Non-compliance with procedural requirements could only vitiate the prosecution if it resulted in prejudice or failure of justice.

As directed by the Assistant Commissioner of Police, after getting source information that in Room No. 306 of Lucia Hotel near K.S.R.T.C. Bus Stand at Ernakulam narcotic drugs and psychotropic substances are being illegally dealt with, P.W. 16, Circle Inspector of Police, along with P.W. 15, Sub Inspector, and party visited the room at about 3.00 p.m. on 21-4-1989. Door was found bolted from inside. On knocking the door, the third accused opened it from inside. First accused was sitting on a cot with MO 1 plastic container having 1.25 kgs. of Hashish inside near him. Second accused was standing near him. It was seized and the three accused arrested and samples taken in two plastic containers. Ext. P 10 report of analysis revealed that the samples were charas. Investigation revealed that the three accused were dealers in narcotic drugs and psychotropic substances and accused 2 and 3 conspired with the first accused and abetted him for its sale to them. First accused was, therefore, prosecuted for violation of S. 8(c) and accused 2 and 3 for violation of S. 8(c) read with S. 29 of the Narcotic Drugs and Psychotropic Substances Act (the Act) punishable u/S. 20 thereof. Sessions Judge convicted and sentenced all the three accused. Criminal Appeals Nos. 371, 298 and 301 were filed respectively by accused 1, 2 and 3.

2. Though the prosecution examined sixteen witnesses, all except PWs. 2, 7, 10 to 13, 15 and 16 turned hostile. But, even from the evidence of the hostile witnesses, there are materials in support of the prosecution case. The defence of the appellants is total denial of their involvement. They would say that they were arrested on a previous day and not from the hotel room. In support of that contention, they examined DW1, whose evidence appears to be not worth even the paper on which it is written.

3. Prosecution succeeded in establishing beyond doubt that all the three accused (they alone) were inside the bolted room with MO1 containing 1.25 kgs. of charas inside on a cot and the first accused was seated nearby. Second accused was standing near him. Ext. P1 is the seizure mahazar prepared by PW. 16 and attested by PW 15 and others. PW 12 is a police constable who was along with them. As directed by PW 16, he brought PW 2 and a weighing balance and plastic covers. All these witnesses gave evidence to these facts and said that PW 16 took samples in two plastic covers (MO 2 series) and sealed them then and there. The evidence of PWs. 15 and 16 further shows that MO 1 and MO 2 series were kept in safe custody in the police station and then produced before court in sealed container itself. PW 7 is the Thondi Clerk in the Magistrate's Court. His evidence shows that when produced before court, MO 2 series were sealed and MO 1 was only tightly closed. He said that he kept them in safe custody and MO 2 series were sent for analysis in sealed condition. The evidence of PW 11, Assistant Director of Forensic Science Laboratory, and Ext. P10 report submitted by him show that the samples were received with seal intact though there was slight tearing in one outer cover.

4. I mentioned these facts only because MO 2 series are now in an open unsealed condition and an argument came that the samples cannot be accepted as taken from MO 1. In support of that contention, the defence relied on Ext. C1 remand report and the omission of P.W. 16 to mention about the sampling in Ext. P1 seizure mahazar. I do agree that PW 16 was a little irresponsible in preparing Exts. P1 and C1. He ought to have mentioned about the sampling in Ext. P1. So also, the wording of Ext. C1 ought to have been more careful. It is capable of an interpretation that sampling was not done when the remand report was prepared. But, in view of the clear disinterested evidence that came from PWs. 2, 12, 15 and 16, supported by the depositions of PWs. 7 and 11 and Ext. P-10, I accept the evidence that samples were taken and sealed then and there and these samples th