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4. It is also the case of the prosecution that upon the accused No. 2 being searched, it was found that except an amount of Rs. 130 in cash, nothing incriminating was found and hence, except the said cash amount of Rs. 130, nothing was seized from the accused No. 2.

5. It is also the case of the prosecution that a memo with regard to the seizure of the goods was handed over to the accused. A panchnama was drawn at the scene of offence and subsequent thereto, the accused were arrested on account of their having committed an offence punishable under the provisions of the Act and an arrest memo was served on them. P.I. Parmar thereafter got prepared and filed his complaint against the accused. Subsequent thereto, both the accused, the seized muddamal as well as the members of the raiding party came over to the Gandhinagar Zone Police Station and an offence came to be registered in the station diary of the Gandhinagar Zone Police Station at II C.R. 24/2000. Subsequent thereto, a muddamal receipt was got prepared and the Senior Officer was informed with regard to the successful carrying out of the raid in question. Thereafter, further investigation was carried out by P.W. 4 Mr. J.B. Rana, P.S.I. who after taking charge of the investigation, took possession of the muddamal, the accused as well as the relevant documents pertaining to the raid and during the course of his investigation, he forwarded the sample to F.S.L. for analysis and test thereupon. On receipt of the relevant documents pertaining to such chemical analysis, the same were made part of investigation records.

16. Mr. Keshwani has further submitted that both the Police Inspectors, who claimed to be present right since the time when the secret information was received till the time the accused were arrested, have also contradicted the documentary evidence with regard to the number of seals affixed on the muddamal contraband narcotic substance. In absence of independent corroboration in the form of support of the Panch witnesses, this contradiction itself creates grave doubts with regard to the identity of the muddamal. P.W. 2 in the course of his testimony, clearly indicated that only one seal was applied on each of the Muddamal being mark A, A-1 & A-2. Even P.W. 3 Mr. Chauhan, in the course of his testimony Exh. 33 has deposed in a similar fashion stating that only one seal was affixed on each of the muddamal samples. However, F.S.L. Report Exh. 37 gives a description of the muddamal sample mark A-1 and it has been clearly stated that the packet earmarked as mark A-1 was having two seals on it. He has, therefore, submitted that grave doubts have been created with regard to the identity of the muddamal in question which was sent to F.S.L. for analysis and test thereupon.

31. This Court has again considered this issue in Criminal Appeal No. 287 of 1999 in the case of Ganpatram Punmaram Vishnoi v. State of Gujarat decided on 07.05.2002 Additional Public Prosecutor, as an officer of the Court, has pointed out in the case that no proper sealing has been done by the PSO and, therefore, possibility of tampering with the muddamal cannot be ruled out. The Court took the view in that case that the slip signed by the panchas as well as the PSO, which was kept along with the polyethylene bag is required to be affixed at the outer portion below the wax seal of the police station. If the police keeps the slip signed by the panchas and the PSO along with the sample muddamal and affix the seal of the police station at the outer portion of the bag, possibility of tampering the muddamal cannot be ruled out as the official seal always remains with the concerned police station. The Court, therefore, held that it is obligatory on the part of the police to see to it that the slip signed by the panchas as well as the concerned Officer is affixed at the outer portion of the sample bag below the official seal of the police station. This procedure will totally rule out the possibility of any tampering with the sample muddamal. This has not been done in that case and hence, the Court held that the procedure adopted by the PSO cannot be said to be free from any doubt and the possibility of the tampering also cannot be ruled out. The Court held that in any case, the benefit must go to the accused.

36. The panch witness, namely, Mayurbhai M. Mistry P.W. 1 Exh. 13 in his deposition has, however, denied the fact regarding recovery of muddamal as well as sealing procedure. The other panch witness has not been examined at all by the prosecution. Even if we ignore the evidence of the panch witnesses, the sealing procedure narrated in the evidence of P.W. 2 and P.W. 3 is found to be defective and possibility of tempering with muddamal cannot be ruled out.

37. As observed earlier, there is also contradiction with regard to the affixing of seal as the police witnesses have stated that there is only one seal affixed on the sample marked A/1 whereas F.S.L. Report says that there were two seals on the said sample. From the evidence of these police witnesses and F.S.L. Report, it is clearly found that the slips were loosely kept in the cloth bag and it was not affixed on each of the plastic bag. The report further makes it clear that the proper procedure has not been followed by the raiding party and/or Investigating Agency. Because of the material contradictions between the depositions of the prosecution witnesses regarding the affixing of the seal and the sealing procedure coupled with the serious doubt raised about custody of Muddamal articles, this Court is of the view that there may be a possibility of tampering with the contents of the sample before they were sent to F.S.L. for analysis. When there is possibility of tampering with the contents of the sample, then no reliance can be placed on the expert opinion and the report of the F.S.L. and it cannot be said that the contraband articles were seized from the possession of the accused and that the sample therefrom was taken and that the sample was sent for analysis and that the report of the expert is regarding the same. When it is so, then the report deserves to be discarded in toto. Standing Instructions issued by the Central Government are violated as contradiction is found in the evidence of P.W. 2 & P.W. 3 with regard to the fact of accused signing the slips which were found in the cloth bags containing the samples. In light of these discrepancies, it is very unsafe to sustain the conviction order. Both the accused are arrested in November, 2000. Almost 6 years are about to be over. It is very unfortunate that the appeal could not be heard earlier. Because of the fact that this Court has consistently taken the view that when the sealing procedure is not adopted in accordance with the provisions of the Act as well as the guidelines issued by the Central Government and if other contradictions, inconsistencies and infirmities are found, in that case, the conviction cannot be upheld.