Babu vs State

Vijender Jain, J.—This appeal arises out of an order of conviction filed by Addl. Sessions Judge dated 14.11.1992 convicting the appellant for an offence punishable u/s 21 of the NDPS Act, 1985 and sentencing him to undergo rigourous imprisonment for ten years and to pay a fine of Rs.1 lakh.

Ms. Vohara, amices curiae has contended that in the Malkhana Register it has not been recorded that the CFSL form was deposited with the Moharrer. She has further contended that although the prosecution led the evidence that it was the SHO who deposited the case property with the Moharrer, Malkhana, whereas in the register, Malkhana, it was S.I. Ram Chander who deposited the case property. She has contended that PW 5 Head Constable Khazan Singh in the examination in chief, has stated that he had deposited the CFSL form and SHO deposited the case property, however, in the crossexamination he himself has admitted that it is not recorded in the register, Malkhana that CFSL Form has been deposited. As a matter of fact, S.I. Ram Chander in his own deposition has stated that the case property was deposited by the SHO, which completely falsify the deposition in view of the entry recorded by Moharrer, Malkhana that the case property was deposited by SI, Ram Chander.

In State of Rajasthan Vs. Daulat Ram 1980 CC, Supreme Court has observed that the prosecution has to prove all the links starting from the seizure of the samples till the same reaches the hands of public analyst so that the Court could conclude that seal remains intact throughout. In the present case, it seems that it has not been the case. As a matter of fact, there is material contradiction between the register, Malkhana and the deposition of the prosecution witnesses with regard to the identity of the person who deposited the case property as well as with regard to the deposit of CFSL form.

Learned counsel for the appellant has cited in support of her arguments Chameli Devi Vs. State 1993 JCC 293, Mool Chand Vs. State 1993 (2) Del Law 14, Anoop Joshi Vs. State 1992 (2) CCC 314, as well as Datu Ram Vs. State 1996 1 AD (Delhi) 521. She has also cited Sham Lal Vs. State 1997 5 AD (Delhi) 517 that the non-deposit with the Moharrer, Malkhana CFSL report is fatal for the prosecution case. Even otherwise, in this case, the appellant was detained on 15.6.1990. From that date till 13.7.1998 he was confined in the jail. That means he has spent almost eight years in the judicial custody.

In view of the infirmities discussed above, I set aside the order of sentence and conviction dated 14.1.1992 passed by Addl. Sessions Judge and allow the appeal. The appellant be set at liberty, if not warranted in any other case.

Appeal is allowed.

Copy of this order be sent to the Superintendent, Jail.