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(8) Sealed parcel is stated to have been deposited with the Moharrar Malkhana by the Investigating Officer Public Witness .,9, but nothing has been recorded about the deposit of the CFSL form nor there is any mention of the same in Ex. Public Witness .-9-A. Even the recovery memo Ex. Public Witness .4-A does not mention about the filling of the CFSL form. Even Public Witness .3 does not say anything about the filling of the CFSL form. The road certificate has not been produced, had it been produced it would have shown whether the CFSL form was deposited with the Moharrar Malkhana and from there it was taken to the office of CFSL. In the absence of the Road Certificate it cannot be said as to what articles were taken out from the Malkhana and were carried by road to the office of the, CFSL. From this an inference can be drawn that all the proceedings were conducted in the police station itself. This find support from the testimony of Istagar Hussain Public Witness .5 an independent witness who stated that all proceedings took place at the Police Station and not at the spot. If the proceedings had taken place at the spot as alleged by the member of the raiding party, then what prevented the Investigating Officer to fill the CFSL form and affixed his seal on the same. In fact joining of the alleged independent witness shows that the prosecution has tried to show the compliance of the .provision of law.The independent witness has not supported the version of the prosecution. According to him, he was made to sign the recovery memo in the police station. According to learned counsel for the petitioner this creates a doubt about the truthfulness of the story of the prosecution. The testimony of Head Constable Suresh Pal, the Moharrar Mal Khana, Public Witness . 9 shown that the CFSL form was not deposited with him.

(9) I have heard counsel for the parties and perused the record. The contention of Mr. Andley that since the public witness Istgar Hussain, Public Witness .-5, was declared hostile, therefore, no reliance on the prosecution case should be made. I find no force in this submission. From the statement of other members of the raiding party who even though police officials, if their statement inspires confidence, I see no reason to disbelieve them or the prosecution story. But the question for consideration is whether from their testimony any case is made out? The apprehension of the tampering of the parcel alleged to have been sealed at the site, containing Charas in question is alleged? But the prosecution has failed to dispell this assertion. The Investigating Officer, appearing as Public Witness .-9, nowhere stated as to what happened to the seal after use. He does not say that the same was handed over to the independent withness, or that the same was deposited with the Moharrar Malkhana. C.F.S.L. form was not filled as is apparent from the testimony of the prosecution witnesses, nor it was deposited with the Moharrar Malkhana. What will be the consequences if the CFSL form is not filled or deposited with the Moharrar Malkhana, particularly when the seal after use is not handed over to an independent witness? According to High Court Rules and Orders Chapter 18(part-B) Clause 8 and 3 in all cases of transmission of articles to-the Chemical Examiner a letter of invoice giving full description of articles sent should be dispatched. According to Clause Ii proper custody of articles throughout the various stages of inquiry must be established and traced. But in the present case Asi 0m Parkash appearing as Public Witness .7 does not say anything about the filling of the CFSL form but says that be deposited those sealed parcels in the Malkhana at Police Station Mehrauli. Moharrar Malkhana appearing in Court nowhere staled that he seat the article to the Chemical Examiner along with the CFSL form. This aspect assumes importance particularly when the seal used was not banded over to an independent witness.The seal after use were kept by the police officials themselves therefore the possibility of tempering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tempered with. The prosecution could have proved from the CFSL form itself and from the road certificate as to what articles were taken from the Malkhana. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused. The provisions of NDPS Act are so stringent that it casts a duty upon the prosecution to rule out any possibility of tempering of the sample. That is why every time the Courts have come heavily on .the prosecution, when the prosecution fails to discharge the burden of proving that the sample taken and sealed was not tempered with as long as it remained in its custody. In the case of Pradeep Kumar Vs. State reported in 1989 (2) Chandigarh Law Reporter-702 it was held by Santosh Duggal, J. that the safeguard for ensuring the sanctity of the seal would be defeated if the DFSL form containing the specimen of seal is not deposited in the Malkhana together with the sealed parcel.This assumes importance particularly when the Sdo never supervised the sealing of the parcel and also because the seal after use was not given to the independent witness justifies the conclusion that there was no guarantee against tempering with the seal and the contents of the parcel. These observations made by Mrs.Santosh Duggal, J. aptly apply to the facts of this case.

(10) According to Form No. 10.17 of the Punjab Rules Vol.1 regarding road certificate at pages No.166-167, it is clearly mentioned that all the articles taken from the Police Station are to be separately and clearly mentioned in such certificate. In - the case in hand, the road certificate was neither produced nor exhibited, therefore, ill the absence of the road certificate it is also not clear whether the CFSL form was ever taken out from the Malkhana and sent along with the sample to the CFSL office.

(11) It is nowhere the case of the prosecution that the seal after use was handed over to the independent witness Public Witness .5. Even the 1.0. Public Witness .7 does not utter a word regarding the handing over of the seal after use. Therefore, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled out. Since the Inspector Omveer Singh, appearing as Public Witness .-8, has tried to improve his statement in the Court, to my mind, no reliance can be placed on his statement, particularly when the Investigating Officer and the Moharrar Malkhana do not say anything about the deposit of the CFSL form with the Moharrar Malkhana. In these circumstances I am clearly of the view that the prosecution has failed to prove this link evidence to show that the sample parcel was not tampered with the anyone before it was examined by the C.F.S.L. and the benefit of the same must go to the appellant.