HABIB Vs. STATE

JUDGEMENT

(1.) The appeal has been filed on behalf of appellant against the judgment and sentence dated 1.2.1993 passed by the learned Additional Sessions Judge by which the Trial Court convicted and sentenced the appellant to undergo rigorous imprisonment for 10 years with fine of Rs. 1 lac and in default of payment of fine to undergo rigorous imprisonment of 2 years.

(2.) Before I advert to the present appeal, it is important to note that on 27.10.1988, the date of alleged seizure and recovery from the present appellant, on the same date and at the same place, recovery was made from the appellant as well as one Mohd.Shafiq. Mohd.Shafiq has been acquitted by another Additional Sessions Judge vide his order dated 25.9.1993.

(3.) Mr.Sanjiv Kumar, learned counsel for the appellant has argued that the likelihood of the case property being tempered cannot be ruled out in the present case because of the failure of the prosecution to prove and established beyond doubt that the CFSL form was prepared and sent to Moharrar Malkhana. It has also been argued that the case of the prosecution is silent on the fact that whether the CFSL form was sent to the CFSL Laboratory along with the samples as alleged by the prosecution. Learned counsel for the appellant has contended that it was the duty of the prosecution to prove beyond reasonable doubt that the samples which were allegedly taken, were duly sealed and the same samples have been got analysed from the expert of the CFSL. He has urged that no evidence to show that the CFSL form which was alleged to have been filled at the spot and specimen seal was affixed, had been at all deposited with the Moharrar Malkhana. It has also been urged that no entry to this effect has been made in the Register of Moharrar Malkhana that the said CFSL form was deposited with the said Moharrar or that the same was despatched at the time of sending the samples for analysis of CFSL Laboratory. Therefore, the learned counsel has contended that there is no evidence of the prosecution to show that the goods recovered from the appellant was in fact 'Charas'. He has urged that the possibility of the samples being tempered with in the present case cannot be overlooked as the link evidence which will complete the chain that the samples were duly sealed at the spot and the same had reach the Malkhana and also reached untempered for chemical analysis at CFSL Laboratory. In this connection, the learned counsel for the appellant has relied upon a Division Bench judgement of this Court in Amarjit Singh & anr. v. State 1995 JCC 91 in which it was held :- "We are afraid that such an inference cannot be drawn in the present case from the contents of the entries in the Malkhana Register. In the entry proved from the said Register there is no mention that either the CFSL form has been deposited or the same has been sent to CFSL along with samples. So, the case of Francis (supra) is distinguishable on facts. It was for the prosecution to prove that not only the case property was duly sealed with particular seals and was duly deposited in the Malkhana untampered but it was also incumbent upon the prosecution show that the samples which had been duly sealed remained intact till they reached the office of the CFSL. In proving these facts it was necessary for the prosecution to prove that the CFSL form containing the specimen seals which was duly filled at the time of taking of the samples also remained intact and it reached the office of the CFSL along with the samples. Unfortunately for the prosecution there is not an iota of evidence to show that the CFSL form, which was allegedly filled in at the time of taking of the samples, was sent in the same condition to the office of the CFSL. We do not know as to where the said particular CFSL. We do not know as to where the said CFSL form remained during all this period."