Dalveer Bhandari, J.(Oral)
1. This appeal is directed against the judgment of the learned Additional Sessions Judge dated 25.3.1994 delivered in Sessions Case No.158/93. Brief facts which are necessary to dispose of this appeal are recapitulated as under:
2. On 8th March, 1990 Inspector Niranjan Singh, SHO police station Kotwali at police post Red Fort received secret information that one person is scheduled to reach Bhure Shah Mazzar for selling opium. This secret information was recorded vide DD Entry No.14 by the SHO Niranjan Singh in the Daily Diary of police post Red Fort. A raiding party was formed comprising of SI Birjinder Singh, Head Constable Shabuddin, Constable Desh Pal and one public witness Paramjit Singh.
3. The accused Ram Dayal who on seeing the police party tried to run away but was apprehended and immediately thereafter the SHO Niranjan Singh told the contents of the secret information to the accused Ram Dayal. SI Sahdev Singh served a notice under Section 50 of the NDPS Act in writing to the accused in which an option was given to the accused that if he wants he could be searched before a gazetted officer or a Magistrate. The accused declined both the options. Thereafter his bag was checked. From the `Tehmad’ opium wrapped in polythene paper was recovered. The recovered opium weighed about 8 Kgs. Out of the recovered opium, 250 gms. was taken as sample. The sample opium and the remaining opium were covered with polythene cover and Tehmad was put into different parcel which was sealed with the seal of `SS’ by SI Sehdev Singh. ACP Ashok Chand was summoned at the spot. He verified the facts from the accused Ram Dayal. The two sealed parcels were taken into possession vide recovery memo. Seal `SS’ was thereafter handed over to the public witness Paramjit Singh. The CFSL form was filled in and the case property was delivered to the SHO who put his own seal NS thereon and placed the case property in his safe custody.
4. According to the further case of the prosecution, the case property was deposited in the malkhana by the SHO Niranjan Singh. It is stated that on 15.3.1990 Constable Satpal took the sample parcel along with the CFSL form from the malkhana for depositing it in the CFSL Chandigarh. According to the report of the CFSL the sample examined was found to be opium. After necessary investigation accused Ram Dayal was challaned. The charge was framed against the appellant to which he pleaded not guilty and claimed the trial. The prosecution in support of its case has examined 7 witnesses.
5. The short submission of the learned counsel for the appellant, Mr.Sanjeev Kumar, is that the CFSL form was neither deposited in the malkhana nor the same was sent from malkhana to the CFSL, Chandigarh. Learned counsel for the petitioner has placed reliance on the statement of PW-2 Head Constable Vikram Singh. The relevant portion reads as under:
” On 8.3.1990 I was posted as MHC(M) at P.S.Kotwali. On that day SHO Niranjan Singh deposited with me one sealed pullanda sealed with seals of SS and NS and another sealed parcel was also deposited with me which was sealed with the same seals. On 15.3.1990 the sample parcel which was sealed with the seal of SS and NS was given by me to Constable Satpal for depositing the same with CFSL vide road certificate no.247/21.
The sample parcel was received back from CFSL on 7th of July, 1990 regarding which I also made necessary entries in the malkhana register No.19.”
6. In the statement PW-2 Vikram Singh does not mention that the SHO Niranjan Singh or any one else had deposited the CFSL form with him. Mr.Sanjeev Kumar further stated that in the register no.19 relevant entry (Exhibit PW-2/A) also mentions that one pullanda of 7.750 Kgs. of opium was deposited. It does not mention that the CFSL form was also deposited along with it. Mr.Sanjeev Kumar also submits that there is no entry that the CFSL form was dispatched to CFSL Chandigarh along with the pullanda. According to the submissions of Mr.Sanjeev Kumar this is a serious lacunae in the prosecution version and the entire prosecution version has to be discarded because of this lapse.
7. The learned counsel for the appellant, Mr. Sanjeev Kumar also placed reliance on another judgment of this Court, i.e., Mool Chand Vs State; 1993(2) Delhi Lawyer 14. In this case also though the CFSL form was filled in but was neither deposited in the Malkhana nor was sent to the CFSL Along with the samples. The counsel appearing for the State argued that non-depositing of the CFSL form in Malkhana was an irregularity and not illegality, so it did not have any serious impact on the credibility of the prosecution version. The court examined the statements in the light of various decisions of the Supreme Court and came to the conclusion that the basis behind taking such a precaution is to complete material link in the prosecution evidence by eliminating the possibility of the sample being tampered with. The Court observed that the sentence provided under the Act is very severe. The Court cannot award any punishment less that 10 years’ R.I., and has to impose a minimum fine of Rs.1,00,000/- and in default of payment of fine to further undergo one year R.I. The Court observed that in cases where the sentence is so severe and stringent, the Court would naturally insist for the standard of proof beyond the shadow of all reasonable doubts against an accused. Suspicion, however, strong, cannot take the place of a positive proof. The Court observed that non deposit of the CFSL form in Malkhana or its being sent to the CFSL was a mere irregularity, cannot be accepted. The court directed that the appellant is entitled to a benefit of doubt and consequently the appellant was acquitted in this case also.
8. The learned counsel for the appellant also placed reliance on another judgment of this Court, i.e., Safiullah Vs State; 1993 JCC 33. In this case the road certificate was neither produced nor exhibited and it was not confirmed that the CFSL form was ever taken out from the Malkhana and sent Along with the sample parcels to the CFSL office. The Court observed that the prosecution failed to prove the link evidence and the possibility that the sample parcels were not tampered with, cannot be ruled out. The conviction was set aside and the accused was given the benefit of doubt.
9. The learned counsel has also placed reliance on another judgment of this Court, i.e., Satinder Singh Vs The State (NCT of Delhi); 1998 JCC 8 [Delhi]. In this case also the CFSL form was prepared but there was no deposit of the same with the Moharar Malkhana. The Court gave the appellant benefit of doubt. Though there was a clear oral evidence which supported the case of the prosecution but the court observed that “I am not inclined to place any reliance on the oral testimony of the police witness without cogent explanation the absence of entries in the documentary evidence of this nature”.
10. The learned counsel for the appellant also placed reliance on the latest judgment of this Court in Rajan Ali Vs The State; 2000(1) C.L.R. 362. In this case also the CFSL form was not deposited in the Malkhana Along with the seized property nor the same was sent to the CFSL office along with the sample parcel. The Court observed that since the prosecution has failed to produce the link evidence which was imperative to demonstrate that the samples were not tampered with. Because of this lapse of the prosecution, the conviction of the appellant was set aside and the appellant was acquitted.
11. On careful scrutiny of the aforesaid judgments, the conclusion becomes irresistible. Depositing of the CFSL form acquires significance in a case of the NDPS Act. The prosecution has to prove that the form was duly deposited with the Malkhana and the same was sent from the Malkhana to the CFSL office. In this case, the prosecution has failed to provide any documentary evidence in this respect. In cases, where the legislature has provided for such stringent punishment. The Courts would be justified in insisting for standard of proof beyond the shadow of doubt against the accused. In the instant case non-deposit of the CFSL form, in the Malkhana and consequently not sending the same from the Malkhana to the CFSL office is a vital lapse in the prosecution version and the accused is certainly entitled to the benefit of doubt.
12. This appeal is allowed and the appellant is set at liberty, if not required in any other case.