This appeal arises out of judgment and order dated 19.2.97 as passed by the Sessions Judge, Kamrup, Guwahati in Sessions Case No.95(K)94 thereby holding the appellant guilty of offence punishable under section 21 of the Narcotic Drugs and Psychotrophic Substances Act, 1985, for short 'the NDPS Act,' and sentencing him to undergo RI for 10 years with fine of Rs. 1,00,000/- or in default in payment of fine to suffer 6 months RI.

2. Prosecution case stated in brief was that on 3rd June, 1994 Inspector Alauddin Ahmed of the Excise Department was on his usual rounds of checking at the Railway Station, Guwahati. While checking the passengers at the Railway over bridge, he stopped accused appellant with a suitcase in his hand as his movement arose suspicion. He was checked and searched which revealed that he was carrying 5 packets containing total quantity of 1.150 Kg of heroin which was seized as per the Seizure List Ext 1. The matter was reported to his immediate superior. The accused was produced along with the seized articles before the Chief Judicial Magistrate. It is stated that sample weighing 5 gms each were collected in presence of the Magistrate and sent to the State Forensic Science Laboratory for chemical examination. The report received is Ext II. The result was positive article of heroin. On completion of investigation the accused was charged and tried for offence punishable under section 21 of the NDPS Act. The first question as rightly posed by the trial Court is, whether the articles seized was heroin, a manufactured drug as defined in clause (xi) of section 2 of the NDPS Act. The trial Court placing reliance on evidence of PWs 5, 6 and 7 has held that the articles seized from the possession was heroin.

3. Learned counsel appearing for the appellant has assailed the findings mainly on the grounds that there was no sealing of the articles when it was actually seized and there is no evidence adduced by the prosecution to show that the article seized from the possession of the accused remained intact till it was produced before the Magistrate and, thereafter sent t6 and received by the State Forensic Science Laboratory. There is not a slightest whisper in the evidence of PW 5 that the sample as received by him was intact and the seals thereon tally with any specimen seal impression separately sent to the Forensic Science Laboratory.

4. Mere reading of the evidence of PW 6 and PW 7 would go to show that they are referring to the transaction on 6.6.94 whereas the prosecution case that accused was checked on 3.6.94 around 7 AM at the overbridge of the Railway platform and Guwahati Railway Station. It was on the 4th day when the article was produced before the Chief Judicial Magistrate. There is absolutely no evidence as regards officer who retained the custody of the seized article and in what condition it was kept by him. It was for the prosecution to have proved by adducing affirmative evidence that the articles as seized on the 3rd morning remained intact and untampered till it was produced before the Magistrate on 6.6.94, but no such evidence is forthcoming. There is not a word in the evidence of the Inspector, PW 1 as to what prevented him from sealing the seized article immediately on its seizure. If it could not be done at the overbridge at least it could well have been done and ought to have been done in the office or the Railway Police Station immediately after the seizure. Keeping the seized articles for 3/4 days and thereafter producing the same before the Magistrate hardly inspire any confidence. PW 6 the Deputy Superintendent of Excise in his evidence has stated that a sealed VIP suitcase was produced by the Inspector, PW 1 before the Chief Judicial Magistrate on 6.6.94 and he was called by the Magistrate to take photograph. What transpired thereafter is a mere rehersal of a farce, it is stated by the PW 6 that the box was opened in presence of the Magistrate who has not been examined by the prosecution and 5 sam

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