JAI CHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(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.

(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.