JUDGMENT 1. - This appeal is directed against the judgment dated 25.7.92, passed by the Additional Sessions Judge, Barmer, by which the learned Additional Sessions Judge convicted the accused-appellant for the offence under Section 8/17 of the Narcotic Drugs and Psychotropic Substances Act and sentenced him to undergo ten years' rigorous imprisonment and a fine of Rs. 1,00,000 and in default of payment of fine further to undergo two years rigorous imprisonment. 2. The accused-appellant was tried by the learned Additional Sessions Judge, Barmer, for the offences under Sections 8/17 and 18 of the Narcotic Drugs and Psychotropic Substances Act (in short `the Act'). The case of the prosecution is that on 27.8.89, PW 7 Mr. Prema Ram Pooniya, the Deputy Superintendent of Police, Chauhtan (District Barmer) had gone to village Kekar in connection with investigation in some criminal case. When he was returning from village Kekar and was proceeding towards village Sedwa along with the police party in a jeep, in the way they saw the accused-appellant going towards village Sedwa in front of the jeep. After seeing the jeep, the accused tried to run away. A suspicion arise; he was detained and on enquiry he disclosed him name as "Bher Singh". The accused was carrying one Angochha (thin-towel) on his shoulder. On enquiry he informed that there is opium in it. Two Motbirs, viz., PW 3 Dhanna Ram and PW 8 Subhan Khan were called and in their presence the appellant was searched and from his possession, one kilogram of opium was recovered. Two samples of 24 grams each were taken from this opium. The two samples as well as the remaining opium were seized and sealed. The accused was arrested, site plan was prepared and thereafter the police party came to Police Station, Sedwa, where an F.I.R. was registered by PW 5 Gopal Singh, S.H.O., who further investigated the matter and filed the challan. The prosecution, in support of its case, examined nine witnesses. The accused, in his defence, examined two witnesses. PW 1 Jalam Singh, A.S.I. and PW 2 Bhoor Singh, Constable, were the two persons of the police party who accompanied PW 7 Mr. Prema Ram Pooniya, Deputy Superintendent of Police, in a jeep in connection with investigation in some criminal case at village Kekar. The accused, in his defence, examined two witnesses. PW 1 Jalam Singh, A.S.I. and PW 2 Bhoor Singh, Constable, were the two persons of the police party who accompanied PW 7 Mr. Prema Ram Pooniya, Deputy Superintendent of Police, in a jeep in connection with investigation in some criminal case at village Kekar. When they were returning from village Kekar and were proceeding towards village Sedwa, the accused met them in the way and on seeing the police party he tried to run away. He was apprehended and on his search in the presence of PW 3 Dhanna Ram and PW 8 Subhan Khan, one kilogram of opium was recovered from his possession which was seized and sealed, the accused was arrested brought to Police Station, Sedwa, where the F.I.R. was lodged and the seized articles were handed-over to PW 5 Gopal Singh, S.H.O., who gave the same to PW 9, Neta Ram, H.C., who was the Incharge of the Malkhana of Police Station, Sedwa. PW 3 Dhanna Ram and PW 8 Subhan Khan are the two Motbir witnesses, in whose presence the search of the accused was taken and the recovery of the opium was made. PW 8 Subhan Khan has not supported the prosecution case during the trial, however, PW 3 Dhanna Ram has supported the prosecution case. PW 4 Shyam Lal is the Literate Constable, who was posted in Crime Section of the Office of the Superintendent of Police, Barmer, before whom PW 6 Prithvi Singh produced two samples for being taken, to State Forensic Science Laboratory, Jaipur, for F.S.L. examination. PW 4 Shyam Lal got a forwarding letter prepared and handed over the sealed article along with the forwarding letter to PW 6 Prithvi Singh. PW 5 Gopal Singh is the Station House Officer, who registered the F.I.R. conducted the investigation and filed the challan. PW 6 Prithvi Singh was the Constable posted at Police Station, Sedwa, who took the two samples for F.S.L. examination to Jaipur after receiving the same from PW 9 Neta Ram on 1.9.89. He first took the samples to the office of the Superintendent of Police, Barmer and after obtaining the forwarding letter therefrom, took the samples to the aforesaid Laboratory for F.S.L. examination and deposited the same there. PW 7 Mr. He first took the samples to the office of the Superintendent of Police, Barmer and after obtaining the forwarding letter therefrom, took the samples to the aforesaid Laboratory for F.S.L. examination and deposited the same there. PW 7 Mr. Prema Ram Pooniya was the Deputy Superintendent of Police, who had gone to village Kekar in connection with investigation in some criminal case and while proceeding towards village Sedwa he apprehended the accused, searched him and found one kilogram of opium in his possession. He prepared the site plan and after search, seizure and arrest of the accused, lodged the F.I.R. at Police Station, Sedwa and handed over the investigation to PW 5 Gopal Singh, S.H.O. who after making investigation filed the challan. PW 9 Neta Ram is the Head Constable/Incharge of the Malkhana of Police Station, Sedwa. He was handed over the seized articles which were found properly sealed. He kept the same in the Malkhana and the seals remained intact. The accused-appellant produced two witnesses in his defence. DW 1 Rahiman has stated that on 27.8.89, in his presence, no opium was recovered from the accused-appellant. Similar is the statement of DW 2 Birdha Ram, who is the Sarpanch of village Kekar. He has stated that the opium was recovered from an open place in a field and Bher Singh was arrested, who was in his Gudal. The evidence of two defence witnesses does not inspire confidence. The learned trial Court, after trial, convicted and sentenced the accused-appellant for the offence under Section 8/17 of the N.D.P.S. Act, as stated above. It is against this judgment that the accused-appellant has preferred this appeal. 3. It is contended by the learned counsel for the appellant that there is a total non-compliance of the provisions of Section 50 of the Act as the appellant was never informed that if he so desires he can be searched in the presence of a gazetted officer or a nearest Magistrate. By not disclosing so, the valuable right of the accused-appellant has been taken away, which vitiates the trial. In support of his contention, learned counsel for the appellant has placed reliance over : The State of Punjab v. Balbir Singh, AIR 1994 SC 1872 and Ali Mustaffa Abdul Rahman Moosa v. The State, 1994 Crimes 456 . By not disclosing so, the valuable right of the accused-appellant has been taken away, which vitiates the trial. In support of his contention, learned counsel for the appellant has placed reliance over : The State of Punjab v. Balbir Singh, AIR 1994 SC 1872 and Ali Mustaffa Abdul Rahman Moosa v. The State, 1994 Crimes 456 . It has, also, been contended by the learned counsel for the appellant that the compliance of Section 55 of the Act, which is mandatory in nature, has not been made. Neither the specimen seal was sent alongwith the sample to the State Forensic Science Laboratory, Jaipur, nor is there any link evidence to show that the seals on the article (sample) sent by the prosecution for F.S.L. examination, remained intact through out from the date of its recovery till it reached the aforesaid Laboratory. It has, also, been contended by the learned counsel for the appellant that there is total non-compliance of the provisions of Section 57 of the Act, which vitiates the trial. The learned Public Prosecutor, on the other hand, had supported the judgment passed by the Court below and submitted that the learned Additional Sessions Judge has considered the evidence, produced by the prosecution, in the right perspective and the prosecution has proved the case against the appellant beyond a reasonable manner of doubt. It has, also, been contended by the learned Public Prosecutor that the compliance of the provisions of Sections 55 and 57 of the Act has properly been made. It has, also, been contended that Section 50 of the Act is not applicable in the present case because the search was made while the police party as returning from village Kekar after conducting investigation in some criminal case and the search was made under the provisions of the Code of Criminal Procedure. 4. I have considered the submissions made by the learned counsel for the parties. 5. PW 7 Mr. Prema Ram Pooniya, Deputy Superintendent of Police, alongwith the police personnels, had gone to village Kekar in connection with investigation in a criminal case and while returning to village Sedwa, the accused was suspected, searched seizure and arrest were made and the investigation was made under the provisions of the Code of Criminal Procedure. One kilogram of opium was recovered from the possession of the accused. One kilogram of opium was recovered from the possession of the accused. Since the search was made under the provisions of the Code of Criminal Procedure, therefore, Section 50 of the Act was not applicable in this case. Even otherwise, PW 7 Mr. Prema Ram Pooniya was the Deputy Superintendent of Police, who is a gazetted officer and the search was made in his presence and, therefore, the compliance of Section 50 of the Act has been made. The contention, raised by the learned counsel for the appellant, is, therefore, devoid of any force. 6. The next contention, raised by the learned counsel for the appellant is that neither the specimen seal was sent to the State Forensic Science Laboratory alongwith the sample nor is there any evidence to show that the seals on the sample-article remained intact through-out. No witness has stated that the specimen seal or the original seal was ever sent to the Laboratory alongwith the sample. Even PW 7 Mr. Prema Ram Pooniya, Deputy Superintendent of Police, has not stated that he deposited the seal in the Malkhana of Police Station, Sedwa. He has not stated in his statement that the seals on the articles remained intact through out the period since the time and date of their seizure till they were deposited in the Malkhana of Police Station, Sedwa. PW 9 Neta Ram, who was the Incharge of the Malkhana of Police Station, Sedwa, has, also, not stated that the seals on the article remained intact through out the period it remained in his possession and he has only stated that one packet (cloth-bag) and two Dibbis, in a sealed condition, were given to him, which were entered by him in the Malkhana Register at Serial Number 23 on page 5 thereof. He has nowhere stated in his statement that the seals on the samples remained intact through out the period the articles remained in his possession. PW 6 Prithvi Singh has, also, not stated in his statement before the Court that the seals on the articles remained intact through out the period since they were handed over to him till they were deposited in the Laboratory for F.S.L. examination. The evidence that the seals on the articles remained intact through out the period since the date of their sealing till they reached the Laboratory, is missing. The evidence that the seals on the articles remained intact through out the period since the date of their sealing till they reached the Laboratory, is missing. There is no evidence to show that the specimen seal was sent to the Laboratory. Though in the F.S.L. Report it has been mentioned that the seals on the article tally with the specimen seal but there is nothing on record to show that the specimen seal was ever sent to the Laboratory. The prosecution has, therefore, failed to prove that it was the same article which was recovered from the accused and sent to the Laboratory for F.S.L. examination. Therefore, the appellant deserves to be acquitted on this count alone. 7. In the result, the appeal, filed by accused-appellant Bher Singh is allowed. The judgment dated 25.7.92, passed by the learned Sessions Judge, Barmer, convicting and sentencing the accused-appellant for the offence under Section 8/17 of the Narcotic Drugs and Psychotropic Substances Act is quashed and set aside and the appellant is acquitted of the aforesaid offence. He is in jail. He shall be released forthwith if he is not required in any other case.Conviction and Sentence set aside. *******