JUDGMENT It is the prosecution case that opium was seized on 21.9.85 as per seizure memo Ex.P.3. Seal was broken and two samples of 30 gms. each were taken on 23.11.85 as per memo Ex. P 5, what prevented the police from taking these samples in presence of the accused? More so when the seals of the attache were to be broken As per Ex.P.3, two samples were already taken on 21.9.85. Then what was the need for again taking the same on 23.11.85? If it was to be produced in the Court, as mentioned in Ex.P.5, why were the samples so taken were not produced in the Court? The witnesses Bhavani Shankar PW-3 and Ram gopal PW.4, in whose presence the seals were broken (as per Ex.P.5), do not at all support the prosecution on this point. The samples so taken were not even shown to these witnesses, so much so that S.O. Tiwari PW.7 does not say a word in his evidence about these samples taken on 23.11.85, although he refers to Ex. P .5, but the samples were neither shown nor exhibited in the Court. It is significant to note that the key of the attache was not siezed by the S.O. PW.4, as admitted by him. The question that arises for consideration now could it be opened on 23.11.85 in absence of the accused? In face of the prosecution case that it was locked and sealed on 21.9.85. The sample was taken out in the first place on 21.9.85 as per memo Ex.P.3, and as also deposed to by the S.O. PW.7. Having taken out the samples on 21. 9.85, it was sent for analysis on 4.10.85, for all these 14 days what prevented the Police Officer from sending the samples to Neemuch which hardly at a distance of 60 kms. There is no explanation for this belated despatch of the sample. Although this statement is made by the witness after referring to the case diary. The constable who took the sample from police station, Shamgarh, to the Medical Asstt at Ncemuch, has not been examined by the prosecution. But going through the statement of the medical assistant, PW.5, it would be clear that he had received the sample on 10.10.85, As is also evident from his report dtd.27.10.85 EX.P.2. The constable who took the sample from police station, Shamgarh, to the Medical Asstt at Ncemuch, has not been examined by the prosecution. But going through the statement of the medical assistant, PW.5, it would be clear that he had received the sample on 10.10.85, As is also evident from his report dtd.27.10.85 EX.P.2. A constable deputed on duty for delivering sample at a place hardly at a distance of 60 kms. from the Police Station, takes 7 days to reach Neemuch and there is no explanation forthwith coming from the prosecution side nor the constable himself examined by the prosecution. The fact that the samples were again taken that that too in absence of the accused after breaking open of the seal of the attache on 23.11.85, two months after its seizure for the above purpose as mentioned in the Ex.P.5, for producing the sample in the Court yet the samples are not produced nor the independent witness supported the prosecution case on the point makes the samples very suspicious and a matter of investigation for the police. Shri Chouhan, learned Dy. G. A. referring to para 10 of the evidence of PW.7 pointed out that article 'B' is sample packet of opium exhibited before the Court. If this was the sample taken on 23.11.85, how can it that it could be received by the medical assistant on 10.10.85. This sample Article' B' must relate to the seizure memo Ex.P.3 prepared earlier on 23.9.85. There is no trace of the samples taken on 23.11.85 vide memo EX.P.5. The S.O. whose duty was to produce the sample in the Court, should have either produced the same or some explanation for it<; non-production. It is for this reason that the Supreme Court in AIR 1980 SC 1314 (State of Rajsthan v. Daulatram) in a case of opium, has pointed out that it is the duty of the prosecution to prove that while the sample remains in their custody, the sealed samples were not tampered with, and this fact has to be proved affirmatively. This decision was cited by the learned Judge of the Appellate Court, who merely on the basis of the chemical assistant, had found the seals tallied on both the packets, came to the conclusion that there was no possibility of any tampering. This decision was cited by the learned Judge of the Appellate Court, who merely on the basis of the chemical assistant, had found the seals tallied on both the packets, came to the conclusion that there was no possibility of any tampering. The infirmities, as pointed out above, have not been noticed by the learned Judge, much less taken into consideration. In this State of affair, it cannot be said that the samples of opium, as taken on two different dates on 21.9.85 and 23.11.85, not in presence of the accused and the independent witness not supporting the prosecution and having taken it out in the abode object of producing it in the Court, yet not producing the same in the Court are factors which cannot be lightly brushed aside. The learned Judge has ignored all these infirmities solely on the ground that the chemical assistant found the seal intact in comparison with the specimen seal impression. Wherefrom he got the specimen seal impression when the S.O.P.S. Shamgarh PW.7 does not in his evidence even remotely hint that such specimen seal impression was sent to the opium Alkaloid Factory at Neemuch. In these circumstances the conclusion arrived at by the Appellate Court that the principles laid down in Daulatram's case (supra) is not attracted, is wholly erroneous. Daulatram's case (supra) applies on all fours. In these circumstances it cannot be said that the prosecution has proved beyond reasonable doubt that the opium seized was the opium which was sent to the chemical assistant of opium Factory at Neemuch. AIR 1980 SC 1314 followed. Revision allowed.