JUDGMENT
G.K. Sharma, J.
1. With the consent of both the learned this appeal is decided at this stage.
2. Jai Chand has preferred this appeal against the judgment on 27-3-1989, by which, the Addl. Sessions Judge, No. 2, Ajmer convicted him Under Section 8/17 of the NDPS Act and sentenced him to 10 years’ RI and a fine of Rs. 1 00,000/-, in default of payment of fine, to further under go two years simple imprisonment
3. Himmat Singh ASI Police Station Ganj, Ajmer was on gust along with other Constables. He got an information that Jai Chand is selling her in at a particular place On this information Himmat Singh reached there and apprehended the appellant and on search ten bottles of her in containing powder type material were found in this possession along with a sum of Rs. 219/-. The material along with the bottles was seized at the spot, sealed them, arrested the appellant and brought him to the Police Station. After completing the trial challan against the appellant was filled in the Court of Sessions Judge, Ajmer. The Addl. Sessions Judge, No. 2 tried the appellant and framed charge against him Under Section 8/17 of the NDPS Act. The accused pleaded not guilty and claimed trial.
4. After concluding the trial the learned Addl. Sessions Judge found him guilty of the charge levelled against him and sentenced him as mentioned above.
5. The learned Counsel for the appellant argued that ASI Himmat Singh took search and arrested the appellant but according to the NDPS Act and the Notification issued by the State Government, ASI is not empowered to arrest and take search. Only the SHO is empowered in this respect. Therefore, the seizure of the heroin and the arrest of the accused was without authority. So the entire proceedings taken by ASI Himmat Singh is bad, illegal and without authority.
6. It was argued that the seizure memo is Ex. P3. According to the seizure memo 10 Sheeshis (bottles) were seized and all the 10 bottles were sealed at the spot. No sample was taken from the bottles. According to this seizure memo Ex. P3 each bottle contains one gram of heroin so it) bottles means 10 gram brown substance was present in those 10 bottles There is no mention in this seizure memo that the sealed bottles were weighted at the spot and all the 10 bottles contain this much weight. This substance inside the bottles was not taken out at the spot and weighed properly This weight has been mentioned approximately because there is no indication that these bottles were weighed at the spot. Then the report of the FSL Ex.P 9 was brought to my notice and in this report it has been mentioned that a sealed packet was received in the Laboratory. It is also mentioned that the powder substance packed in tin plastic phials weighing 21 gram with container. I feel that the words ‘tin’ has been wrongly typed. It should be ten,. So 10 plastic phials were received by the Laboratory for test. The memo Ex. P3 does not indicate that the substance was in plastic phials but it has been clearly mentioned that it was in 10 bottles. It means that the bottles were of glass. So 10 bottles were seized and they were sealed at the spot, how 10 plastic phials were sent to Laboratory for examination. According to ASI and other witnesses and memo Ex.P 3 10 bottles were recovered, so these bottles were sealed and the sealed packet was sent to FSL for examination but when they were taken out for examination the Director FSL found that the substance was in 10 plastic phials. He has not mentioned in the report that they were in 10 bottles. So this creates doubt about the fact that the sealed packet remained intact throughout in the Malkhana. When 10 bottles were seized and sealed and at the time of examination 10 plastic phials were found it shows that the sealed packet was tempered somewhere and it creates doubt about the genuineness of the sealed packet.
7. Apart from this fact Ex.P 2 A is the copy of the Malkhana register. According to this document the sealed packet was kept in the Malkhana and on 11 2-1986 the sealed packet was taken out from the Malkhana and banded over to Nand Singh Constable for preparing a forwarding letter to be sent to FSL for examination. The endorsement on thin register is that the packet was taken out on 11-2-1986 and again on 11-2-1986. The packet along with the letter was returned to the Malkhana Incharge. Whether the seal on the packet remained intact when it was taken out from the Malkhana and handed over to Nand Singh Constable and upto the time when it was returned by Nand Singh Constable and kept again in the Malkhana, there is no evidence to this effect. The Malkhana Incharge has not stated that the packet on 11-2-1986 was handed over to Nand Singh with seal intact, and when Nand Singh returned the packet back on 11-2-1986 along with the letter the seal was intact and the seal was the same seal which was affixed by the ASI. Then this packet was sent to FSL which was received by the Incharge of Laboratory on 17-2-1986 as is cleat” from the receipt Ex.P 1. There is no evidence or proof on the record that the seal on the packet remained intact from 11-2-1986 when it was taken out from the Malkhana upto 17-2-1986 when it was handed over to FSL for examination. This also creates doubt about the fact that the sealed packet remained in the same condition as it was kept in the Malkhana and the seat was intact throughout. Another aspect is about the specimen of the seal. There is nothing on the record to show that how the seal was affixed on the packet when it was seized. The packet was seized at the spot. One witness (PW 2) Head Constable Shri Prahlad Singh states that the packet was sealed with the seal of SHO ASI, Himmat Singh (PW 4) states that the packet was sealed with the seal of Thana it means that the seal was not of SHO but of Police Station. So there is difference about this fact. Apart from this there is no specimen of the seal on the record. The ASI should have put the impression or specimen of the seal on a separata packet which was affixed on the packet and that specimen seal should have been kept in the file submitted in the Court at the time of filing challan and specimen seal should have been sent to the FSL so that they may compare that seal with the seal on packet. So in the absence of specimen seal on the record as well as sending to the FSL creates doubt on this fact that the packet was ever sealed or not. The report of the FSL says that the sealed packet was received and the sealed was intact bat which seal was intact is not on the record. It is possible that while sending the same to FSL the SHO might hare sealed the packet later on but this possibility cannot be ruled out that the packet could be tempered with before sending it to FSL. It was also argued by the learned Counsel for the appellant that no site-plan was prepared at the time of arrest and seizing the substance. This is also a lacuna in the prosecution case.
8. It was also argued that according to the prosecution 10 bottles were sent to FSL for examination but (PW 2) Prahalad Singh who is Head Constable and who was present at the time of seizure, at the time when the substance was sealed and the memo Ex. P 3 was prepared stated stated that the sample was taken out from one bottle only. Total bottles were ten and sample was taken from on bottle only. ‘ He could not say as to from which bottle the sample was taken but he has very specifically stated that the sample was taken from one bottle only. This witness contradicts the other witnesses who have stated that all the 10 bottles were sealed at the spot and sent to laboratory for examination. This also creates doubt in the correctness of the prosecution story.
9. It was also argued by the learned Counsel for the appellant that she independent witnesses of the recovery i.e. motbirs are Laxmi Chand PW 6 and Mangla PW 5. Both have not supported the prosecution story.
10. It was also argued that the provisions of Section 42 and 56 of the Narcotic Act are mandatory provisions and the Investigating Officer at the time of arrest have not followed these provisions. In support of his argument he has relied on the cases of Gopal v. State 1988 RCC 417, Biram v. State of Rajasthan 1988 RCC 556 and State of Himachal Pradesh v. Sudershan Kumar and Ors. 1989 Cr. Law Journal 1412.
11. In view of the principles laid down it is clear that the provisions of Section 42 and 56 are mandatory provisions and the Inspector arresting the accused and seizing the opium or heroin is bound to follow these provisions in case of failure of complaince of these it is very fatal to the prosecution case. In the present case the Investigating Officer has not complied and followed the provisions of the Narcotic Act so the entire prosecution case falls on the ground.
12. In view of my above discussion the judgment of the trial Court is illegal and incorrect and it cannot be maintained.
13. As a result, the appeal is accepted. The appellant is not found guilty of the offence under Section 8/17 of the NDPS Act and he is acquitted. His conviction and sentence are set aside. The appellant is on bail. His bail herds are cancelled and he need not surrender.