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8. Attention of this Court was further drawn to the statement of Investigating Officer (PW-4) wherein he has submitted that substance recovered from all packets gave positive results for "Opium Alkaloids"

whereas according to the report of the CRCL (Ex-PW-8/A), the substance found was Heroin. Pertinently, on this aspect, appellant had filed an application for retesting of the recovered substance, which was allowed by trial Court vide order dated 21.01.2011 directing that the fresh samples be drawn and sent to CRCL for retesting for the purpose of determining the presence of "Diacetyl Morphin" Being aggrieved, DRI challenged the said order vide Crl.M.C. 770/2013 and the same was dismissed by this Court vide order dated 21.08.2014. Having no option, DRI sent the samples for retesting. However, the subsequent report dated 21.01.2015 (EX. PW19/8) showed the percentage of "Diactyl Morphin" at 2.9%, 2.7%, 3%, 3.2% and 3.3% respectively.

9. Further, learned counsel for appellant drew attention of this Court to cross-examination of Ajay Sharma, Assistant Chemical Examiner (PW-19) wherein the trial court itself had raised questions with regard to purity percentage of the samples recorded differently in reports dated 22.10.2008 and 21.01.2015 and submitted that with passage of time due to moisture temperature and storage condition the diacetylmorphine (heroin) deteriorates and gets converted to monodactyl morphine and also if there are two different reports, then it is drawn from the different samples.

32. With regard to the discoveries made, the Investigating Officer (PW-4) in his examination-in-chief has stated that the substance recovered is "Opium Alkaloids", however, as per the report of the CRCL (Ex.PW-8/A) the substance recovered is "Diactyl Morphin" (Heroin). The contradictory stand of prosecution was challenged by the appellant by filing an application for retesting, which was allowed and fresh samples were drawn and sent for retesting for determination of "Diactyl Morphin" (Heroin). Pertinently the relevant portion of report dated 22.10.2008 reads as under:-

Further, this witness has categorically started that if there are two different reports, one of "Diactyl Morphin" (Heroin) and the other of "Opium", it can be safely assumed that it is drawn from the different samples. This witness has further stated that "a sample cannot give two different results of the "Diactyl Morphin" (Heroin) and "Opium" at the same time and it can be safely assumed, it is drawn from the different samples.

35. In a somewhat similar case, a Bench of this Court in State Vs. Patrick & Ors. 2014 SCC OnLine Del 4446 in an appeal preferred by the State against acquittal of the accused, while upholding the order of acquittal by the trial court, had observed and held as under: -