Honble CALLA, J.—This Criminal Appeal u/s 374 (2) Cr.P.C. is directed against the judgment and order passed by Additional District & Sessions Judge, Rajsamand in Sessions Case No. 12/87 on 11.9.1990 whereby the appellants were convicted u/s 8/17 of Narcotic Drugs & Psychotropic Substances Act, 1985 and sentenced to 10 years Rigorous Imprisonment and a fine of Rs. 1,25,000/-(Rs. One Lac, Twenty Five Thousand) each and in default to further undergo 2 years, 6 months R.I. (2) According to the case of the prosecution, Inspector of Chittorgarh namely; Shri Madanlal Meena had instructed the Sub- Inspector, Shri Prabhat Kumar Rai of Central Narcotic Bureau, Jodhpur on 5.8.1986 that he may reach Matrikundaya Road while checking vehicles from Jodhpur. Accordingly, Sub-Inspector, P.K. Rai proceeded with the checking party. While checking the vehicles at 11.45 a.m. on 6.8.86 on the Ghati near Village Selaguda a Motorcycle No. RJE 1948 was noticed while coming from Ameth. Two persons were found on this motorcycle who are the accused-appellants and in a tin container at the back of this motor cycle two bags were found containing substance which gave smell and taste like Opium as per the Sub-Inspector and members of the checking party in presence of the Motbirs. One bag was containing 10.400 Kg. and the other bag was containing 3.300 Kg. Opium. For the Chemical Examination 25 gms. of the substance was taken out from each of the two bags separately and the same were sealed and the rest of the Opium was also sealed. (3) Accused-appellants were arrested vide Exh. P-2 and Exh. P-3, Motorcycle was seized vide Exh. P-4 and the site map Exh.P-5 was prepared with regard to the spot where the Opium was recovered. Exh.P-6 is the sample of the seal. Sub-Inspector, P.K. Rai addressed the FIR vide Exh. P-7 of this incident to the Superintendent, , Narcotic Preventive Cell, Jodhpur and also presented the papers which were prepared on the spot. On this basis case No 2/86 was registered and during the course of investigation the statements were recorded by Inspector Shri Madan Lal Meena and the samples which were taken out from the bags were sent for the chemical examination to Neemach Laboratory. Exh. P-8 is the receipt in token of the delivery of the sample. Sample was examined and the report is Exh. P-9. Exh. P-8 is the receipt in token of the delivery of the sample. Sample was examined and the report is Exh. P-9. According to this report the sample contains 12% Morphin and, therefore, it was Opium. It is the case of the prosecution that the sample was first sent on 12.8.86 which was returned by the Laboratory vide Exh. P-10 and the sample was sent back. Ultimately, the charge-sheet was filed in the Court and the trial was held by Additional District & Sessions Judge, Rajsamand. (4) In all 10 witnesses were examined by the prosecution and 11 documents were exhibited. The learned Additional District & Sessions Judge, Rajsamand convicted both the appellants u/s 8/17 of the NDPS Act and sentenced each of them to 10 years R.I. and a fine of Rs. 1,25,000/- each and in default of which each of them is to further undergo R.I. for a period of 2 — years. (5) Apart from the grounds based on various provisions as contained in Sections 42,57,55,50 & 54 of the NDPS Act and that the Seizure was not reported to the Superior Officers within the prescribed period of 48 hours and that Shri P.K. Rai was not authorised to investigate and Shri M.L. Meena did not make any effective investigation, and no investigation whatsoever about the ownership of Motorcycle although according to prosecution itself none of the two appellants are the registered owner of the Motorcycle in question; it was also submitted by Shri Dungar Singh on behalf of the appellants that in this case the conviction of the appellants cannot be sustained for the simple reason that the manner in which the sample was sent for chemical examination and the return thereof read with contents of the chemical report Exh. P-9 which is not at all compatible with the contents of the basic document Exh. P-1 which was prepared at the time of the investigation, renders the whole prosecution case to be suspicious. In all such matters where the criminal liability entails a minimum sentence of 10 years and fine of Rs. 1,00,000/- (Rs. One Lac), the prescribed procedure has to be followed with all rigours and strictness. Shri Dungar Singh submits that the appeal may be decided on this aforesaid point alone. In all such matters where the criminal liability entails a minimum sentence of 10 years and fine of Rs. 1,00,000/- (Rs. One Lac), the prescribed procedure has to be followed with all rigours and strictness. Shri Dungar Singh submits that the appeal may be decided on this aforesaid point alone. In this view of the matter, without dealing with the other points, I straightway proceed to adjudicate upon this point raised and stressed by Shri Dungar Singh. (6) It is not in dispute that the recovery was from two separate bags, one bag containing 10.400 Kg. and other containing 3.300 Kg. P.W.1, P.K. Rai, Sub-Inspector says that the samples of 25 gms. from each of the two bags were taken. (6) It is not in dispute that the recovery was from two separate bags, one bag containing 10.400 Kg. and other containing 3.300 Kg. P.W.1, P.K. Rai, Sub-Inspector says that the samples of 25 gms. from each of the two bags were taken. The relevant portion of his statement is to the following effect: — ^^,d FkSyh dk rksy 10 fdyks 400 xzke vkSj nwljh FkSyh dk otu 3 fdyks 300 xzke FkkA nksuksa FkSfy;ksa esa ls 25&25 xzke vQhe dks crkSj uewus ds geus vyx fudkykA mudks [kkyh flxjsV ds [kksdks esa can fd;k x;kA fQj mu ij lQsn dkxt dh fpV yxk;hA (7) P.W.-2 Mohammad Rehan, Constable in the Narcotics Department, Jodhpur has stated as under: — ^^geus iPphl xzke inkFkZ ,d FkSyh esa ls vkSj iPphl xzke inkFkZ nwljh FkSyh esa ls fudkykA fQj nksuks uewuksa dks feDlM dj fn;kA vkSj fefJr djus ds ckn budks okil iPphl&iPphl xzke vyx&vyx dj fn;k vkSj bl rjg ls iPphl&iPphl xzke ds nks fefJr uewus fudkysA uewuksa dks geus flxjsV ds [kkyh [kksdksa esa Mkyk] mu ij lQsn dkxy yisVk vkSj mu ij Mksjk cka/kdj Mksjs dks lhy fd;kA (8) P.W.-3, Kishan Gopal, Constable in the Narcotics Department, Jodhpur has stated as under: — ^^iPphl&iPphl xzke ds fefJr lsEiy fudkysA vkSj mu lSEiYl dks flxjsV ds [kks[ks essa Mkydj lhy can fd;kA (9) P.W.-7, Lal Singh, Constable in the Narcotics Department, Jodhpur has stated as under: — ^^mlesa ls rhl&rhl xzke ds nks lsEiy fudkys vkSj ekSds ij lhy fpV fd;kA (10) The sealed packets of the samples were handed over by P.W.I, Shri Prabhat Kumar Rai, Sub-Inspector to P.W.10, Shri Madan Lal Meena, Inspector that is the Investigation Officer and Shri M.L. Meena P.W.10 has stated that the sealed sample was given to Constable, Bhanwar Singh on 12.8.86 for being taken to Neemach Factory for chemical examination and according to this witness either the factory was closed or there was something wrong and, therefore, the sample was returned. The sample was again placed in the double lock, he does not disclose any reason as to why the sample was returned from the factory and he says that Shri Bhanwar Singh may have told the reason but he does not know and that it was on 21-8-86 that he sent the sample again in sealed condition with Lal Singh and the receipt dated 25.8.86 brought by Lal Singh is Exh. P-8. He also states that while sending the sample the forwarding letter alongwith the sample of the seal had been sent. In cross-examination this witness has stated that it was wrong to suggest that Bhanwar Singh had come on the next day and had brought the letter from the factory in which it was mentioned that sample and papers were not with complete formalities and that he had believed the verbal statement of Bhanwar Singh that the papers and the sample were not in proper condition. This witness has also admitted in cross-examination that the office of the District Opium Officer and his office were in the same premises and the Malkhana virtually remains in the custody of the District Opium Officer. Thus, it is clear that the sealed packet containing sample was given to P.W.I, Bhanwar Singh to be taken for chemical examination to Neemach vide forwarding letter Exh. P.10, dated 12-8-86 which was issued from Narcotics Central Bureau, Jodhpur and this document bears the signatures of Bhanwar Singh, P.W.9 on 12.8.86 in token of the receipt of the sample. This sample had been given to Shri Bhanwar Singh at Chittor and he also says that the sample was given to him at about 8- 9 a.m. by Shri Madan Lal Meena, he left for Neemach by bus, reached Neemach at about 10-11 a.m. and came back to Chittor from Neemach at about 5-6 p.m. and he further states that at that time his posting was at Jodhpur and he was posted on deputation for 3 months at Chittor. The document Exh. P-10 does not bear any submission note by Shri Bhanwar Singh with regard to the return of the sample, but there is a note by Shri M.L. Meena, P.W.10 which bears no date and according to this endorsement, Bhanwar Singh had returned the sample, the same was placed in the double lock and it was given to Shri Lal Singh for being taken to Laboratory at Neemach on 21-8-86 and Lal Singh had also brought the receipt in token of the delivery of this sample at the Laboratory, however, this undated endorsement by M.L. Meena does not contain the date of the return of the sample by Bhanwar Singh for the letter dated 21-8-86 has been produced. Exh. Exh. P-8 is the receipt from Neemach Laboratory with regard to receiving the sample on 25-8-86 with reference to letter No. XV (7)- 2/Jodhpur/86/649 dated 21-8-86, but this letter dated 21-8-86 has not been produced. There is no explanation as to why the sample which was sent on 21-8-86 to Neemach was delivered at the Laboratory on 25-8-86 as per the acknowledgement Exh. P-8 dated 25-8-86. Lal Singh, P.W.7 admits that the sealed packet was given by him at Neemach to Babu (Clerk) but such clerk has not been produced in evidence. The report Exh. P-9, given by the Laboratory at Item No. 4 gives the description of the sample as under: — "(4). Description of the sample: — The sample was kept in the Polythene bag than in a Cigarette Carton, wrapped with paper bearing details of the case, signatures etc., tied with thread and sealed, seals were found intact and tallied with the Facsimile of the seal forwarded." (11) Shri Dungar Singh submits that it is, thus, clear that the description of the sample as has been mentioned in the report Exh. P-9 is not at all compatible with its description as given by P.W.I himself in his statement where there is no reference to any Polythene Bag and there is a material contradiction with regard to the taking of the samples in the statement of P.W.1 , P.W.2, P.W.3 & P.W.7, who are all employees of the Narcotics Department. M.L. Meena, P.W.10 himself has not been able to explain for P.W.I, Bhanwar Singh nor Bhanwar Singh has been able to explain as to for what reason the sample was returned by the Laboratory on 12-8-86, how the letter which bears the date of 12.8.86 and which was issued at Jodhpur on 12-8-86, became available at Chittor at about 8-9 a.m. in the hands of Bhanwar Singh and it is also not clear as to exactly on what date Bhanwar Singh gave the sample and as to where the sample was between 12-8-86 to 21.8.86. As per Shri M.L. Meena himself the Malkhana is in the custody of the District Opium Officer and the District Opium Officer has not been produced to show that the sample was deposited back in the Malkhana on 12-8- 86, the letter dated 21-8-86 has also not been produced with which the sample was sent back to the Laboratory with Lal Singh and, therefore, according to Shri Dungar Singh the whole matter becomes suspicious about the genuineness of the sample as taken and it was used for analysis and in these circumstances the conviction of the appellants cannot be sustained. Shri Dungar Singh has placed strong reliance on the Supreme Court decision reported in State of Rajasthan vs. Daulat Ram (1). Besides this he also placed reliance on Rijumal Vs. State of Raj. (2), Mainuddin Kasim Mulla Vs. The State of Maharashtra (3) and Jabarsingh vs. State of Rajasthan (4). (12) The learned Additional Public Prosecutors on the other hand have submitted that the investigation was conducted by Shri M.L. Meena himself, there is no variation of any mandatory provision and with regard to the controversy raised by Dungar Singh on the question of contradiction between the statements of witnesses in the matter of taking samples, mixing the same, sending it to the Laboratory and in compatibility of the report Exh. P-9 with that of the statement of the prosecution witnesses and Exh.P-1; it was submitted by Shri Kawadia, Additional Public Prosecutor that it is not a case in which there is any evidence that the seals were not found to be intact or that the seals were at all alleged to be tempered as such and thus, no prejudice whatsoever can be said to have been caused to the appellants and, therefore, nothing turns out on the questions raised by Shri Dungar Singh in this regard and Shri Kawadia has placed reliance on Shri Durga Dass vs. State of Himachal Pradesh (5) & Nanak Chand vs. State of Himachal Pradesh (6). (13) I have considered the submissions made on behalf of the appellants as well as the learned Additional Public Prosecutors and have perused the record. The prosecution itself had come with the case that two samples of 25 gms. each were separately taken from each of the two bags. Obviously, it was to be ascertained as to what was the substance in each of the two bags. The prosecution itself had come with the case that two samples of 25 gms. each were separately taken from each of the two bags. Obviously, it was to be ascertained as to what was the substance in each of the two bags. In this view of the matter, it is not understood as to why the two samples were then mixed. In view of the evidence available in this case the following points are worth mentioning: — (1) P.K. Rai, P.W.1 does not say that the two samples of 25 gms. each taken from the two bags were mixed and then placed in the empty cigarette packets. (2) Mohammad Rehan, P.W.2, has stated that the two samples of 25 gms. each were mixed and, thereafter, they were again separated in the quantity of 25 gms. and, thereafter, were placed in the empty cigarette packets. (3) One fails to understand as to once the two samples of 25 gms. each were mixed, what was the purpose for again dividing them into two samples of 25 gms. each. (4) Kishan Gopal P.W.3, has stated that the mixed samples of 25 gms. were taken out. (5) Lal Singh, P.W.7, has stated that two samples of 30 gms. of each were taken out and were sealed. He does not say anything about the mixing of the two samples. (6) The Document Exh. P-1 ¼iapukek uktk;t tCrh vQhe½ shows that the mixed two samples of 25 gms. each were taken from the two bags ¼nksuksa FkSfy;ksa esa ls fefJr iPphl&iPphl xzke ds lsEiy okLrs jklk;fud tkap fudkydj nksuksa lsEiyksa dks jsM ,.M OgkbV flxjsV ds [kkyh [kksdksa esa j[kdj fpV can o lhycan fd;kA½ (7) Exh. P-9 i.e. the Chemical Examination Report while giving the description of the sample shows that the sample was kept in the Polythene bag, then in a Cigarette Carton, wrapped with paper bearing details of the case, etc. tied with thread and sealed. (8) The letter dated 12.08.1986; Exh. P-10 shows that it was issued by Superintendent (Prevention) Jodhpur. It also shows that the sample was received by Bhanwar Singh on 12.08.1986 and according to Bhanwar Singh he had received these samples at Chittor. tied with thread and sealed. (8) The letter dated 12.08.1986; Exh. P-10 shows that it was issued by Superintendent (Prevention) Jodhpur. It also shows that the sample was received by Bhanwar Singh on 12.08.1986 and according to Bhanwar Singh he had received these samples at Chittor. (9) Bhanwar Singh PW.9, also says that having received the samples at Chittor at about 8-9 a.m. on 12.08.1986 he had reached Neemach on the same day at about 10-11 a.m. and came back to Chittor from Neemach at about 5-6 p.m. on the very same day. (10) The Document; Exh. P-10 does not bear any submission note by Shri Bhanwar Singh with regard to the return of the sample. (11) Bhanwar Singh, P.W.9, has not explained as to for what reason the sample was returned by the Laboratory on 12.08.1986 and all that he has said is that the sample was returned on account of some deficiencies of papers. (12) On Exh. P-10, dated 12.08.1986, there is no note with regard to the submission of the return of the sample by Bhanwar Singh. The note given by Shri MX. Meena, P.W.10, thereon does not bear any date nor the note contains the date of the return of the sample or the reasons for the return of the sample. (13) M.L. Meena, P.W. 10, has stated that the sample was returned either because the factory was closed or there was something wrong ¼dqN xM+cM+ Fkh½A (14) M.L. Meena, P.W.10„ has stated that the sample was sent again on 21.08.1986 with Shri Lal Singh and the same was acknowledged on 25.08.1986 vide Exh.P-8, but the letter dated 21.08.1986 along with which the. sample was sent again has not been produced although there is a reference to the letter dated 21.08.1986 in the acknowledgement Exh. P-8 dated 25.08.1986. (15) It has not been explained as to how the letter issued on 12.08.1986 itself from Jodhpur could be made available to Shri Bhanwar Singh at Chittor at about 8-9 a.m. and how the job which could be done by Bhanwar Singh in less than 12 hours took so many days in case when the sample was sent with Lal Singh on 21.08.1986 as the acknowledgement Exh. P-8 thereof, bears the date of 25.08.1986. (16) The description of the sample as contained in Exh. P-8 thereof, bears the date of 25.08.1986. (16) The description of the sample as contained in Exh. P-1 and the version with regard to the taking of the samples and sealing the same as was given by P.W.I, P.W.2, P.W.3 & P.W.7 etc. is not at all compatible with the description of the sample given in the report Exh. P-9 at item No. 4 as has been quoted hereinabove inasmuch as apart from the contradiction in the statements of PW-1, PW-2, PW-3 and PW-7 in this regard, there is no reference to placing the samples in Polythene bag at the time they were sealed as per the contents of Exh. P-1 whereas the report Exh. P-9 refers to the polythene bag. (17) The investigating agency has not even shown as to who was the owner of the motorcycle, while according to prosecution itself, none of the appellants is the registered owner of the motorcycle in question which was used in the commission of the offence. (14) In view of the points enumerated hereinabove which present the fact situation as per the evidence oral, documentary and of contemporaneous nature, I am not impressed with the argument raised by the learned Additional Public Prosecutors that it was not a case in which the seals had not been found to be intact and because the seals were not tempered no prejudice whatsoever can be said to have been caused to the appellants. It is not a question of prejudice, although, I am of the view that in certain cases the departure from the normal procedure may itself amount to prejudice, however, so far as the facts of this case are concerned notwithstanding the question of prejudice, I find that in view of the factual position of this case as per the points noted and enumerated hereinabove the conviction of the appellants was not warranted and it will be unsafe to uphold and sustain the conviction. In Durga Dass vs. The State of Himachal Pradesh (supra) Supreme Court has observed that even if there is an irregularity in the investigation that would not vitiate the trial or the conviction in the absence of the evidence that the appellant has been prejudiced. In Durga Dass vs. The State of Himachal Pradesh (supra) Supreme Court has observed that even if there is an irregularity in the investigation that would not vitiate the trial or the conviction in the absence of the evidence that the appellant has been prejudiced. In the case at hand there is no question of any irregularity so as to vitiate the trial and, therefore, the argument of the learned Additional Public Prosecutors that the appellants have not been prejudiced is irrelevant. The plurality of the reasons to suspect the manner in which the samples have been dealt with, sent and returned, bundle of facts with regard to the manner in which the samples were taken out and were Sent to the Laboratory and the description of the sample as per the series of the points narrated hereinabove, put a question mark on the credibility of the vital part of the prosecution case. In yet another case which was relied upon by the prosecution before me i.e. Nanak Chand vs. State of Himachal Pradesh (supra), it has been held that as a general rule, a conviction is not vitiated merely because there had not been strict compliance with the provisions of Prevention of Corruption Act in the matter of investigation by a police officer unless prejudice is caused thereby. It will be sufficient to say that on behalf of the appellants in this case what has been stressed by Shri Dungar Singh is not the non-compliance with the provisions of the Act but the circumstances as per the evidence of the prosecution itself which render the case, from the point of taking of the samples to the delivery at the Laboratory to be suspicious and further that the contents of Exh. P-1 with regard to the description of the sample and the description of the sample as given in the report Exh.P-9 are not at all compatible. In such circumstances, a question mark is certainly put to the extent of creating a doubt against a major and vital part of the prosecution case. (15) In Rijumal vs. State of Rajasthan (supra) in the end of para 18 the Court has observed as under: — "18. In this case, it is true that from the Opium that was recovered from the godown of the accused, the sample was not taken from every piece or packet of Opium. (15) In Rijumal vs. State of Rajasthan (supra) in the end of para 18 the Court has observed as under: — "18. In this case, it is true that from the Opium that was recovered from the godown of the accused, the sample was not taken from every piece or packet of Opium. In such cases, the SHO should have mixed the entire collected material that was recovered and then, from that material collected and mixed together, he should have taken out 30 grams of Opium but that has not been done in this case and so, it cannot be said that the material that was found in those 56 small packets was Opium." (16) In the case at hand there are only two bags and according to some prosecution witnesses the samples of 25 gms. each were taken from each of the two bags and some witnesses have said that after having taken the samples from each of the two bags the same were mixed, P.W.7 has stated that the samples of 30 gms. each were taken. This Authority i.e. Rijumals case (supra) as such is of no help to the appellants. (17) In Mainuddin Kasim Mulla Vs. The State of Maharashtra (supra), it was held by a Division Bench of Bombay High Court that when links between seized articles and report of chemical analyser are not established, conviction cannot be sustained. (18) Jabar Singh vs. State of Rajasthan (supra), is a case in which there was difference in the seal marks made before the accused and which were found on the sample in the Laboratory and on that basis the benefit of doubt was granted. In the case at hand there is no difference in the marks of seal. (18) Jabar Singh vs. State of Rajasthan (supra), is a case in which there was difference in the seal marks made before the accused and which were found on the sample in the Laboratory and on that basis the benefit of doubt was granted. In the case at hand there is no difference in the marks of seal. (19) It was held by the Supreme Court in the case of State of Rajasthan vs. Daulat Ram (supra) i.e. AIR 1980 SC 1314 relied upon by Shri Dungar Singh, that the prosecution had not taken the Court into confidence in disclosing reasons as to why the office of the Superintendent of Police refused to take the samples; it cant be said that the prosecution has proved all the links starting from the seizure of the samples till the same reached at the hands of public analyst, that the prosecution had proved beyond reasonable doubt that the Opium seized was the Opium which was sent to the public analyst and that the onus was on the prosecution to prove the entire case at the trial and the prosecution could not be allowed to fill up the gaps and lacunae left at the trial. (20) In my considered opinion the cumulative effect of the various points which I have enumerated and discussed hereinabove are sufficient to create a doubt against a major and vital part of the prosecution case and the prosecution has failed to prove the correctness of its case starting from the terminal point of the seizure of the samples till the stage of the delivery of such samples to the Laboratory and the compatibility of the description of the samples in Exh. P-1 at the time of the seizure and sealing and the description of the same as given in report Exh. P-9 and, therefore, it is a fit case for granting the benefit of doubt to the appellants. Accordingly, I set aside the conviction and sentence awarded to the appellants in Sessions Case No. 12/87 on 11-9-90 by Sessions Judge, Rajsamand and acquit both the appellants i.e. Asharam S/o Bhabutaram and Bhagwanlal S/o Mangilal of the offences u/s 8/17 of the Narcotic Drugs & Psychotropic Substances Act,1985 by giving the benefit of doubt. The appellants are said to be in jail at Udaipur. They may be released forthwith if not required in any other case. The appellants are said to be in jail at Udaipur. They may be released forthwith if not required in any other case. The record be returned forthwith. (21) The appeal is allowed.