Malik Sharief-Ud-Din, J.

( 1 ) THE appellant aggrieved by his conviction and sentence has preferred this appeal. He was convicted under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called NDPS Act) and on 24th May 1986 was sentenced to 10 years rigiurous imprisonment and to the fine of Rs. one lakh in default of payment of which he was required to undergo R 1. for two more years. This order was passed by Mr. P. L Singla. Additional Sessions Judge, Delhi.

( 2 ) I may first notice the facts which are that the appellant was allegedly caught on 1st January, 1986 at about 9. 45 PM near Main Bazar Pahar Ganj (Baoli Chowk Paharganj), Delhi. He was found carrying a polythene bag in his hand and on search one kilogram of charas in the form of capsules and in stick form wrapped in a polythene paper was recovered. The bag was duly sealed and according to the prosecution 100 grams of Charas was taken as representative sample. The sample and the remaining seized Charas were sealed in two separate packets. Allegedly two seals were used to secure the sample and the remaining charas, one being of Public Witness 4 S. I. Banarsi Dass and the other being of Vijay Malik SHO. The seals bore the words b. D. S. and v. M. respectively. According to the prosecution story the SHO Vijay Malik had also reached the spot at the time the appellant was caught and it was in his presence that the seizure was made and the sample taken and secured and sealed.

( 3 ) THE prosecution in support of its case has examined Public Witness 3 Ranvir Singh, ASI, Public Witness 4 Banarsi Dass S. I. and Public Witness 6 Yad Ram Head Constable in respect of the arrest and recovery. Vijay Malik SHO was neither cited as a witness nor was he examined. The aforesaid set of witnesses have testified that this Charas was recovered from the person of the appellant and in respect of the fact as to why independent public witnesses were not associated, they claimed that despite their efforts they did not receive any co-operation. They however, admitted that Navrang Guest House in which the appellant was putting up and the other neighbouring Guest House were open at that time but they made no efforts to call any one from these Guest Houses at the time of recovery. This, as argued by Mr. Sharma, by itself renders the seizure doubtful. But in this case Mr. Sharma is facing a difficulty inasmuch as the seizure by the appellant is not denied. He has, however, a different Story to offer in respect of the circumstances leading to the seizure. He admits that the seizure was made from his room at Navrang Guest House but maintains that the packet was left in his room by one Mr. Bernard, a French national and that he was not aware as to what it contained. He further pleaded that he is not an addict. The admitted position, therefore, is that recovery has been made of a polythene bag which contained something from the person of the appellant.

( 4 ) THE main question that arises for consideration is as to what was recovered. The prosecution asserts that it was Charas. The accused maintains that he does not know what it was. The report of CFSL marked Ex. Public Witness 4/b received from N. K. Parshad is that the sample sent to him for analysis gave positive test for charas. It cannot, therefore be denied that the sample which was sent to the CFSL was of charas. That. however, does not solve the problem. The question, therefore, that requires consideration is whether the sample seized from the appellant was actually sent to CFSL or not ?

( 5 ) IN this Connection I would like to refer to section 55ofthendps Act 1985 which is as under :

"police TO TAKE CHARGE OF ARTICLES SEIZED AND DELIVERED: An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer wh

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