JUDGMENT 1. - Vy the judgment and order dated 24.5.95, the special Judge for N.D.RS. Cases, Banswara, has convicted the accused- appellant for the offence under section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act') and sentenced him to the rigorous imprisonment for 10 years and fine of Rs. 1,00,000/-. In default of fine 21/2 years further rigorous imprisonment was directed. Against this conviction and sentence, this appeal has been preferred. 2. I have heard the arguments of both the sides. 3. According to the prosecution, 13.100 gms. of grown sugar was recovered from the possession of the accused- appellant, which was duly sealed and sent for chemical examination to the Forensic Science Laboratory, Jaipur, whereupon, it was found that the sample was brown sugar. 4. The important question is whether the brown sugar was in fact recovered from the possession of the accused- appellant ? Shanti Lal (PW 8) C.l. at the relevant time was posted as S.H.O., Kotwali, Banswara. In that capacity, he searched the accused-appellant and the brown sugar as aforesaid was recovered. Shanti Lal (PW 8) has deposed that after the recovery from the possession of the appellant, the substance was put in a matchbox and was duly sealed. He has stated in examination-in-chief as under:- " bl lkjs gh inkFkZ dks ,d ekfpl dh fMCch esa Mkydj diM+s ls flydj FkSys dh lhy ls lhy fd;kA " 5. Again in the cross-examination, he has testified that: " ;g Bhd gS fd czkmu 'kqxj dh cjkenxh ds ckn ekfpl ds [kkyh [kksds esa cUn fd;kA " 6. It is evident that Shanti Lal (PW 8) has stated twice on oath that the substance recovered from the possession of the accused-appellant was put in the matchbox and was duly sealed. The F.S.L. report (Ex.P 7) shows that the sample received by it, was contained in a 'Red Coloured Plastic Dibi'. Thus, there is a basic material discrepancy in the evidence of Shanti Lal (PW 8) and F.S.L. report (Ex.P 7) with regard to the substance recovered from the possession of the accused-appellant. According to Shri Shanti Lal (PW 8), the substance recovered from the possession of the accused-appellant, was put in a matchbox while as per the F.S.L. report (Ex.P 7) the substance received by it, was found to be in a red coloured plastic Dibi. 7. According to Shri Shanti Lal (PW 8), the substance recovered from the possession of the accused-appellant, was put in a matchbox while as per the F.S.L. report (Ex.P 7) the substance received by it, was found to be in a red coloured plastic Dibi. 7. In the recovery memo (Ex.P 4), it is mentioned that the substance recovered was put in a plastic Dibi. This recovery memo (Ex.P 4) has been made by C.I., Shanti Lal (PW 8). Shanti Lal (PW 8) has stated after seeing the recovery memo (Ex.P 4) that at the place `E' to `F' is his signature. This goes to indicate that Shanti Lal (PW 8) after seeing the recovery memo (Ex.P 4) has testified that it bore his signatures at `E' to `F. Still, he has deposed on oath that the substance recovered from the possession of the accused-appellant was put in a matchbox. This, he has stated on oath twice. It is well settled in law, that the deposition on oath is preferred over a memo which had been made during the investigation. Therefore, the deposition of Shanti Lal (PW 8) will have to be accepted to the effect that the substance recovered from the accused-appellant was put in a matchbox and was sealed. It cannot be accepted on the face of the statement of Shanti Lal (PW 8) on oath that the substance recovered from the possession of the accused-appellant was put in a plastic Dibi. Therefore, on the evidence of Shanti Lal (PW 8) given on oath, it is proved that the substance recovered from the possession of the accused-appellant was put in a matchbox by Shanti Lal (PW 8) and sealed. From the F.S.L. Report (Ex.P. 7), it is clear that the substance received by the Forensic Science Laboratory was in a plastic box. Therefore, in my opinion, it is not proved beyond all reasonable doubt that the substance recovered from the possession of the accused-appellant was brown sugar because the F.S.L. report (Ex.P 7) does not seem to be in respect of the substance which was recovered from the possession of the accused-appellant. 8. In the result, this appeal is allowed on the doctrine of benefit of doubt. The order of conviction and sentence is set aside. The accused-appellant is acquitted of the offence under section 8/21 of the Act. 8. In the result, this appeal is allowed on the doctrine of benefit of doubt. The order of conviction and sentence is set aside. The accused-appellant is acquitted of the offence under section 8/21 of the Act. He shall be set at liberty forthwith, if not required in any other case.Appeal allowed. *******