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TMI Blog2008 (5) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... ola Nath Nagar, Shahdara. At about 3.35 p.m. one person (the appellant) came from the side of the Railway Bridge, Subji Mandi, Shahdara and on seeing the police, the appellant stated to have turned around and started walking briskly. Upon being asked to stop, the appellant started running. His apprehension and search led to the recovery of one black coloured packet from the right side pocket of the kurta worn by him. Inside the said packet was a smaller white coloured packet which contained a brown coloured powder which was suspected to be smack. It is stated that the HC Rajinder Singh then sent an intimation to the Police Station Farash Bazar about the recovery. Sub Inspector (SI) B.D. Sharma reached the spot and HC Rajinder Singh handed over to SI the accused as well as the recovered substance. In the meantime, the SHO Farash Bazar also reached there and the SI produced before him the recovered smack. According to the prosecution, the smack was weighed at the spot and was found to be 300 gm out of which a sample of 50 gms was separated. The Central Forensic Sciences Laboratory (CFSL) Form was filled up and both the pulandas and CFSL Form were sealed by the IO and SHO with their r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 15th March, 2000. (i) There are two road certificates. First one is dated 1st March, 2000 for the despatch to Chandigarh and the second is dated 4th March, 2000 for the despatch to the FSL at Delhi. It is stated that a sample seal from the SHO was not sent with the sample for comparison by the FSL. Although the FSL report was ready on 24 th March, 2000 it was despatched only on 28th March, 2000. The evidence of the prosecution in this aspect is trustworthy and the accused should be given the benefit of doubt. 6. The learned APP appearing for the State submitted as under: (a) The requirement of the compliance of Section 50 was not mandatory as has been explained in several judgments of the Supreme Court. (b) No questions were asked in the cross-examination of the I.O. about the absence of any weighing machine or field kit. (c) The mere mentioning of the FIR number in the documents, cannot be fatal to the case of the prosecution as has been explained by the Supreme Court in Radhey Sham v. State of Haryana JT 2001 (3) SC 535. (d) The mere delay in sending the sample to the FSL, cannot be fatal to the case of the prosecution. He relies on State of Gujarat v. Ismail U Haji Patel (2003 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that the samples could not be sent because of VVIP duty. (emphasis supplied) The above passage shows that there is a time limit of 72 hours stipulated by the Narcotics Control Bureau for a seized sample to be deposited with the Chemical Examiner for testing. This rule is salutary because any attempt at tampering with the sample recovered from the accused can have fatal consequences to the case of the prosecution. Strict compliance has to be insisted upon in such an event. 9. Significantly, on the aspect of the CFSL samples having to be preserved and sent without delay, this Court has also relied upon the High Court Rules in Matloob v. State (Delhi Admn.) 67 (1997) DLT 372. In para 11 it was observed as under: My attention was drawn to Delhi High Court Rules and Orders Part-III Chapter 18-B, which inter-alia, provides that articles for the opinion of the chemical examination should be forwarded without the least possible delay. In considering all this, delay if any, can be explained by the prosecution. Samples to CFSL in this case were despatched about one month after the substance was seized and no explanation for so much time taken in despatching the samples is forthcoming on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ody when I took it on 1.3.2000 or when I took it later on for the second time. XXXXXX by Sh.M.P.Singh Adv. 4. The same items were taken by me to Chandigarh which I later on taken to Malviya nagar. On both the occasions I carried a road certificate. I had tallied the items with the R/C. I received a message from Duty Officer that I have to appear in this court today but I did not know for what purpose I was called. It is wrong to suggest that today I have given statement at the suggestion of APP or that actually I did not know remember anything. I have seen Ex.PW8/B. It is the photocopy of CFSL Form which I had taken along with the sample. Ex.PW8/B was taken by me to FSL, Malviya Nagar. I do not recollect if the CFSL Form taken by me to Chandigarh was the same which was taken by me to Malviya Nagar. It is correct that Chandigarh was written on the said Form at the place where Malviya Nagar is printed at point A on Ex. PW8/B. My signatures were not obtained in register No19. 12. PW 3 B.D. Sharma who was handed over the parcels which was allegedly recovered from the accused states in his cross-examination as under: 12. I had put FIR No. on parcels and recovery memo in the police stati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. This was stated to be an important link. In paras 3 and 4 of the order it was held as under : (Supp SCC @ p. 666) 3. One of the main contentions before both the courts below was that there was inordinate delay in sending the seized article to the Magistrate and that there is no evidence worth mentioning whether the article seized was sealed and if so when. Therefore, according to the learned Counsel for the appellant, it is highly doubtful whether the very article seized was sent to the Chemical Examiner. 4. We have seen the report of the Chemical Examiner and there no doubt it is mentioned that one sealed parcel was received containing a powder and it was analysed to be brown sugar. But from the records it is clear and it is also noted by both the courts below that the seized article was produced in the court only on January 14, 1988 i.e. after a period of more than three months and there is no evidence whatsoever at all to show with whom the seized article was lying and even assuming that it was in the custody of PW 6, the Officer in charge of the police station who seized it, there is again nothing to show whether it was sealed and kept there. The learned counsel for the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State s appeal it was held by the Supreme Court in para 5 as under: (SCC @ p. 292) 5. We find that there was really no material brought on record to show as to where the seized articles were kept. The High Court after analyzing the evidence on record came to hold that the identity of the articles sent for analysis was not established and it was not established that the articles seized were in fact sent for chemical examination. In view of the judgment of this Court in Valsala v. State of Kerala the view of the High Court is in order. It is not the delay in sending the samples which is material. What has to be established is that the seized articles were in proper custody, in proper form and the samples sent to the Chemical Analyst related to the seized articles. (emphasis supplied) 16. In State of Orissa v. Kanduri Sahu, emphasis was again placed on the safe custody of the articles in the malkhana. 17. If the facts of the present case are examined in the light of the above law the evidence led by the prosecution only gives the date on which the samples were deposited with the malkhana and removed therefrom. It does not explain the delay of three months in sending the samples, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e workload of the CFSL, the sample was returned and was unable to be tested. The record must show that such an attempt was made and the sample was returned for reasons not of the making of the prosecution. The lacuna in this regard cannot be permitted to be made up by oral evidence. 21. In the instant case till 1st March, 2000 there was absolutely no attempt made by the prosecution to even send the sample for testing. Even when it was sent on 1st March 2000, it was brought back on 3rd March, 2000. There is no explanation forthcoming on the record as to why it was not sent till then and what happened in the two day gap between 1st March, 2000 and 3rd March, 2000 when the sample was outside the malkhana. The evidence of PW1 Sarbjeet Singh is testimony to the lackadaisical manner in which the entire exercise has been undertaken. This Court is not satisfied that the requirement of safe keeping of the sample as explained by the Supreme Court in Valsala was actually complied with. 22. The reliability of the test report would depend on whether in fact the sample sent for testing was the one recovered from the accused. If there is doubt as to the safe custody of the sample that is recovere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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