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17. Mr. Abhishek Singh further submitted that by relying on the judgment in Daulat Ram v. State of Punjab (1997) 10 SCC 236 that the mere weakness in the case of the accused cannot lead to holding that the prosecution has proved its case. The prosecution case had to stand on its own legs. It was next submitted that the non-production of the secret informer as a witness could be fatal to the case of the prosecution. Reliance was placed on the decision of the Division Bench of this Court in Surender v. State 2009 6 ILR Delhi 549. Lastly, it was contended that the FSL report in the present case has not categorically held that the recovered substance is opium but only mentions the percentage of morphine. The order of the Division Bench dated 4th July 2010 had left it to the Appellate Court actually to undertake the exercise of determining what the seized substance was, in light of the evidence on record. It was submitted that in the absence of a clear report by the FSL that the recovered substance is opium, the charge against the accused cannot be said to be proved.

Ans. Yes it is correct that I have not mentioned the number of seals imposed on the parcel A. (Vol. Two types of seals were imposed.)"

27. PW-10 denied the suggestions that she had made a false statement in the FSL report about tallying the seals. It is clear from the FSL report itself that the official who undertook the test did receive parcel A which contained the envelope with both the seals. It also clearly states that those seals were tallied with the impressions forwarded along with the forwarding letter/FSL Form. It is important, therefore, to extract the entire report dated 2nd July 2004 of the FSL (Ex. PW-10/A) which reads as under:

31. This brings up the last aspect of the matter which is whether the prosecution has been able to prove that what was seized from the Appellant was in fact opium.

32. The FSL report which has been extracted above states that exhibit 'A' gave positive tests "for the presence of meconic acid, morphine, thebaine, codeine, narcotine and papvarine which are main constituents of opium". Further, the HPTLC examination revealed that "exhibit 'A' was also found to contain morphine 0.24 per cent". The FSL report does not unambiguously state that Exhibit A is a coagulated juice of the opium poppy or that it is a mixture, with or without any neutral material, of the coagulated juice of the opium poppy. In the absence of the FSL report clearly stating that the sample tested positive for coagulated juice for opium poppy or a mixture thereof, with or without any neutral material, the question of the entire substance being classified as opium within the meaning of Section 2(xv) is itself in doubt.

34. Even the Division Bench noted the above fact. The Supreme Court in Amarsingh Ramjibhai Barot went on to hold that the substance found was an opium derivative. That was because the substance was found to contain 2.8% of morphine. The Supreme Court went on to hold that the substance would fall within the definition of opium derivative under Section 2(xvi) of the NDPS Act.

35. It is significant that in the present case what recovered was a black sticky substance whereas the FSL report described it to be dark-brown sticky solid substance. PW-10 was in fact asked a question in this regard and she answered: "I can distinguish between dark-brown colour and black colour". However, no further question was asked of her on this aspect. Under Section 2(xvi) (e) of the NDPS Act, "all preparations containing more than 0.2 per cent of morphine or containing any diacetylmorphine" would answer the definition of 'opium derivative'. With the FSL report not being binding upon Court, in the present case it can safely be stated that the FSL report does not categorically state that the substance seized from the Respondent answers the definition of 'opium' under Section 2(xv) of the NDPS Act.