PRADEEP NANDRAJOG,J. - (1.) The petition must succeed, if for no other reasons, one reason. Unfortunately this critical aspect has been over-looked by the courts below.
(2.) As per the prosecution, when petitioner was intercepted on 19.08.1981 he was found to be in possession of 7.5kgs. opium and Santokh Singh the officer after seizing the samples made packets of 30 grams each. The un-exhibited FSL report shows that the samples were received at the laboratory in Jaipur on 25.09.1981. There is a delay of over one month in sending the samples to the laboratory. The FSL report records the weight of the samples received to be 24 grams and 33 grams respectively. Now, if due to passage of time moisture escaped and would explain 30 grams to be reduced to 24 grams it does not explain 30 grams to become 33 grams. The delay in sending the samples and difference in the weight of the two packets which were prepared, and as noted above, needs to be further considered in light of the fact that there is just no evidence that the samples were entrusted in the malkhana the same day. That the same samples which were entrusted in the malkhana on the day of the seizure were forwarded to the forensic laboratory.
(3.) Under the circumstances the petitioner would be entitled to the benefit of doubt. Unfortunately in the instant case, Santokh Singh could not be examined since he had died and the prosecution did not lead any evidence with reference to the malkhana to show that Santokh Singh had deposited the samples the same day.;