The appellant was convicted by the Special Court (N.D.P.S. Act Cases), Vadakara, for the offence under Section 20(b)(ii)(B) of The Narcotic Drugs and Psychotropic Substances Act (for short, N.D.P.S. Act). He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of ₹ 20,000/- and, in default of payment of fine, to undergo simple imprisonment for one year. The appellant challenges the conviction and sentence passed against him by the court below, in this appeal.
2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent.
3. The prosecution case is briefly stated as follows: PW1, the Sub Inspector of Police, Nadakkavu Police Station, and his party were on patrol at about 10.35 a.m. on 02-05-2003 near the Government General Hospital, Kozhikode (Beach Hospital). While so, PW1 got reliable information that a person aged 35 was selling ganja at the bus stop on the eastern side of the Beach Road behind that Hospital. Soon PW1 sent Ext.P1 report, intimating that information, to the Circle Inspector of Police, Nadakkavu. Thereafter, PW1 and his party reached the said bus stop at 10.45 a.m. Seeing the police party, the appellant attempted to flee away. But, he was stopped there by the police party. After complying with the provisions under Section 50 of the N.D.P.S. Act, PW1 conducted a search of the body of the appellant and found a white plastic cover in his right hand. When examined after opening that cover, 13 black plastic covers and ₹ 11,220/- were seen in that cover. On opening and examining those black covers, it was found that all those covers contained ganja. Therefore, he was arrested by PW1 at 11.00 a.m. On weighing, a total quantity of 1.270 kg. of ganja was found in the covers. PW1 has taken two samples of 5 gm. each of ganja in two separate plastic covers from the bulk. Those samples were tied, sealed and labelled. They were marked as 'S I' and 'S II'. Rest of the ganja was also taken in a separate cover and tied, sealed and labelled. It was marked as 'P I'. The white plastic cover, 13 black plastic covers and newspaper sheet seen in the cover were also packed and tied, sealed and labelled and that was marked as 'P II'. All those items and ₹ 11,220/- seen were seized by PW1 under Ext.P3 Seizure Mahazar in the presence of witnesses. Thereafter, PW1 and his party reached Nadakkavu Police Station with the appellant, properties and the records at 1.00 p.m. on that day. PW1 has registered Crime No.172 of 2003 of that Police Station in respect of the occurrence. Ext.P4 is the F.I.R. thus drawn by PW1. He has prepared Ext.P5 Detailed Report and sent it to the Circle Inspector of Police, Nadakkavu. He has handed over the appellant and the properties to the Investigating Officer on that day itself. PW4, the Circle Inspector of Police, Nadakkavu, has taken over the investigation of the case on 02-05-2003 itself. He went to the place of occurrence and prepared Ext.P6 Scene Mahazar at 2.30 p.m. on 02-05-2003 in the presence of witnesses. He has questioned the witnesses and recorded their statements. He has produced the properties seized in this case before the court. Ext.P7 is the List of Property prepared by PW4. He has prepared Ext.P8 Forwarding Note and sent it to the court. The investigation of the case was continued by CW14, the Circle Inspector of Police, Nadakkavu. He has completed the investigation and submitted the Final Report before the court.
4. The court below has framed a charge against the appellant alleging the offence under Section 20(b)(ii)(B) of the N.D.P.S. Act. The appellant pleaded not guilty of the charge. The prosecution has examined PWs.1 to 4 and marked Exts.P1 to P9 and M.Os.1 to 4 on their side. The appellant was questioned under Section 313 of Cr.P.C. He has denied the incriminating circumstances shown against him. The defence has examined DW1 on its side. The court below, after considering the matter, found the appellant guilty of the offence alleged and, after hearing him on the question of sentence, imposed the sentence on him.
5. The appellant has raised several contentions challenging the conviction and sentence passed against him by the court below. It is the case of the prosecution that PW1 has seized 1.270 kg. of ganja from the appellant at 11.00 a.m. on 02-05-2003. Two samples of 5 gm. each of ganja were taken by PW1 from the bulk and both the samples were sealed by him. The fact that the samples were sealed by PW1 is specifically noted in Ext.P3 Seizure Mahazar. Ext.P7 List of Property also shows that the samples produced before the court were sealed. In Ext.P8 Forwarding Note also, the samples were described as sealed. PW1, the Detecting Officer, specifically stated that the samples were sealed. PW2, an independent witness examined for the purpose of proving the occurrence and the preparation of Ext.P3 Scene Mahazar, has also deposed that the samples were sealed. PW3, a Head Constable who accompanied PW1 at the time of the seizure of the contraband, also deposed that the samples were sealed. He further clarified that the seal so affixed was that of the Station House Officer. That means the seal so affixed was that of PW1.
6. Ext.P9 is the Certificate of Chemical Analysis. It is reported in this document that the two samples were identified to be genuine ganja. It is noted in Ext.P9 that the seals on the packet containing the samples were intact and found tallied with the sample seal provided. Whose sample seal was so provided ? Along with Ext.P8 Forwarding Note, the covering letter of the court addressed to the Chemical Examiner is attached. It is specifically noted in this covering letter that the sample packets have been packed and sealed with the seal of the court. Also noted that the specimen seal of the court is affixed. Therefore, the sample seal noted as provided in Ext.P9 Certificate of Chemical Analysis is nothing but the seal of the court.
7. The seal affixed on the samples was that of the Station House Officer namely, PW1. The prosecution does not have a case that the sample of such a seal affixed on the samples was provided along with the samples sent to the Chemical Examiner. PWs.1, 3 and 4 do not have a case that the sample seal of the seal of the Station House Officer namely, PW1 was given for comparison to the Chemical Examiner. Merely comparing the seal of the court affixed on the packet containing samples with the specimen seal of the court will not give any assurance that the samples of the contraband allegedly seized from the appellant has, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample seal of the Station House Officer which was affixed on the samples was provided to the Chemical Examiner for comparison. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the samples taken from the bulk allegedly seized from the appellant in this case.
8. This Court in Rajamma v. State of Kerala (2014 (1) KLT 506) has held as follows :
“.......... The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.”
A Division Bench of this Court in Ravi v. State of Kerala (2011 (3) KLT 353) has held that the prosecution can succeed only if it is shown that the contraband liquor which is allegedly seized from the accused ultimately reached the hands of the Chemical Examiner in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution unless it is proved that the sample which was analysed in the Chemical Examiner's Laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. These two decisions are pertaining to seizure of liquor. But, notwithstanding that fact, the principle applied in these decisions is applicable to the case on hand as well.
9. A Division Bench of the Himachal Pradesh High Court in Vineh Kumar v. State of H.P. (2009 KHC 25) considered the necessity of sending sample seal impressions to the Chemical Examiner for assuring the fact that the sample was really taken from the bulk seized. It was a case of seizure of opium and charas arising under the N.D.P.S. Act. The Division Bench has held as follows:
“There is not an iota of evidence on record to show that the seal impressions were separately sent to the Chemical Examiner. Therefore, this part of the report of the CTL is rendered extremely doubtful.”
Therefore, for these reasons, Ext.P9 Certificate of Chemical Analysis is also rendered a doubtful one entitling the appellant to benefit of doubt.
10. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence alleged against him.
11. In the result, the conviction and sentence passed against the appellant are set aside. He is acquitted of the offence under Section 20(b)(ii)(B) of the N.D.P.S. Act. He is set at liberty. The amount, if any, deposited by the appellant complying with the orders of this Court shall be returned to him.
This appeal is allowed.
ks & kns/-
Sd/-
BABU MATHEW P. JOSEPH JUDGE //TRUE COPY// P.A. TO JUDGE