JUDGMENT
V.B. Bansal, J.
(1) This is an appeal by Ghanshyam against his conviction under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (No.61 of 1985) (hereinafter referred to as the ‘Act’) and the sentence of rigorous imprisonment for 10 years with a fine of Rs.l,00,000.00 or in default to undergo further rigorous imprisonment for one year vide judgment dated 3.4.1993 and order dated 7.4.1993 of Shri Kuldip Singh, Additional Sessions Judge, Delhi.
(2) Briefly stated the facts leading to the filing of the challan against Ghanshyam and Raj Kishore by Station House Officer, Police Station Civil Lines, Delhi in case Fir No.69 dated 23.3.1989 are as under:-
(3) Inspector Dharam Pal Singh, Sho Police Station, Civil Lines, had a prior information that persons residing in Jhuggis opposite Akahara Chandgi Ram have been making supply of smack in retail after bringing the same from outside. On 23.3.1989 at about 4.55 pm. Sho received secret information with regard to the availability of smack in the Jhuggi of Ghanshyam where small puriyas were being prepared of the said smack. Accordingly, a raiding party was organized by the Sho in which S.I. Mahender Singh, Asi Bhaktawar Singh and a number of Police Constables were joined. On the way a request was made to some passer byes and one Chaman Singh, public man,was joint as a witness. The members of the raiding party reached the Jhuggi of Ghanshyam and at the pointing out of the informer Ghanshyam and Ram Kishore were apprehended. At that time Ghanshyam was putting Heroin on papers and the same was being converted into small puriyas by Raj Kishore. Both Ghanshyam and Raj Kishore were informed that if they desired they could be searched in the presence of a gazzetted officer or a Magistrate, but they declined this offer. They were found in possession of Heroin which on weighing was found to be 520 grams. 5 grams of said Heroin was separated as a sample and, theafter, both the sample and the remaining Heroin were sealed separately with the seal of B.S. of Asi Bhaktawar Singh and with the seal of D.P. of the SHO. Central Forensic Science Laboratory (hereinafter referred to as the ‘CFSL’) form was also filled up and these were taken into possession after preparing a memo. Rucca was sent to the Police Station on the basis of which the case was registered. Statements of witnesses were recorded and the case property was deposited with the Malkhana. Both Ghanshyam and Raj Kishore were arrested.
(4) Sample was sent to Cfsl wherefrom report was received. The accused by keeping in their possession Heroin were alleged to have committed offence under Section 21 of the Act and, so, they were challenged.
(5) In support of its case the prosecution examined six witnesses, viz. Asi Dharam Pal Singh, Public Witness /1; Constable Baldev Raj, Public Witness /2; Charan Singh, Public Witness /3; Head Constable Rajbir Singh, Public Witness /4; Inspector Dharam Pal, Public Witness /5; and Asi Bakhtawar Singh, Public Witness /6. Ghanshyam when examined under Section 313 of the Code of Criminal Procedure denied all the allegations and claimed that nothing was recovered from him and that he has been falsely implicated in the case. He has also pleaded that only interested witnesses have made false statements against him and that Along with co-accused Raj Kishore he was taken to the Police Station from their house by Asi Baktawar Singh and, thereafter, falsely implicated.
(6) The accused examined four witnesses, viz. Sheela Devi, DW/l;VijayKumar, DW/2;RoshanLal,DW/3; and Sukhpal Singh,DW/4; in their defense. The learned trial court after hearing ‘arguments convicted the appellant as also Raj Kishore, as referred to above.
(7) I have heard Shri K.B. Andley, learned counsel for the appellant and Shri H.J. Singh, learned counsel for the State. I have also gone through the record.
(8) Learned counsel for the appellant has submitted that even if the prosecution story with regard to the recovery of some article is to be believed the prosecution has failed to prove on record that the sample was not tampered with before the same was examined in the Cfsl and, in these circumstances, it cannot be said that the recovery alleged to have been effected by the police from the appellant was that of Heroin. He has, thus, submitted that on this account alone the appellant is entitled to acquittal.
(9) In order to prove the factum of the parcels having been deposited with the Malkhana and sample parcel being sent to the Cfsl, reliance has been placed by the prosecution on the statements of Inspector Dharam Pal, Public Witness /5; Asi Baktawar Singh, Public Witness / 6,Head ConstableRajbirSingh,PW/4 and Constable Baldev Raj, Public Witness /2. It has been stated by Inspector Dharam Pal, Public Witness /5, that after preparing two parcels sealed with the seal of B.S.and D.P.S., the case property was deposited by him in the Malkhana. According to A.S.I. Baktawar Singh,PW/6,SHO took the case property with him and the sample was got sent to Cfsl wherefrom report ‘PX’ was obtained. Head Constable Rajbir Singh, Public Witness /4 has claimed that on 23.3.1989 he was working as Malkhana Moharrir and the Sho Dharam Pal had deposited 3 parcels sealed with seal of B.S. and D.P.S. which he had entered at Serial No.1 272 in the Malkhana Register and that on 27.3.89 the sample was sent to Cfsl through Baldev Singh videRCNo.84/21. He has proved Exhibit Public Witness /4/A, which is the copy of the relevant entries from the Malkhana Register.
(10) Constable Baldev Singh, Public Witness /2, has claimed that on 27.3.1989 while posted at Police Station Civil Lines, he collected one parcel sealed with the seal of D.P.S and B.S. in case Fir No-69/89 and deposited the same at Cfsl office vide RCNo.84/21and that no one tampered with the scaled parcel during the period it remained in his custody. Exhibit ‘PX’ is the report from the Cfsl to the effect that the contents gave positive tests for Heroin and that the parcel was received with seals B.S. and D.P.S., as per official specimen enclosed.
(11) A perusal of the aforesaid evidence makes it abundantly clear that Inspector Dharam Pal Singh has nowhere stated that the case property, including the sample, was not tampered with by anyone during the period it remained in his custody. There is no doubt that in his statement he has claimed that Cfsl form was filled up and face mile of the seals were also affixed on it, but he, as also Asi Baktawar Singh, are silent and they have nowhere stated that Cfsl form was deposited with Malkhana Moharrir Head Constable Rajbir Singh, Public Witness /4. It is also pertinent to note that even Head Constable Rajbir Singh, Public Witness / 4, has not claimed to have received the Cfsl form from Sho or Asi Baktawar Singh and he could not possibly state that any such form was sent by him to Cfsl through Constable Baldev Raj. All that has been stated by Constable Baldev Raj, Public Witness /2, has been that he deposited the sample parcel at Cfsl without being tampered with by anyone when it was in his custody. Both Public Witness /2 Constable Baldev Raj and Public Witness /4 Head Constable Raj Singh have claimed that the sample parcel was sent to Cfsl vide Rc No.84/21. However, even this certificate has not been produced in Court. There is no doubt that in the report Exhibit ‘PX’ received from the Cfsl, there is a mention that seals B.S. and D.P.S. were found intact as per the official specimen enclosed. However, it is not certain as to when and by whom the Cfsl form was delivered at the Cfsl and in whose custody it remained prior to being delivered at the CFSL.
(12) As already referred to, neither Inspector Dharam Pal Singh, Public Witness /5 nor Head Constable Rajbir Singh, Public Witness /4, have stated that no one tampered with the sealed parcels during the period they remained in their custody. It cannot be said that there was no tampering of the sealed parcel before it was delivered at the CFSL. There is no reason forthcoming as to why RC.84/21 was not produced, which could also indicate as to when and by whom the Cfsl form was sent to the CFSL. This material, in my view, is sufficient to cast doubt on the prosecution story that the recovery effected from the appellant was that of Heroin. I find support for this view from the case Laccho Devi Vs. State (1990 (2) Chandigarh Criminal Cases 395 (High Court); Chandrawali Vs. State (1991 Jcc 508); Ravinder Kapoor @ Ravi Vs. State (1991 Jcc 309); Anoop Joshi Vs. State (1992 Jcc 329); Safiullah Vs. State (Delhi Adnm.) (1993 Jcc 33); and Mool Chand Vs. State .
(13) It is, thus, clear that the conviction and sentence of the appellant cannot be sustained on account of the missing of the link evidence to indicate that the recovery effected from the appellant was not tampered with by the appellant. It is really unfortunate that the accused is getting benefit on account of the absence of the link evidence,but none else than the prosecution is to be blamed for this lapse.
(14) In view of my aforesaid discussion, the appeal is accepted. Giving him the benefit of doubt, the appellant is acquitted. The appellant is ordered to be released forthwith, if not required in any other case.