The failure to prove the chain of custody of samples led to the acquittal of the appellants.

JUDGMENT :

Mukta Gupta, J.

1. In the present appeal, the four appellants herein, namely, Harikala, Ramkali, Dhan Sheri and Seeta challenge their conviction for offence punishable under Section 20(b)(ii)(C) NDPS Act vide the impugned judgment dated 31st March, 2018 and the order on sentence dated 3rd April, 2018 directing them to undergo rigorous imprisonment for a period of 10 years and to deposit a fine of Rs.1 lakh each in default whereof to undergo further six months simple imprisonment.

2. The four appellants and the two other co-accused Man Kumari and Seeta W/o Ramesh were also charged for offence punishable under Section 29 NDPS Act for which they have all been acquitted and no leave to appeal has been filed by the State on that count.

3. Learned counsel for the appellant contends that the appellants are liable to be acquitted for non-compliance of the mandatory provision of the NDPS Act i.e. Section 50. It is claimed that even if it was a case of chance recovery from Harikala, however the other accused were searched on suspicion of possession of drugs, thus notice under Section 50 was required to be given to them as mandated by law. There was a delay of 10 days in sending the samples to the FSL. The contraband was seized on 28th July, 2012, however the same was sent to FSL only on 7th August, 2012. HC Yad Ram/ PW-7 who took the samples from the malkhana to the FSL was also a part of the raiding team and witness to recovery of the alleged contraband from the appellants. From the testimony of SI Neeraj/ PW-8 it is evident that the chain of custody of the samples which was to be kept in safe custody has not been proved by the prosecution. SI Neeraj stated that he took the parcels from the malkhana vide RC No. 67/21/12 to the FSL CBI on 2nd August, 2021, however since the FSL did not accept the same on the said date, he returned the same to the MHCM and then again took the same back on 3rd August, 2012 and deposited the same with the FSL. This version of SI Neeraj is not fortified by the malkhana register as there is no entry of depositing back the samples on 2nd August, 2012 and again taking them to be deposited with the FSL on 7th August, 2012. Acknowledgement of case acceptance dated 7th August, 2012 records that only 4 sealed cloth parcels were received. The memo No. 1793-96 is dated 7th August, 2012 and exhibited vide Ex.PW-11/B. The prosecution having failed to show the safe custody of the alleged contraband, the appellants are entitled to be acquitted on this ground itself.

4. It is further contended that the FSL form was not sent along with the samples, as there is no mention of the FSL form in road certificate dated 7th August, 2012. There is no material on record to show that the seal was handed-over to an independent witness. Rather the evidence shows that the investigating officer kept the seal to himself and also remained in possession of the alleged contraband. There are material contradiction between the prosecution witnesses including Ct. Avneesh/ PW-4 stating that no recovery was made from the accused persons in his presence and the said witness also does not speak about the presence of public witnesses at the spot. Thus, in view of the non-compliance of the mandatory provisions of the NDPS Act and the samples having been not kept in safe custody, the appellants are entitled to be acquitted.

5. Countering the arguments of learned counsel for the appellants, learned APP for the State submits that minor variations in the statement of the prosecution witnesses which have occurred in the testimony do not go to the root of the matter and affect the case of the prosecution. There is no material or significant contradiction between the testimonies of the witnesses. Since in the present case, recovery was made as a chance recovery on suspicion, no notice under Section 50 of the NDPS Act was required to be given as has been held by the Hon’ble Supreme Court.

6. Learned APP further contends that the samples were seized on t