REPORTABLE

              IN THE SUPREME COURT OF  INDIA

         CRIMINAL APPELLATE JURISDICTION   

 CRIMINAL APPEAL NO.   18    OF 2003

STATE OF RAJASTHAN ..  APPELLANT

vs.

DAUL  

@ DAULAT  

GIRI

..  

RESPONDENT

J U D G M E N T

Dr. ARIJIT PASAYAT,J.

Challenge  in  this  appeal  is  to  the  judgment  of  the  learned  

Sessions Judge of Rajasthan High Court at Jodhpur directing acquittal of the  

respondent  who  faced  trial  for  alleged  commission  of  offence  punishable

under Sections 8 and 18 of the Narcotic Drugs and Psychotropic Substances  

Act, 1985 (in short `NDPS Act') and was convicted by learned Special Judge,  

NDPS cases,   Chittorgarh  in  Sessions Case No.  252/97  (48/95).   The trial  

Court  convicted  him  to  undergo  sentence  for  ten  years  rigorous  

imprisonment and to pay  fine of Rs.1,00,000/- with default stipulation.   

Prosecution version as held during trial was that the respondent  

was found to be in possession of merely 6 Kg. of opium. PW.1  

Jaswant Singh, SHO, Police Station Kanera  

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District Chittorgarh prepared a Parchakayami  (Ex.P/7) on 15.6.1995 at about

7.15 p.m. stating inter-alia that on 15.6.1995 at about 2.00 p.m., he received a  

secret  information from mukhbir  to the effect  that on that  day before 6.00  

p.m.,  one  person,  namely,  Daul  Giri  (present  accused  respondent)  S/o  

Madhugiri, resident of Shamkhdo Ka Kheda  having opium in his possession  

would pass through Palchha Ghata on foot from the village Badawali.  That  

information was reduced into writing by  Jaswant Singh (PW.1) and the same  

is  Ex.P/2  and  apart  from  this,  that  information  was  also  produced  in  

Rojnamcha Ex.P/1A.  The copy of the secret  information was  also sent  by  

Jaswant  Singh  (PW.1)  to  superior  officer  Dy.  PP  Khetdan  (PW.13)  and  

Khetdan  (PW.13)  was  also  requested  to  come  and  join  the  raiding  party.  

Thereafter,  Jaswant  Singh  (PW.1)  alongwith   Khetdan(PW.13),  Manikant  

(PW.12),  Reader  of  Dy.  SP and other  police  officials  and one independent  

motbir  Parbat  Singh (PW.6)  proceeded  towards  the  spot  in  a  Government  

vehicle  at  about 4.0o p.m.  and at  about 4.15 p.m.,  they reached Badawali-

Pallchha  Road and made  Nakabandi  and  during  Nakabandi,  at  about  5.00  

p.m., they saw one person having gunny bag on his head coming on foot from  

Badawali and he was encircled and on being asked, he told his name as Daul  

Giri  (present  accused  respondent).  Thereafter,  the  accused  was  informed  

about the secret information that he had contraband opium and, therefore, he  

was to be searched.  Before making search, the accused appellant was given

a notice Ex.P/3 under the provisions of Section 50 of the NDPS Act asking him  

whether he  

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wanted to be searched before the Magistrate or Gazetted Officer and upon  

this, the accused gave his consent  that he could be searched by Jaswant  

Singh  (PW.1).  Thereafter,  he  was  searched  in  presence  of  two  motbirs,  

namely,  Khetdan (PW.13) and  Parbat Singh (PW.6) and during search, from  

the gunny bag, plastic bag containing black-brown substance was recovered  

and on  being tested,  it  was  assessed that it  was  nothing but contraband

opium and on being asked, the accused told that he had no valid licence to  

keep that opium.  On being weighed, its  weight was found to be 6 k.g., out of  

which,  two  samples  of  30  grams  each  were  taken  for  the  purposes  of  

chemical analysis and sealed separately on the spot and marked as A/1 and  

A/2  and the remaining opium was  also sealed  separately on the spot and  

marked as A.  The fard-

of search and seizure was prepared on the spot by Jaswant Singh (PW.1) and  

the same is Ex.P/4.  The fard of specimen impression of seal is Ex.P/5. The  

accused was arrested through arrest memo Ex.P/6.   Thereafter regular FIR  

Ex.P/8  was  chalked  out.   Jaswant  Singh  (PW.1)  handed  over  the  seized  

articles  and  samples  to  Malkhana  Incharge   Bhanwarlal  (PW.8),  who  

deposited   the  same  in  the  Malkhana  and  made  entries  in  the  Malkhana  

Register Ex.P/15A. Thereafter, one sample was handed over by  Bhanwarlala  

(PW.8) to Surendra Singh (PW.5) for the purpose of depositing it in the FSL,  

Jaipur  and   Surendra  Singh  (PW.5)first  took  the  sample  to  SP  office,  

Chittorgarh and after  obtaining a forwarding  letter  Ex.P/12  dated 20/6/1995  

from SP office, Chittorgarh, he deposited that sample in FSL, Jaipur

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and obtained receipt Ex. P/13 dated 21/6/1995. The FSL report is Ex. P/16 in  

which it was  reported that the sample contained in the packet  marked A/1  

gave positive tests for the chief constituents of the coagulated juice of opium  

poppy having 3.6 % (Three point six  percent) morphine.

After investigation, charge-sheet was filed and as the accused  

pleaded  to  be  innocent  and  trial  was  held  in  support  of  the  prosecution  

version 14 witnesses were examined.  The trial Court held that the accusation  

was established and, as indicated above, convicted him.   

In appeal the only stand of the respondent which weighed with  

the High Court was that on the day when the samples were in the custody of

one  Jamnalal,  the  non-examination  of  aforesaid  Jamnalal  rendered  the  

prosecution version unacceptable.  Accordingly, the conviction was set aside  

and the respondent was directed to be acquitted.  

In  support  of  the  appeal,  learned  counsel  for  the  appellant  –  

State submitted that the non-examination of Jamnalal could not be fatal to the  

credibility of the prosecution version. In fact the entire scenario starting from  

the seizure of the samples till their receipt at the Forensic Science Laboratory  

(in short FSL) and the report thereafter clearly proves that the samples were  

not only sealed but were also kept in proper and safe custody.  According to  

him  when  the  seal  is  intact,  there  is  no  question  or  possibility  of  any  

tampering  as was held by the High Court.

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No one appeared  for  the respondent  though notice  has  been  

served.

The factual scenario goes to show that Jaswant Singh (PW.1),  

the I.O., seized the articles on 15/6/1995. The search memo is Ex. P.4 and the  

specimen impression of the seal Ex. P.5.  PW.1 deposited the seized articles  

and sample with Bhanwarlal  (PW.8) who was the Malkhana In-Charge in the  

Malkhana register in Ex. P.15A.  PW.8 handed the material to Surendera Singh  

(PW.5) for depositing the sample in FSL.  PW.5 reached the Superintendent of  

Police office and gave the samples to Jamnalal  at 10.00 a.m. and received  

back the samples from Jamnalal at 5.00 p.m. and also obtained forwarding  

letter which is Ex. P.12 and is dated 20/6/95. PW.5 submitted the samples to  

FSL and obtained acknowledgment receipt it is Ex. P.13.  The role of Jamnalal  

is very limited; that is receiving sample at 10.00 a.m. and handing  samples  

back at 5.00 p.m.  It is not understandable as to how the non-examination of  

Jamnalal  in any way affected the veracity of the prosecution version.  The  

High Court came to an attempt and unsustainable conclusion that because

Jamnalal was not examined ”possibility of the sample having been tampered  

with could not be ruled out”. The conclusion is unsustainable in view of the  

FSL report which clearly stated that the seals were intact and matched with  

the specimen seals.

In  Hardip Singh vs.  State of Punjab (2008 (8) SCC 557) it was  

held that when the seals are intact even in delay in sending the seals to the  

Laboratory is not in fatal to the prosecution case.  

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In the instant case the position stands on a much better footing.  

There was in fact no delay and in fact the samples which were kept in the SP

office  were  received back on the very same day.  There  is  no material  to  

support  the  conclusion  of  the  High  Court  that  there  was  possibility  of  

tampering  with  the  samples.   The  observation  as  noted  above  clearly  

overlooks the clear statement of the FSL report that the seals were intact.   

Looked at  from any angle, the judgment of the High Court is  

unsustainable  and  set  aside  and  that  of  the  trial  Court  is  restored.   The  

respondent  shall  surrender  to  custody   to  serve  out  the  remainder  of  

sentence.

The appeal is allowed.

                          ................ .J.               (Dr. ARIJIT PASAYAT)

             ...................J.

                                       (ASOK KUMAR GANGULY) New Delhi,

April 28, 2009.