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3. The appellant abjured his guilt. Learned Additional Sessions Judge, on an assessment of evidence of the prosecution witnesses, namely, Head Constable Onkar Singh (PW 2), ASI Jawaliar Singh (PW 3), Constable Revinder Kumar (PW 4), Inspector Shish Ram (PW 5), Constable Satpal Singh (PW 6), Sub-Inspector Devinder Singh (PW 8) and Constable Satish Kumar (PW 9), accepted the prosecution case and convicted and sentenced the appellant as indicated above.

4. The prosecution examined Nek Pal Singh (PW 1), Head Constable Onkar Singh (PW 2), ASI Jawahar Singh (PW 3), Constable Ravinder Kumar (PW 4), Inspector Shish Ram (PW 5), Constable Satpal Singh (PW 6) and Sub-Inspector Devinder Singh (PW 8) to prove that the raiding party was organized; that the appellant was apprehended near Trilok Puri Church and further he was found in possession of the contraband which was seized vide seizure memo Ex. PW1 /A. Nek Pal (PW 1), is the only independent Panch witness and he has not supported the prosecution case. He has been declared hostile by the prosecution. Nothing has been elicited in his cross-examination to show or suggest that either he was hostile towards the prosecution or intimately connected with the welfare of the appellant. However, the remaining witnesses testified that the contraband was seized from the appellant and the sample of five grams of smack was drawn, that the sample as well as the remaining smack was converted into separate parcels and were duly sealed on the spot. It has come in the evidence of Sub-Inspector Devinder Singh (PW 8) that CFSL form was also filled-in on the spot and sealed parcels alongwith the CFSL form were delivered to the SHO Shish Ram (PW 5) for being deposited in the Police Malkhana. SHO Shish Ram (PW 5) testified that he had deposited the case property and the CFSL form in the Police Malkhana. Head Constable Daya Ram (PW 7) deposed that on 8.9.1996, Inspector Shish Ram PW 5 had deposited two sealed parcels alongwith the seals and one CFSL form containing the sealed impression. He further deposed that on 22.9.1996, he had sent the sealed property alongwith CFSL form to CFSL, Chandigarh vide entry (Ex. PW 7/A) in the Malkhana Register.

6. Learned Counsel for the appellant has also contended that possibility of the sample being tampered with in the present case cannot be completely over-looked inasmuch as the link evidence which could complete the chain that the sample was duly sealed on the spot and the same had reached the Malkhana of the Police Station Trilok Puri and also reached the office of the Chemical Examiner unhampered. Head Constable Dev Raj (PW 7) has proved the Malkhana entry (Ex. PW 7/A). The said entry contains a detailed narration as to how the raiding party was organized, how the appellant was apprehended on the spot and further how the contraband was seized from his possession. But the said entry is conspicuous by the absence of any deposit of the sealed sample alongwith the CFSL form being made by the SHO Shish Ram (PW 5). It is also significant to mention that there is nothing in the said Register to indicate that the sampled contraband alongwith the CFSL form was despatched to the CFSL, Chandigarh. In other words, there is no mention in the Register (Ex. PW 7/A) that the CFSL form has been deposited or the same had been sent to the CFSL, Chandigarh alongwith the sampled contraband. It was incumbent upon the prosecution to prove that not only the contraband articles were duly sealed and deposited in the Police Malkhana unhampered. but it was also necessary to prove that the sampled contraband which had been duly sealed remained intact and unhampered. till it reached the office of the CFSL for Chemical examination. As noticed earlier, the entry (Ex. PW 7/A) does not prove that the CFSL form which was allegedly filled-in at the time of taking of the sample was deposited in the Malkhana and it was sent in the same condition to the office of the CFSL, Chandigarh. Thus, in the present case, the benefit arising out of the circumstances mentioned above, must necessarily go to the appellant.