him to undergo RI for 10 years and pay fine of Rs. one lac, passed by an Additional Session Judge. In default of payment of fine appellant was further to undergo RI for two years.
2. Case of the prosecution as borne out from the chargesheet filed under Section 173 Cr.P.C. is that SHO Dharam Pal Singh, PW-5 had information that some persons from UP supply opium in the jhuggies at Majnu-ka-tila and from there it was sold in retail to the drivers who park the trucks and buses in the nearby parking. ASI Bakhtawar Singh,PW-6 and Constable Hari Singh were
deputed by PW-5 to develop and verify the said information. On 28th January 1989 on receipt of information from an informer by PW-5 that a person having opium would come to the jhuggies, a raiding party consisting of constables Hari Singh, Dharamvir Singh PW-3, Matwar Singh and ASI Bakhtawar Singh, PW-6 under the supervision of PW-5 was organized at about 1.45 PM and all of them alongwith the informer left in Government vehicle No.DID-4672. On the way Sawran Singh, Haridev Joshi, Karan Singh and Narain Dass were asked to join the raiding party but they expressed their inability. In the meantime Charan Singh PW-4 met PW-5 and he on being informed about the secret information agreed to join the raiding party. Around 2.30 PM members of the raiding party took positions near the jhuggies opposite to Punjabi Basti. It is further alleged that at about 3.15 PM the informer told that the concerned person has come to the jhuggi with the opium. Thereupon the
members of the raiding party rushed towards that jhuggi. Around 3.25 PM accused-appellant came out of the jhuggi holding a bag of white colour in his right hand and on seeing the police party he tried to run away in a gali behind the jhuggi. He was, however, overpowered at a distance of 10 to 12 paces. Appellant was given notice in writing under section 50 of the Act Ex.PW3/A, and the contents thereof were also read over to him. He was told that if he so desired his search could be taken either before a Gazetted officer or Magistrate. Appellant, however, declined to be searched in the presence of either of them and in token of that denial his thumb impression was obtained on Ex.PW3/A, he being illiterate. On search of the appellant by ASI Bakhatawar Singh,PW-6 substance of black colour wrapped in a momi envelope was found kept in the bag and on smelling it was suspected to be
opium. On weighing, opium was found to be 5 Kg 200 grams out of which 50 grams was separated as sample. Sample and the remaining opium were converted into two parcels and sealed with the seal of BS of PW-6 . PW-5 also affixed his seal of DPS on both the parcels and those were taken into possession vide memo Ex.PW3/B and handed over to PW-5. CFSL form was filled up. Rukka Ex.PW1/B was sent to the police station and on the basis thereof FIR (carbon copy EX.PW1/A) was registered under section 18 of the Act against the appellant . Sample parcel was sent to CFSL for Chemical analysis and as per the CFSL report representative sample gave positive test for morphine with approximate 9.7%.
3. In the statement under section 311 Cr.P.C. plea taken by the appellant is of plain denial.
4. To bring home the charge against the appellant the prosecution examined 6 witnesses in all.
5. Having heard learned counsel for both the parties I am of the opinion that this appeal deserves to be allowed on a short point that the prosecution has failed to produce the link evidence that the CFSL form which allegedly bore the seals of BS and DPS which seal impressions were also affixed on the sample parcel,was not deposited alongwith the case property in the malkhana nor was it sent together with the sample parcel to the office of CFSL to enable the later to compare the said seal impressions with the impressions appearing on the sample parcel before doing the analysis. On that point only the statements of ASI Bakhatawar Singh, PW-6 Inspector Dharam Pal Singh, PW-5, HC Rajbir Singh, PW-2 and Constable Dharamvir Singh PW-3 are relevant.
6. PW-6 has, inter-alia, deposed that the sample and the rest of the opium recovered were sealed in two packets with the seal of BS and seized vide memo Ex.PW-3/B. SHO also affixed his seal of DPS thereon. CFSL farm was filled up and seal impressions put on it. SHO deposited the case property and later on sample was sent to CFSL and report Ex.PX was received. PW-5 has deposed that the sample and rest of the opium were kept in two parcels and sealed with the seals of BS and DPS and seized vide memo Ex.PW3/B .CFSL form was filled and impressions of seals affixed on it . He deposited the case property in malkhana. PW-2 has deposed that on 28th January 1989 he was working as Malkhana moharer, PS Civil lines and on that date PW-5 deposited two sealed parcels bearing the seals of BS and DPS together with one bag of white colour. He made entry in the register at serial No.1189 and the extract of that entry is Ex.PW2/A . He has further
deposed that on 3rd February 1989 he sent the representative sample parcel duly sealed to the office of CFSL through Constable Dharamvir Singh who after delivering the parcel in the office of CFSL handed over a receipt to him. PW-3 has, interalia, deposed that on 3rd February 1989 he had taken the sample parcel bearing the seals of BS and DPS and deposited it with CFSL but he did not remember the Road certificate number. English translation of the entry made in the last column against serial No.1189 in Ex.PW2/A which is relevant reads thus:-
“Today on 3.2.89 one parcel containing opium bearing the seals of DPS and BS has been sent to CFSL, Lodhi Estate through constable Dharamvir Singh No.1429 vide R.C.No.77/21.”
7. As is manifest from the depositions referred to above of inspector Dharam Pal Singh, PW-5, ASI Bakhatawar Singh, PW-6, HC Rajbir Singh, PW-2 and Constable Dharamvir Singh, PW-3 coupled with the said entry in Ex.PW2/A neither the CFSL form was deposited in the malkhana nor sent alongwith the sample parcel to the office of CFSL. It is true that a line in the cyclostyled report of the CFSL report Ex.PX does say that one sealed parcel was received with the seals of BS and DPS as per specimen enclosed but in view of the aforesaid evidence much significance cannot be attached to it as the
same appears to have been made in a mechanical and routine manner. In the absence of the link evidence to the above effect the possibility of the sample being tempered with cannot be ruled out altogether. I am supported in this view by the decisions of this court in Safiullah Vs. State (Delhi Admn), 1993 JCC 33, Mool Chand Vs. State, 1993 JCC 234; Amarjit Singh and another Vs. State (Delhi Admn), 1995 JCC 91; Abdul Ghaffer Vs. The State (Delhi Admn),1996 JCC 497 and Berthe Djakaridja Vs. The state, 1998(1) JCC (Delhi) 62. The view taken by the trial court that it was for the appellant to have brought material on record to show that there was tempering with the seals of the sample parcel being erroneous deserves to be discarded. Thus the orders conviction and sentence passed by the Additional Session Judge require to be set aside.
8. Consequently the appeal is accepted,judgment and order under appeal are set aside and the appellant is acquitted of the charge under section 18
of the Act.