V.S. Aggarwal, J.@mdashRaj Kumar Sharma, appellant had been held guilty of the offence punishable u/s 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and was sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs. 1 lakh. In default of payment of fine he was to undergo further rigorous imprisonment for one year.
2. The relevant facts of the prosecution case are that ASI Dalip Kumar received secret information on 16.12.1994 that one Raj Kumar is supplying smack and he would be available between 1.30 PM to 2.30 PM at Seelampur Bus stand. He disclosed this information to Inspector S P Kaushik who was posted in the Narcotic Cell. A raiding party was organized in which certain head constables and constables had been joined. The raiding party left the Narcotic Branch at 1.45 PM and were accompanied by the informer. The information as such had been recorded in the daily diary .The vehicle had been parked at some distance. Dalip Kumar, ASI tried to have some persons from public to join the raiding party but all of them declined. At 2.30 PM the appellant/accused came from Seelampur side. At the pointing of the informer he was apprehended in front of bus stop Seelampur. He was having a plaster on his left leg and was carrying a hockey in his right hand. In the left hand he was carrying a polythene bag.
3. ASI Dalip Kumar informed the appellant accused about the secret information and further told him that if he so desires arrangement could be made for search to be effected in presence of a gazetted officer or a magistrate. Simultaneously a notice in this regard u/s 50 of the Act was given. The appellant declined the offer. Thereafter ASID Dalip Kumar offered his search to the appellant. It was declined by the appellant. The polythene bag was searched. It contained light pink polythene and eight packets. The polythene bags were found to be containing heroin. It was weighed and found to be 200 gms. 5 gms was taken as the sample. A separate parcel was prepared with the help of the clothes. The remaining heroin was converted into a sealed parcel which was sealed with the seal of DK.CFSL form was filled up. After use the seal was given to Constable Vinay Kumar. The case property and the other articles were taken into possession vide recovery memo.
4. ASI Dalip Kumar prepared a rukka and sent it to the police station Seelampur through constable Arvind Kumar on basis of which formal FIR was recorded. Constable Arvind Kumar was given the sealed parcels. They were presented before the Additional Officer in charge of the police station who affixed his seal on the bags and deposited the same in the malkhana.
5. Head Constable Daya Nand was Moharrar Malkhana. He took the sealed parcels and made the necessary entry in register no. 19. On 21.12.1994 he has sent the representative sample to CFSL through constable Manoj Kumar. On receipt of report that it was heroin and after completing other necessary formalities report u/s 173 Code of Criminal Procedure was filed.
6. The learned trial court had framed a charge against the accused appellant for the offence punishable u/s 21 of the Act to which the accused pleaded not guilty and claimed a trial.
7. In support of its case the prosecution had examined 10 witnesses which included Inspector S P Kaushik and ASI Dalip Kumar, PW 5and PW 6 respectively. The entire prosecution evidence was put to the appellant in a statement recorded in terms of Section 313 Code of Criminal Procedure. The appellant denied his involvement in the crime. He stated that he was running an unauthorised tea stall on the road side path at Jamuna Bazar bridge. Some police officers were given some amount for running the tea stall. He was unable to fulfill the illegal demand and thereupon he was falsely implicated. Accused did not produce any defense.
8. The learned trial court held that there is no ground to disbelief the witnesses produced. The recovery of heroin from the person of the appellant/accused is proved and rejected the contention that compliance of Section 50 has not been complied with. Hence the present appeal.
9. Learned counsel for the appellant urged that there has been total non compliance of the provisions of Section 50 of the Act and further that there was every possibility of tampering with the case property because CFSL form had not been deposited with the case property nor was sent along with the representative sample and this clearly shows that the property as such could easily be tampered with.
10. There is no over emphasising the fact that CFSL form is a valuable safeguard to ensure that sealed sample is not tampered with till it is analysed by the CFSL analyst. The CFSL form has to be prepared and sealed by the officer making the seizure at the place where the case property is seized from the accused. The purpose of the seal on the sample parcel meant for analysis is to ensure that the same are not tampered with.
11. This question had been considered by this court in a number of decisions. Reference can well be made to the decision of Lal Man vs. State1999 (1) JCC 74. In yet another decision rendered in the case of Adeseqren Jackson vs. State 1997 (1) SVLR 296 the same view had been reiterated.
12. In the present case ASI Dalip Kumar as well as Inspector S P Kaushik in their testimonies wanted the court to believe by stating that CFSL form had been filled up at the spot and deposited in the malkhana. It had been duly sealed. Daya Nand, PW8 also stated in the same manner because he was the Malkhana Moharrar and added that CFSL form had been deposited on 16.12.1994. He had sent the representative sample duly sealed and CFSL form through constable Manoj Kumar.
13. However, what is being stated in the court cannot be believed because exhibit PW4/A is the photocopy of entries made in register no. 19 pertaining to the deposit of the representatives sample. There is no mention in the said entry of the CFSL form being deposited or subsequently being sent to CFSL. The inference Therefore are obvious that what is being stated in court is clear improvement which cannot be believed and it must follow that the necessary pre-requisite that CFSL form had been filled up and duly sealed had not been done. To that effect Therefore chances of tampering of the property in this regard cannot be ruled out.
14. As regards compliance of Section 50 of the Act is concerned it is not being disputed that provision of Section 50 of the Act are not mandatory. To the same effect is the decision of the Supreme Court in the case of
15. Both ASI Dalip Kumar, PW 6 as well as Inspector S P Kaushik stated that when the appellant accused was stopped he was informed that if he wishes his person can be searched before a magistrate or a gazetted officer. A notice in this regard was also served but he had declined the offer duly signed by the accused/appellant. In a criminal trial a fact cannot be taken to be established even if it is disproved by other factors on the record.
16. In this regard the attention of the court has been drawn to the provision of Section 57 of the Act which reads as under:-
57. Report of arrest and seizure.- Whenever any person makes any arrest or seizure under this Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest of seizure to his immediate official superior.
17. It is true that in the case of Balbir Singh the Supreme Court held that provisions of Section 57 are not mandatory but due Explanation in this regard must be forthcoming. ASI Dalip Kumar, PW6 in his testimony in court deposed that information u/s 57 was sent to the higher officers, copy of which was numbered as PW 6/E.
18. There port u/s 57 of the Act need not contain the minute details but in the present case as one peruse PW 6/E it is clear that it contained all the facts pertaining to the recovery and co-related other factors pertaining to the investigation that was conducted at the spot. However, there is no mention about compliance of Section 50 of the Act. Only it has vaguely been stated that formalities under the provisions of the Act were complied with. In normal circumstances it can be taken as an omission but when the purported notice PW 1/E u/s 50 of the Act is read along with it the only impression that can be arrived at is provisions of the Act particularly Section 50 had not been complied with. The notice is not signed but the signatures of the Assistant Sub Inspector concerned appeared below the alleged refusal of the appellant/accused of being taken before a magistrate or a gazetted officer. This only gives an indication that perhaps the notice had not been prepared or given at the spot. This gets corroboration from the above facts that specifically there is no mention about this notice in the report u/s 57 of the Act. In the peculiar facts Therefore it can conveniently be stated that in the facts of the present case provisions of Section 50 of the Act had not been complied with.
19. Cumulative effect of the aforesaid would be that the appellant must be held to the benefit of doubt. Consequently the appeal is accepted. The impugned judgment and order of sentence are set aside.
