G. K. SHARMA, J. - (1.) WITH the consent of both the learned counsel this appeal is decided at this stage.
(2.) JAI Chand has preferred this appeal against the judgment dt. 27-3-89 by which, the Addl. Sessions Judge, No. 2, Ajmer convicted him u/s 8/17 of the N. D. P. S. Act and sentenced him to 10 years' R. I. and a fine of Rs. 1,00,000/-, in default of payment of fine, to further undergo two years' S. I. Himmat Singh A. S. I. Police Station Ganj,. Ajmer was on gust alone with other Constables. He got an information that Jai Chand is selling heroin at a particular place. On this information Himmat Singh reached there and apprehended the appellant and on search ten bottles of heroin containing powder type material were found in his 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 filed in the Court of Sessions Judge, Ajmer. The Addl. Sessions Judge, No. 2 tried the appellant and framed charge against him u/s. 8/17 of N. D. P. S Act. The accused pleaded not guilty and claimed trial. After concluding the trial the learned Addl. Sessions Judge found him guilty of the charge levelled against him and sentenced him as mentioned above. The learned counsel for the appellant argued that A. S. I. Himmat Singh took search and arrested the applicant but according to the N. D. P. S. Act and the Notification issued by the State Government, A. S. I. is not empowered to arrest and take search. Only the S. H. O. 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 A. S. I. Himmat Singh is bad, illegal and without authority. It was argued that the seizure memo is Ex. P 3. 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 10 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 F. S. L. 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 word 'tin' has been wrongly typed. It should be ten. So 10 plastic phials were received by the Laboratory for test. The memo Ex. P. 3 does not indicate that the substance was in plastic phials but it has been clearly mentioned that it was in 10 bottles ft 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 A. S. I. and other witnesses and Memo Ex. P. 3 10 bottles were recovered. So these bottles were sealed and the sealed packet was sent to F. S. L. for examination but. when they were taken out for examination the Director F. S. L. 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 packed 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.
(3.) APART from this fact Ex. P2 A is the copy of the malkhana register. According to this document the sealed packet was kept in the malkhana and on 11-2-86 the sealed packet was taken out from the malkhana and handed over to Nand Singh Constable for preparing a forwarding letter to be sent to F. S. L. for examination. The endorsement on this register is that the packet was taken out on 11-2-86 and again on 11-2-86. 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 11-2-86 was handed over to Nand Singh with seal intact and when Nand Singh returned the packet back on 11-2-86 along with the letter the seal was intact: and the seal was the same seal which was affixed by the A. S. I. Then this packet was sent to F. S. L. which was received by the Incharge of Laboratory on 17 2. 86 as is clear from the receipt Ex. P 1. There is no evidence, or proof on the record that the seal on the packet remained intact from 11-2-86 when it was taken out from the Malkhana upto 17. 2. 86 when it was handed over to F. S. L. 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 seal was intact through out. 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 (PW2) Head Constable Shri Prahalad Singh states that the packet was sealed with the seal of S. H. O. A. S. I. Himmat Singh (PW4) states that the packet was sealed with the seal of Thana it means that the seal was not of S. H. O. 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 A. S. I. should have put the impression or speciment of the seal on a separate 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 F. S. L so that they seal on the may compare that seal with the seal on packet. So in the absence of specimen record as well as sending to the F. S. L. creates doubt on this fact that the packet was ever sealed or not. The report of the F. S. L. says that the sealed packet was received and the seal was intact but which seal was intact is not on the record. It is possible that while sending the same to F. S. L. the S. H. O. might have sealed the packet later on but this possibility cannot be ruled out that the packet could be tempered with before sending it to F. S. L. 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. It was also argued that according to the prosecution 10 bottles were sent to F. S. L. 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. P3 was prepared stated that the sample was taken out from one bottle only. Total bottles were ten and sample was taken from one 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. It was also argued by the learned counsel for the appellant that the independent witnesses of the recovery i. e. motbirs are Laxmi Chand (PW 6) and Mangal (PW 5 ). Both have not supported the prosecution story. ;