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(1) The appellant, a Nigerian citizen was apprehended on 19th February,1989 while coming towards Chanakya Hotel. As per prosecution story, a secret information was received by SI.Harbans Lal that appellant would be coming towards Chanakya Hotel. He would be having smack in his possession. On this information being received, S.I. Harbans Lal (Public Witness -7) Investigating Officer (in short 1.0.) of this Case organized a raiding party comprising ofA.C.P" S.H.O., Sub Inspector and two public witnesses namely Surender Kumar, owner of Chanakya Hotel and Kuldeep Grover, Manager of the said Hotel. At the time of appellant's apprehension he was having a bag in his hand. He was asked as to what that bag contained. After making this enquiry the Acp introduced himself to the appellant and told him that the appellant and his bag has to be searched. A.C.P. gave option to the appellant to be searched before the Magistrate or Gazetted Officer. However, the appellant declined the offer. From the search of the appellant, 150 baloon like capsules were recovered containing 700 gms. of smack. Out of which 10 gms. was taken out as sample for analysis. The remaining smack was converted into Pullanda. The pullanda and the sample were sealed with the seal of Hl and TR. Cfsl form was also filled at the spot. The case property and the sample alongwith Cfsl form were deposited in the Malkhana of the Police Station. The analysis report was in the affirmative hence challan against the appellant was put up.

(6) No evidence has been adduced by the prosecution to prove as to where the Cfsl form remained. As per Acp P.S.Tomar PW-4 and the investigating Officer Si Harbans Lal PW-7 the Cfsl form was filled up at the spot. But from the copy of the Register of Moharar Malkhana produced in Court as Ex.PW-2/A clearly show that Cfsl form was not deposited. If the Cfsl form was filled up and not deposited with the sample then apparently there was every chance to tamper the sample. The seals affixed on Cfsl form were not available for the public analyst to compare with the seals on the sample. PW-3 Constable Bhupinder Singh who went to deposit the sample in the Office of the Cfsl no where slated that along with the sample he was given the Cfsl form nor he deposited the same in the office of CFSL. Similarly, Moharar Malkhana appearing as PW-2 also did not mention. that Cfsl form was deposited. Therefore, the statement. of the Sho PW-8 that the Cfsl form was deposited with the Moharar Malkhana stands refuted by the testimony of PW-2 & PW-3 as well as from Ex.PW-2/A i.e. copy of the Register of Malkhana. In view of the documentary evidence namely Ex.PW-2/A, it is clear that the Cfsl form was not deposited nor the same was sent to the office of Cfsl alongwith the sample. A very glaring fact has come on record which points to the possibility of tampering with the sample. Mr.V.S.Bisaria, PW-9, Sr.Scientific Officer of the office of Cfsl proved on record only the forwarding letter dated 21st February,1989, through which the sample was deposited in the office of the CFSL. PW-9 further testified that on the reverse of that forwarding letter dated 21st February,1989 specimen of the seals were affixed. If that be so, then it is a clear case of tampering with the seals or the sample because sample was sealed and so was the Cfsl form at the Spot on 19th February,1989. Then how could forwarding letter dated 21st February,1989 was treated as Cfsl form by PW-9 and how seals were affixed on the reverse of this letter dated 21st February,1989 when the 1.0. says he collected back the seals from the public witness after 5-6 days. This aspect of PW-9's statement leads to only one conclusion that seals were in possession of the police or might have been obtained from public witness because he being owner of the Hotel was known to police, officials from before. Seals being affixed on the reverse of the letter dated 21st Pebruary,1989 lend support to this inference, otherwise there is no explanation given as to how the seal specimen found its way on the reverse of the letter dated 21st February,1989 particularly when the documents were filled up on 19th February,1989 and so was the Cfsl form. In the absence of any explanation I am in agreement with the contention of Mr.Sarin that presumption that sample was tampered cannot be ruled out. Since the senior police officials knew from before the so called public witness owner of the hotel hence inference can be drawn that they must have taken back the seals from him. That is how seals could be affixed on the reverse of the said letter dated 21st February,1989. When the possibility of sample being tampered is there and office of Cfsl had no opportunity to compare the seals of sample with the seals on the Cfsl form then in the words of this Court in the case of Datu Ram V. State reported in 19961 Ad (Delhi) 521 wherein it was held that when the prosecution failed to prove the deposit of the Cfsl form in the Malkhana and thereafter taking it out alongwith sample and deposit in the office of Cfsl in such a case linking evidence that sample was not tampered with being missing prosecution must fail.

(10) From the above discussion the only ground on which appeal succeeds is the doubt with regard to the tampering of the sample created on account of the testimony of PW-9 V.S. Bisarika, when he admitted that he compared the seal on the parcel with the seals affixed en the reverage of the letter dated 21st February, 1989 and he treated that letter of 2l February,19B9 to be the Cfsl form which had the specimen seal of Hl & Tr affixed on that. This shows that the sample which was compared with the seal affixed on the letter dated 21st February,1989 either had been tampered with or it was not the same sample which is alleged to have been taken out from the smack recovered from the appellant, As already observed above, neither the Cfsl form was deposited with the Moharar Malkhana as is apparent from Ex.PW-2A nor the said Cfsl form dated 19th February,1989 was deposited in the office of the Cfsl for comparison. Hence, the presumption that sample was tampered with cannot be ruled out. The evades that sample remained intact is in this case which the prosecution tried to fill up by forging forwarding letter of 21st February,1989 on the reverse pf which affixed sea;s purported to be of the impression of Hl & TR.