JUDGMENT 1. - This revision petition has been preferred against the judgment of Sessions Judge, Sikar dated 19.8.78, upholding the conviction and sentence of the petitioner under Section 9 of the Opium Act. The petitioner was sentenced to I year rigorous imprisonment and fine of Rs. 500/-, in default of payment of fine he will undergo 6 month rigorous imprisonment by the learned Munsif and Judicial Magistrate, Fatehpur. In appeal the learned Sessions Judge, maintained the sentence and fine but in default instead of six month rigorous imprisonment he made the order for three months rigorous imprisonment. Against this judgment the present revision petition has been filed. 2. According to the prosecution case the Excise Inspector, on 30th April, 1954, went to Gram Naglia-ka-bas, on the information regarding excisable articles He reached that village at 4.00 p.m. and on private information he raided the house of the petitioner Jesa Ram, and inside the jhupa of the petitioner he seized 3 kg. and 14 chhatak opium in thaila and ' seer 10 chhatak, opium milk in a plastic thali. Both opium and opium milk was seized and sealed at the spot the accused petitioner was arrested. The Excise Inspector, sent the report Ex. P.5, alongwith the accused and the recovered opium and opium milk to S.H.O. Ramgarh. The S.H O. then took sample of opium and opium milk from the sealed a packet sent by the Excise Inspector, in presence of Assistant Collector and Magistrate (Under Training), Sikar and sent to the public analysist for examination. The report of the analysist is Ex. P.7 and according to this report the sample was of opium. The accused was challenged. The learned Magistrate, after recording the evidence and hearing both the parties found the accused guilty under Section 9 of the Rajasthan Opium Act, and sentenced as mentioned above. An appeal was preferred by the petitioner but was unsuccessful. 3. The learned counsel for the petitioner has argued that in this case the prosecution has failed to prove that the seal which was affixed on the thaila and the bags at the time of the recovery from the house of the petitioner remained intact when the seal was opened before the Magistrate (under training) and also the seal which was fixed on the sample taken before the Magistrate remained intact when it reached to the public analysis for the examination. The arguments is that it was for the prosecution to prove and established beyond reasonable doubt that the seal a fixed on the articles at the time of recovery remained intact. It was also to he established that the seal or. the sample w s not tempered with and remained intact when it reached to the public analyst for examination. 4. I have gone through the record of this case. From the statement of the Excise Inspector, Shri Krishna, P.W. 7 and from the endorsement on the back of Ex. P. 6, given by the Assistant Collector and Magistrate (U.T.), Sikar, and also from the judgment of the learned Magistrate, it is clear that the opium and opium milk which was sealed at the house of the accused at the time of recovery, and that seal was broken before the Assistant Collector and the Magistrate (U.T.) for taking sample by the S.H.O. for sending it to public analyst for chemical examination Thus, it is clear that the seal which was originally fixed by Excise Inspector, was broken. It is not on the record and there is no proof to this effect that this seal which was affixed by the Excise Inspector, remained intact at the time when it was broken by the Assistant Collector and Magistrate (U.T.) when the sample was taken by the S.H.O. It should be clearly proved and established by the prosecution that the original sealed remained intact and was not tempered when it was broken in presence of Assistant Collector and Magistrate (U.T.), Sikar, it creates doubt in the case. 5. When the sample was taken and fresh seal was affixed on the sample as well as on the remaining articles, it should have been established by the prosecution that the seals remained intact. It must be established that the seal which was affixed on the sample was the same seal on the sample when it reached public analyst but there is no proof on the record Actually when the opium and opium milk was sealed and its seizure memo was prepared by the Excise Inspector, it was his duty to affix the seal on the sample and on the recovery memo. Apart from this when the original seal was opened by the Assistant Collector and Magistrate (U.T.), Sikar, it was the duty of the Magistrate to record the sample of the seal on the endorsement note on the back of Ex P. 6. It should be made clear that this particular seal was affixed on the sample and I sample of seal should have been on the endorsement note Ex, P. 6 but there is the no such sample of seal. Thus, there is no proof on the record as to which seal was affixed by the Excise Inspector, when opium and opium or ilk was recovered from the possession of the accused petitioner. Similarly, there is no proof that which seal was affixed by the Assistant Collector and Magistrate (U.T.), Sikar, on the sample when it was taken at the request of the S.H.O. The sample of seal affixed on the sample must have been sent to the public analysis so that he could verify that the seal was intact when he received the sample. So this is a great lacuna in the prosecution case.In Ratan Lal v. The State R.L.W. 1986 page 451 which is a Double Bench case and decision of this High Court, it has been observed as under:- "No doubt the evidence that the sample of the incriminating articles reached the hands of the chemical examiner in the same condition in which it was taken by the police officer is formal, yet it cannot be dispensed with and in the absence of such an evidence it is open to take a plea that the chemical examiner report of the public analyst cannot be read against him." In this case the case of Ukha Kolhe v. The State of Maharashtra A.I.R. 1963 S.C. Page 1531 has been followed. The Hon'ble S.C. has laid down that it was incumbent on the prosecution to prove that the sells put on the sample remained intact till the sample reached the hands of the chemical examiner. 6. The law has mentioned above laid down by this court and by the Hon'ble Supreme Court applies to the present case. In the instant case it has no: been proved and established in evidence that the seal affixed on the sample sea to public analyst remained intact. No doubt, the public analyst in his report Ex. 6. The law has mentioned above laid down by this court and by the Hon'ble Supreme Court applies to the present case. In the instant case it has no: been proved and established in evidence that the seal affixed on the sample sea to public analyst remained intact. No doubt, the public analyst in his report Ex. P. 7, has mentioned that seals condition was intact and unbreakable. This note does not establish that the seal was the one which was put by the Assistant Collector and Magistrate (U.T.) Sikar, when the sample was taken. No doubt the evidence regarding the seal may be a formal one but still it has to be prove in criminal cases that the seal was intact. This burden was on the prosecution to discharge. The prosecution has failed to discharge this burden. The proof of this burden cannot be dispensed with and in the absence of this proof it is certainly open to the accused to take the pleas that the report of chemical examiner cannot be read against him. Certainly, this is a defect in the prosecution case. The report of the public analyst Ex. P. 7 cannot be read in evidence against the accused on account of this defect as mentioned above. I, therefore, hold that the prosecution has failed to prove that the articles recovered from the possession of the accused petitioner was opium. 7. The next arguments on behalf of the petitioner was that the prosecution has failed to prove that the jhupa from where opium was recovered was in exclusive possession of the accused petitioner. The two motbirs in whose presence opium was recovered do not say that the house or jhupa from where the opium was recovered in exclusive possession of the accused. P.W. 1, Likhma, has stated in his examination in chief that accused his father, mother and his brother lives in the same house in which the accused Jaisa lives. It was argued by the learned Public Prosecutor, that the inspector Shri Krishna, and Mangaj Singh, P.W. 4, have stated that the house from where the opium was recovered was in exclusively possession of the accused. I have read the statements of the witnesses Excise Inspector, Shri Krishna, and witness Mangaj Singh P.W. 4, they have no personal knowledge in this regard. I have read the statements of the witnesses Excise Inspector, Shri Krishna, and witness Mangaj Singh P.W. 4, they have no personal knowledge in this regard. The motibir who are resident of the same village do not help the prosecution so the arguments of the learned counsel for the petitioner has substance. From the evidence on the record it has not been established that the place or jhupa from where the opium was recovered was in exclusive possession of the accused petitioner. 8. In view of my above discussions I am of the view, that the conviction of the accused petitioner under Section 9 of the Rajasthan Opium Act, is bad and cannot be maintained. 9. The revision petition of petitioner Jaisa Ram, is, therefore, allowed. His conviction and sentence under Section 9 of the Rajasthan Opium Act, are set-aside and he is acquitted from the aforesaid charge. He is on bail he need not to surrender and his bail bonds are cancelled.Revision allowed. *******