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11. Entry regarding the registration of the offence from the Station Diary dated 1st April 1991 Ex. 37.

5. Upon appreciation of the aforesaid evidence, the learned Additional Sessions Judge came to the conclusion that the prosecution established its case beyond reasonable doubt. He dealt with the submissions made on behalf of the defence. He observed that the variations in the prosecution evidence with regard to appearance of tin box in which the muddamal article was placed were minor in nature and did not tend to adversely affect the prosecution case. Dealing with the arguments with regard to the procedure followed at the time of search and seizure, the learned Additional Sessions Judge has observed that the muddamal article was searched and seized on the spot. The same was held to have been found from the possession of the accused at the relevant point of time. He has also observed that the seals and the slip were opened up in the F.S.L. (Forensic Science Laboratory) and that there remained no doubt with regard to the seals having remained intact till the muddamal article came to be examined by the expert in the Forensic Science Laboratory. He observed that the muddamal article came to be entrusted by Mr. Jadeja at 12.10 night on the same day in the sealed condition and during morning hours on the next day i.e. on 2nd April 1991 it was entrusted to Constable Ratilal for being sent to F.S.L. He has therefore upon appreciation of evidence found that there is no likelihood of muddamal article having been disturbed or tampered with in any manner. Dealing with the description of tin box, the learned Judge has observed that the tin box has been clearly described with the depiction of `Taj Mahal' appearing on the tin box in the FSL report. He has also observed that simply because there were one or two marble shape pieces of charas in the muddamal it could not be inferred that there was some occasion for the muddamal article being tampered with. Simply because the pieces have not been specifically described in the Panchnama, such a presumption could not be drawn. Dealing with all the submissions made with regard to muddamal charas, the learned Additional Sessions Judge has come to the conclusion that there was no occasion for the muddamal being tampered with before the same could be examined and reported about by the experts from the Forensic Science Laboratory.

It is not in dispute that there was seal of the gazetted officer, namely Police Inspector who was also in-charge of the Gomptipur police station. It is also not in dispute that when the search was carried out on the spot at the time of the incident on 1st April 1991, the muddamal article, namely 219 grams of charas after it was weighed was packed into a tin box and was sealed and handed over to another PSO keeping the seals intact. It would be important to note at this point of time that there was no occasion of either the Police Inspector or any other officer to take out by way of sample or separate any portion of the muddamal article from the tin box for the same being transmitted to the expert in Forensic Science Laboratory. Instead the whole of the muddamal as it stood sealed in the tin box had been sent to the Forensic Science Laboratory. We will deal with the discrepancy in the description of the muddamal article given by the concerned witnesses when we deal with the submissions revolving round such and other discrepancies pointed out for the purpose of appreciation of evidence. For the present, we reiterate that the muddamal article as it came to be seized and sealed stood transmitted to the Forensic Science Laboratory without the same being dealt with in any manner by any of the officers, and in this regard there appears nothing giving rise to doubt.

From the aforesaid decisions, we may observe here that we are unable to find facts which may be said to be parallel in the matter of seizure and sealing of muddamal articles and expedition with which the whole of the muddamal article has been sent for scientific examination by the expert in the Forensic Science Laboratory, in so far as the present case is concerned.

17. At this very stage, we may also refer to a decision of the Hon'ble Supreme Court in the case of Valsala v. State of Kerala, reported in AIR 1994 S.C. 117, referred to by the learned advocate for the accused. The Apex Court has not gone into the question with regard to whether Sec. 55 of the NDPS Act is mandatory or directory. The facts before the Supreme Court clearly indicate that the article seized did not appear to have been kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the Chemical Examiner. Besides, there was delay of more than 3 months in sending the seized articles to the court. What is important to be noticed from this decision is that the question viz., Sec. 55 of the NDPS Act is mandatory or directory has been left open by the Apex Court. In the case on hand, the whole of the muddamal article with the seals intact came to be transmitted immediately on the next day for chemical examination by the expert in Forensic Science Laboratory and the communication and the report of the expert from Forensic Science Laboratory clearly indicate about the seals having remained intact till upto the stage of examination of muddamal article.

We would first deal with the discrepancy with regard to the difference in the description of muddamal articles. A reference in this regard has first been made to Exhibit 34, which is the complaint. It has been recited in this complaint that upon search of the person of the accused having been carried out, small pieces of black colour and powder in a plastic bag could be located from the right pocket of the pant of the accused. Same is the description of the muddamal in Panchnama Ex. 10. P.W. 1 Chandansinh Hadmatsinh Chauhan Ex. 8 has described the muddamal article as stock of charas contained in the plastic bag but in his cross-examination he has admitted that he could notice in the court in the muddamal article one big piece in plastic bag and some small pieces and powder in another plastic bag. He has admitted that he could not explain separation of the muddamal in the plastic bags as the same was done in the Forensic Science Laboratory. He has also admitted that other 8 packets which have been given the signals No. 2 to 8 were not given at the time when the muddamal articles were seized and sealed in a tin container. It has to be noted that there is no dispute with regard to the fact that the muddamal article having been placed in the tin container and duly sealed was without any delay sent to the Forensic Science Laboratory. Now, if the expert in the Forensic Science Laboratory saw to the samples being made for examination by giving signals to the different packets, it can hardly be said that there is a discrepancy with regard to description of muddamal which would throw doubt about tampering thereof either in the police station or during transit. We have gone through the evidence of the witnesses in respect of description of muddamal articles. We need not repeat the submission made there from. The appearance of muddamal articles in two marble type pieces and in other pieces as well as powder form contained in plastic bags, clearly relates to the separation of articles for the purpose of chemical examination in the Forensic Science Laboratory. It has not been suggested either in the trial or before us that any mischief was likely to have been played in the Forensic Science Laboratory. We are, therefore, not inclined to accept the submission of learned advocate for the accused concerning the difference in the description of muddamal as noted above. In our opinion, such discrepancy does not appear to have caused any prejudice to the accused.