R.S. Sodhi, J.
1. This Criminal Appeal No.168/98 is directed against the judgment and order dated 21.3.1998 of the Special Judge in SC No. 13/95 from FIR No. 95/95, Police Station Janak Puri, New Delhi under Sections 21/61/85 of the NDPS Act, 1985 whereby the learned Special Judge held the petitioner guilty of an offence under Section 21 of the NDPS Act for being in possession of 120 grams of smack on 23.2.1995 at about 4.25 a.m. and, therefore, by order dated 27.3.1998 sentenced the appellant to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. one lac and in default of payment of fine to undergo further rigorous imprisonment for six months.
2. The facts of the case, as stated by the prosecution. are that on 23.2.1995, Inspector K.L. Meena with SI K.P. Singh, HC Attar Singh, HC Shiv Kumar, Cons. Satyawan, Cons., Shailesh and Const. Krishan Pal were present in Nangal Rai Village in relation to an investigation in case FIR No.17/95 under Section 364-A IPC P.S. Kirti Nagar because Shashi Bhushan @ Kakku was the friend of Sachin Singh who was the resident of that locality. It is the case of the prosecution that on that day at about 4 a.m. near the house of Sachin a white Maruti Car No. DL-5CA-1957 was spotted, an unknown person from that car got down and went into the house. Within a minute or two thereafter, Sachin and that unknown person came out from the said house and sat in the car. The police party suspected that the occupants of the car were responsible for kidnapping and, therefore, they followed them. In the process, this car was apprehended upon which the accused Prem Pal was taken out and subjected to personal search. From the right side pocket of his pant, one ‘potli’ of white colour in a polythene was recovered, on checking it was found to contain heroin in powder form. This powder was weighed and was found to be 120 grams out of which 15 grams was separated as sample and the remaining was converted into separate sealed parcel. Form CFSL was filled in at the spot upon which Inspector K.L. Meena affixed his seal. Both the parcels were handed over to the SHO O.P. Yadav, who also affixed his seal of OPY on both the parcels and CFSL form and thereafter both the parcels and the forms were deposited with the Moharrar Malkhana. The Mohar- rar Malkhana thereafter despatched the same for Chemical analysis to CFSL Laboratory, Chandigarh. On 11.7.1995, charge was framed under Section 21 of the NDPS Act to which the appellant pleaded not guilty and thereafter the case was put up for trial.
3. The prosecution in order to prove its case, examined eight witnesses. The learned Special Judge, upon appreciation of evidence, came to a finding that the prosecution has proved the case beyond the shadow of doubt and, therefore, convicted the appellant under Section 21 of the NDPS Act. The learned counsel for the appellant has argued before me that the judgment under challenge as also the prosecution’s case suffers from various infirm- ities. Firstly, there is no evidence on record, that the CFSL form, which was supposedly filled in at the spot by Inspector K.L. Meena was deposited in the Malkhana and/or was sent from the Malkhana to the Laboratory along with the samples. He has taken me through the record of the case wherein there is no mention of the CFSL form having been deposited in the Malkhana. The evidence of the Moharrar Malkhana and the inspection of PW-6/A Malkhana Register does not indicate that the CFSL form was deposited along with the sample. Further PW-6/A does not indicate that the CFSL form was sent along with the samples to the laboratory from the Malkhana. From this, the learned counsel wants me to infer that the impression of the seal which is on the parcels and which was required to be compared with those on the CFSL form could not be done therefore, the identity of the sample is doubtful. He draws my attention to the Judgment of this Court in the case of Safiul- lah Vs. State (Delhi Admn.), 1993 (1) CC Cases 497 (HC) wherein this Court had held that:
“…..CFSL form was not filled as is apparent from the testimony of the prosecution witnesses, nor it was deposited with the Moharrar Malkhana. What will be the consequences if the CFSL form is not filled or deposited with the Moharrar Malkhana, particularly when the seal after use is not handed over to an independ- ent witness? According to the High Court Rules and Orders, Chap- ter 18 (Part-B) Clauses 8 and 3 in all cases of transmission of articles to the Chemical Examiner a letter of invoice giving full description of articles sent should be despatched. According to Clause 11 proper custody of articles throughout the various stages of inquiry must be established and traced. But in the present case ASI Om Parkash appearing as P.W.7 does not say anything about the filling of the CFSL form but says that he deposited those sealed parcels in the Malkhana at Police Station Mehrauli. Moharrar Malkhana appearing in Court nowhere stated that he sent the articles to the Chemical Examiner along with the CFSL form. This aspect assumes importance particularly when the seal used was not handed over to an independent witness. The seal after use were kept by the police officials themselves therefore the possibility of tempering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prose- cution to have established from stage to stage the fact that the sample was not tempered with. The prosecution could have proved the CFSL form itself and from the road certificate as to what articles were taken from the Malkhana. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused.”
4. In yet another judgment of this Court in Rajan Ali Vs. State (Delhi Administration), held that the effect of the absence of the link evidence cannot rule out the possibility of the sample having been tampered with. Since the burden of proof to show that the sample was not tampered with lies heavily on the prosecution, absence of the CFSL form would make the discharge of such a burden very difficult. It is also argued that the prosecution must establish beyond shadow of doubt that at no stage of the transfer of the sample from one hand to other, was there any possi- bility of the same having been tampered with. In this case, the Investigat- ing Officer PW-8 after sealing the contraband in the first instance handed it over to the SHO PW-1, who in turn handed it over to Moharrar Malkhana (PW-6), who in turn handed it over to HC Charan Dass (PW-5). The Investi- gating Officer does not state in his deposition that the sample was not tampered with so long as it remained in his custody. Similarly, even PW-1 does not state so. While PW-6 states that the sample was not tampered with so long as it remained with his custody. The absence of evidence that the CFSL form was deposited in the malkhana, and thereafter sent to the CFSL laboratory, the sample, during its handling has lost its identity. This being the situation, it would be difficult to uphold conviction on the basis of opinion based on a sample whose identity is doubtful.
5. It is further argued by the learned counsel that from the evidence on record, it is not possible to show as to which of the memos, namely, per- sonal search memo or recovery memo was prepared first. He submits that if the personal search memo was prepared first then the absence of any recov- ery of any incriminating substance in the same is indicative of the fact that no recovery of smack was made from the appellant. In the absence of clear cut evidence on record, the benefit of doubt ought to be given to the accused. I have gone through the record and find that there is no indica- tion as to which of the memos has been prepared in the first instance and, therefore, I see no reason why the benefit ought not to go to the accused for this lapse on the part of the prosecution. Having, therefore, analysed the material on record, I am of the view that the omission to send the CFSL form along with sample for analysis to the laboratory is disastrous to the prosecution’s case, the identity of the sample has become doubtful. Further due to lack of evidence on record to show that no tampering took place when the sample was being handled from person to person. It cannot be said with any degree of certainty that tampering with the sample is ruled out.
6. In this view of the matter, I am of the opinion that the prosecution has failed to show that the sample of the substance recovered from the accused was heroin.
7. In the facts and circumstances of this case. I set aside the judgment and order of the learned Special Judge in SC No. 13/95 and acquit the appellant.
8. The appellant, who is in jail, shall be released if not wanted in any other case.