Breach of statutory safeguards and non-adherence to guidelines for dispatching samples to the laboratory adversely affects the fairness of the investigation and the authenticity of the evidence.

1. Since objections have not been filed by respondent and the appellant has carved out good grounds for grant of leave and condonation of 104 days delay, the motions are allowed. The appeal, to be registered and numbered, is taken on Board with the consent of learned counsel for the parties.

Acquittal Appeal

Heard learned Dy. AG for the appellant and Mr. Raghu Mehta for the respondent.

2. Respondent was tried before learned Sessions Judge Kathua for charge under Section 8/21, NDPS Act. Briefly put, the prosecution case against the respondent was that on 26-7-2005 at about 5.30 p.m. respondent, on noticing a police patrol party at Salper Morh Nagri Kathua, tried to escape. After a chase he was apprehended. Respondent was found carrying a polythene bag in his hand, which on opening yielded 360 capsules of 'PROXY-VON'. Case under FIR No. 194/2005 for offence under Section 8/20/21, NDPS Act was registered against him at Police Station Kathua. Police embarked upon an investigation. The consignment of capsules was seized and a sample of 10 capsules was taken out of the seized drugs for chemical analysis. The investigation culminated in filing of charge-sheet against the respondent under Section 8/21, NDPS Act. Based on the material collected during investigation, charges were framed against the respondent for offence under Section 8/21 NDPS Act to which he pleaded not guilty and claimed to be tried. The trial ended in acquittal of respondent as aforesaid.

3. We have been taken through the impugned judgment. The trial Court found that the sample of seized capsules had been sent for chemical analysis on 5-8-2005 and it was received in FSL on 10-8-2005. It also found that the occurrence was of 26-7-2005 and the sample had been reseated on 3-8-2005. The trial Court observed that it was not known where the sample was lying for such a long time and under these circumstances the entire prosecution case shades into suspicion and the chances of tampering could not be ruled out. It appears that the standing instructions issued by the Narcotics Control Bureau New Delhi that the samples must be dispatched to the laboratory within 72 hours of seizure to avoid any legal objection have not been adhered to. Such instructions are in the nature of guidelines ensuring a fair procedure to be adopted during investigation and non-adherence thereto would put a question mark on fairness of investigation. NDPS Act contains stringent provisions and provides for harsh punishment to curb the menace of drug trafficking. It contains statutory safeguards to ensure fair investigation. Breach of such safeguards goes to the root of search, recovery and seizure of Narcotics or Psychotropic substances. Instructions issued by NCB are in furtherance of such statutory safeguards and breach thereof adversely affects fairness of investigation. In the instant case, there is no explanation as to where the sample was kept after sealing and resealing. Learned Sessions Judge has observed that there was no evidence on record to demonstrate that it was kept in safe custody from the date of its sealing till its receipt in FSL. It found that the seal used in sealing of the sample had not been deposited in the Malkhana. It also found that there was no evidence on record to establish that the sample had been deposited in Malkhana till its dispatch to FSL. Keeping in view these glaring defects, learned Sessions Judge found that the link evidence was incomplete. After going through the impugned judgment, we have no doubt in our minds that the evidence brought on record by prosecution during trial failed to establish that the sample subjected to chemical analysis at FSL which was opined to contain Dextropropoxyphene Hydrochloride--a narcotic agent was a representative sample of the seized capsules marked 'PROXY-VON'. This is apart from the fact that the circumstances attending upon the seizure of the capsules alleged to be contraband are highly doubtful as indicated by learned Ses