USHA MEHRA ( 1 ) JACOB Lawnson, a Nigerian National was arrested on 14th April, 1991. He was found in possession of 75 grams of heroin. He was apprehended in front of Hotel Konark Erakashan Road, Nabi Karim, Delhi. Later, during investigation he made a disclosure statement. On the basis of which the raiding party went to the rooftop of the said hotel, wherefrom he got recovered another quantity of 205 grams of heroin concealed in capsules 18 in number. These were found hidden under the sandbags lying on the rooftop. He was thus booked under section 21 of the Narcotic Drugs Psychotropic Substances Act 1985 (in short the Act ). ( 2 ) THE prosecution examined members of the raiding party as well as the independent witness. On the basis of their testimony the Trial Court held the appellant guilty. He has been accordingly convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lakh and in default of payment of fine, to undergo further rigorous imprisonment for two years. ( 3 ) IT is against this judgement the present appeal has been preferred TO, inter alia, on the grounds that there had been a violation of the mandatory provisions, namely, Section 42, 50 and 57 of the Act. Investigating Officer did not comply with these provisions. He did not send the report to his superiors as required under Section 57 of the Act. Moreover, CFSL form was not filled up at the spot nor deposited with Moharar Malkhana nor the same was sent to the office of CFSL. It has not been proved that the samples with the CFSL form were deposited in the office of CFSL. Since the case property and samples remained with the police alongwith seals from 14th April, 1991 till 9th May, 1991, there is every reason to apprehend that samples must have been tampered with. Even otherwise prosecution has not given any explanation for this delay in deposit of the samples in the office of CFSL. ( 4 ) TO appreciate the challenge we may refer to Sections 42, 50 and 57 of the Act. Section 42 (1) provides that if any officer described under this Section has reason to believe that any narcotic drug or psychotropic substance is kept or concealed in any building, enclosed place etc. ( 4 ) TO appreciate the challenge we may refer to Sections 42, 50 and 57 of the Act. Section 42 (1) provides that if any officer described under this Section has reason to believe that any narcotic drug or psychotropic substance is kept or concealed in any building, enclosed place etc. he may between sun rise and sun set enter into and search such building or enclosed place etc. He is empowered to arrest such a person provided he believes that a search warrant or authorisation cannot be obtained without affording opportunity and this way facilitate escape of the officer. Once he forms this belief he will record the grounds of his belief. Sub-section (2) of Section 42 requires that where an officer takes down the information in writing or records ground for his belief, he shall forthwith send a copy of the said report to his immediate official superior. But in this case though raid was admittedly conducted between sun rise and sun set still no report was reduced into writing nor sent by the I. O. to his immediate official superior. Pointing to this lapse on the part of the I. O. Mr. Jitender Sethi counsel for the appellant contended that since the statutory and mandatory provisions have been violated hence the case ofthe prosecution stands vitiated. Countering this argument Mr. Paw an Behl appearing for the State contended that there was no necessity to send the report because the SHO was very much present at the spot. He being the immediate senior officer got the report from the I. O. at the spot itself. There was thus sufficient compliance of the provisions of Sub-section (2) of Section 42. This argument of Mr. Behl has in fact no force in view ofthe admission made by Mr. Satish Kumar, Public Witness-7, the Investigating Officer of this case. He in his cross examination admitted that he did not record secrete information nor informed about the same to his senior officer. The S. H. O. came at the spot per chance and that too after the search of the person of the appellant. Hence, it would not be right to say that since S. H. O. came by per chance hence 1. 0. need not have reduced the information into writing. In this view of the matter the contentions of Mr. Behl do not hold good. Hence, it would not be right to say that since S. H. O. came by per chance hence 1. 0. need not have reduced the information into writing. In this view of the matter the contentions of Mr. Behl do not hold good. Once it is established that there was a non-compliance of the mandatory provisions of Section 42, to my mind, the case of the prosecution stood vitiated. Besides non-compliance of the provisions of Section 42, there is non- compliance of the provisions of Section 57 of the Act. Even though Supreme Court in the case State Bank of Punjab Vs. Balbir Singh held that provisions of Section 57 are not mandatory but in the subsequent judgement in the case of Mahender Kumar V. State of Panaji, Goa reported in AIR 1995 Crl. Law Journal, page 2074 Supreme Court observed that the provisions of Section 57 of the Act are mandatory. If that be so then apparently, there is non compliance of this provision, which on parity of reasoning of Balbir Singh s case Supreme Court held to be mandatory. Case of prosecution must fail on this ground itself. I. O. no where says that he prepared the special report. He rather admitted that he did not inform his senior officer about it. No explanation has been offered why the special report was not prepared. Having not adhered to the mandatory requirements, Mr. Sethi, contended that appellant is liable to be acquitted. In this case no report of the arrest and seizure had been forwarded to superior officers as admitted by Public Witness-7, the Investigating Officer. The Investigating Officer nowhere recorded the ground of his belief. If for the sake of arguments it is presumed that he recorded then he never forwarded the same to his superior officers as required under Section 42 of the Act. ( 5 ) MR. SETHI then contended that statement of Shri Shiv Kumar Sharma, Public Witness-1 the alleged independent witness cannot be relied upon because he was not in the employment of the hotel. He has admitted that he was appointed in this hotel on 4th March, 1992. In view of this admission no reliance should be placed on his testimony. He is a planted witness. The document Ex. Public Witness-1 /da has been procured in order to overcome the lacuna created in his testimony. I am afraid this argument of Mr. He has admitted that he was appointed in this hotel on 4th March, 1992. In view of this admission no reliance should be placed on his testimony. He is a planted witness. The document Ex. Public Witness-1 /da has been procured in order to overcome the lacuna created in his testimony. I am afraid this argument of Mr. Sethi has no substance because Public Witness-1 explained that by oversight he gave the date of his appointment as 4th March, 1992. Whereas in fact he was appointed on 4th March, 1991. His employer had issued the letter to indicate his date of appointment vide Ex. Public Witness-1/da. This shows that he was appointed on 4th March, 1991. There is no reason to doubt the authenticity of Ex. Public Witness-1/da. Why would an employer show Public Witness-1 s appointment of 1991 if he was appointed in 1992. Moreover. Public Witness- 1, Shri Shiv Kumar Sharma is a signatory to all the documents which were prepared on 14th April, 1991. If he was not in the job of the hotel then how could he be a signatory to these documents. Moreover, he was the one who recorded the entry in the hotel s register when petitioner took the room. Therefore, it cannot be said that Ex. Public Witness-1/da is false or procured to fill the lacuna nor it can be said that he was a planted witness. ( 6 ) NOW turning to Ex. Public Witness-1/d i. e. notice under Section 50 of the Act, Mr. Sethi contended that it is defective, because according to Mr. Shiv Kumar Sharma, Public Witness-1 all the documents including the notice Ex. Public Witness-1/d were prepared at the Police Station. He signed the same at the police station meaning thereby that the notice was not served on the accused before his search was conducted. To strengthen his arguments Mr. Sethi placed reliance on the testimony of Public Witness-1, Mr. Shiv Kumar Sharma, wherein he admitted that no notice was served on the accused at the time of his search. Moreover, the offer as required under the mandatory provisions of Section 50 of the Act was given to the accused after his search, though he tried to cover it up by saying subsequently that opinion was given before search. Relying on this part of Public Witness-1 s testimony Mr. Moreover, the offer as required under the mandatory provisions of Section 50 of the Act was given to the accused after his search, though he tried to cover it up by saying subsequently that opinion was given before search. Relying on this part of Public Witness-1 s testimony Mr. Sethi contended that no written notice having been served on the appellant before his search was conducted hence there was a clear violation of the statutory provisions of Section 50 of the Act. The punishment being severe therefore, to bring home the guilt the Legislature made the procedure of Search and arrest very stringent. Non-compliance of the statutory provisions will vitiate the case of the prosecution. Section 50 of the Act stipulates that accused be searched before Gazetted Officer or Magistrate and that too before his search. But in this case offer was not given before the search at the spot as per Public Witness-1. This establishes that the search and seizure was not done in accordance with the law. Investigating Officer threw to the wind the mandatory requirements of law. Public Witness-1 in no uncertain words admitted that he signed the documents including notice, Ex. Public Witness-1/d at the police station. In view of this admission of an independent witness, it becomes apparent that no offer, as required under Section 50, was given to the accused before his search. For non-compliance of the statutory provision of the Act, the case of the prosecution must fail. Moreover, it was the stand of the Investigating Officer that when option was given to the accused he declined. But the perusal of Ex. Public Witness-1/d does not support this part of the prosecution version. No amount of oral testimony can falsify the written notice. On the notice no where it has been mentioned that the accused declined the offer. Had it been so there would have been such endorsement on Ex. Public Witness-1/d. Non-mentioning of this fact on Ex. Public Witness-1/d lend support to the contention of Mr. Sethi that if the notice had been issued at the spot and served on the accused then factum of his decling would have been incorporated in Public Witness-1/d. In the absence of same, the version given by Public Witness-1 that documentation was done at the police station cannot be ruled out. Public Witness-1/d lend support to the contention of Mr. Sethi that if the notice had been issued at the spot and served on the accused then factum of his decling would have been incorporated in Public Witness-1/d. In the absence of same, the version given by Public Witness-1 that documentation was done at the police station cannot be ruled out. Verbal testimony of the Investigating Officer s version that the accused declined the option cannot be relied upon. In the absence of accused having declined the offer, it was incumbent upon the Investigating Officer to get the search made either before the Gazetted Officer or the Magistrate. But in the present case the accused was neither searched before the Gazetted Officer nor before the Magistrate. In this view of the matter, appellant had been deprived of the statutory right conferred upon him under the provision of Section 50 of the Act. Therefore, I am in agreement with the contention of Mr. Sethi that prosecution must fail on this ground also. Even otherwise reading of the testimony of Public Witness-1 it can be inferred that the notice Ex. Public Witness-1/d was not issued in the presence of Mr. R. S. Dahiya, S. H. O. , Public Witness-2. Had the notice been prepared and served at the spot then Public Witness-2, S. H. O. would have signed this document. But the notice Ex. Public Witness-1/d does not bear the signature of Public Witness-2. This creates doubts in the story of the prosecution that at the time of search and seizure, SHO was present. ( 7 ) REVERTING to the challenge to the CFSL report Ex. Public Witness-7/c, Mr. Sethi contended that the same besides being vague and defective ought not to have been relied upon because it lacked all the material particulars. In order to appreciate his contention, CFSL report Ex. Public Witness-7/c is reproduced as under:- "your letter No. 1242 dated 14. 4. 91, regarding two sealed cloth parcels in connection with FIR No. 146 dated 14. 4. 91, PS Nabi Karim, under Section 21/61/85 NDPS Act, 1985, as stated by you and duly received in this office on DESCRIPTION OF THE PARCEL AND CONDITION OF SEAL. Received two sealed parcel with the seal intact SKR and RSD as per official specimen enclosed. DESCRIPTION OF ARTICLES 1. Two sealed cloth parcels containing ten gms. 4. 91, PS Nabi Karim, under Section 21/61/85 NDPS Act, 1985, as stated by you and duly received in this office on DESCRIPTION OF THE PARCEL AND CONDITION OF SEAL. Received two sealed parcel with the seal intact SKR and RSD as per official specimen enclosed. DESCRIPTION OF ARTICLES 1. Two sealed cloth parcels containing ten gms. and two gms (approx.) brown powder said to be Heroin/ Smack marked as Exhibit No. I and II respectively. RESULT OF ANALYSIS " ( 8 ) AS per the testimony of Public Witness-6, HC Rohtash Singh, the Inspector Public Witness-2 deposited four sealed parcels and one CFSL Form with the Moharar Malkhana. On 9th May, 1991 two sample parcels were sent to the office of CFSL through Constable Dharamvir Singh Public Witness-4. The extract of the Register No. 19 has been proved as Ex. Public Witness-6/a. Relying on this part of his testimony Mr. Sethi contended that the sample with CFSL Form had been allegedly sent on 9th may, 1991, whereas perusal of the report Ex. Public Witness-7/c belies this part of his testimony. Ex. Public Witness-6/a shows that parcels were sent on 9th May, 1991. Whereas Ex. Public Witness-7/c refers to the receipt of two parcels only vide letter of the S. H. O. dated 14th April, 1991. If the sample parcels were despatched on 9th May, 1991 the forwarding letter could not have been of 14th April. 1991. For this discrepency there is no explanation given by either the Investigating Officer, S. H. O. nor by Moharar Malkhana. Moreover, the report Ex. Public Witness-7/c is silent as to when these parcels were received in the office of the CFSL. The date on which these were received has been left blank in Ex. Public Witness-78/c. It has also not been mentioned that alongwith the parcels CFSL form was received. This shows CFSL form was not received in the office of the CFSL. To my mind, in view of the blank left in the report Ex. Public Witness-7/c, a doubt has been created as to whether the samples which were deposited had not been tampered with. It is mentioned in the testimony of Public Witness- 6 that the parcels and the CFSL Form were sent through Head Constable Dharamvir Singh Public Witness-4. Whereas Dharamvir Singh appearing as Public Witness-4 nowhere corroborates this part of the testimony of Moharar Malkhana Public Witness-6. It is mentioned in the testimony of Public Witness- 6 that the parcels and the CFSL Form were sent through Head Constable Dharamvir Singh Public Witness-4. Whereas Dharamvir Singh appearing as Public Witness-4 nowhere corroborates this part of the testimony of Moharar Malkhana Public Witness-6. Shri Dharamvir Singh nowhere stated that he was given samples and CFSL form for deposit nor stated that he deposited the samples with the CFSL form in the CFSL office. Even though Public Witness-4 Shri Dharamvir Singh was declared hostile and cross-examined by the Public Prosecutor still no question was put to him with regard to the deposit of sample parcels and the CFSL form in the office of the CFSL. In the absence of any corroborative evidence that the samples without interference so long these remained in the custody of Public Witness-4, were deposited in the office of the CFSL, doubt is created. Samples which were taken out from Moharar Malkhana on 9th may, 1991 were never deposited in the office of CFSL on 9th May, 1991 itself. Rather Ex. Public Witness-7/c shows samples sent vide letter dated 14th April, 1991 were deposited in the office of the CFSL on 9th May, 1991. It creates a doubt in the case of the prosecution that whether the same samples were deposited and analysed. As per the version of Public Witness-1, Shri Shiv Kumar Sharma, the Investigating Officer collected the seals from him the very next day. Since the seals were with the Investigating Officer and the samples remained with the police from 14th April, 1991 till 9th May, 1991, there was every possibility to tamper with the same. Otherwise why were the samples kept for almost a month in the custody of police. Thereafter samples were taken out on 9th May, 1991 but nobody knows when those were deposited in the office of CFSL. Neither road certificate produced nor the official who deposited the same in the office of the CFSL. Public Witness-4 whom Public Witness-6 says samples were handed over for taking to the office of CFSL does not support the case of the prosecution. Hence, chances of samples being tampered with cannot be ruled out. Neither road certificate produced nor the official who deposited the same in the office of the CFSL. Public Witness-4 whom Public Witness-6 says samples were handed over for taking to the office of CFSL does not support the case of the prosecution. Hence, chances of samples being tampered with cannot be ruled out. This inference can be drawn because the prosecution left the gaps to be filled namely if the samples w ere taken out and sent through Constable Dharam Vir Singh Public Witness-4, then why he did not support the case of the prosecution. Ex. Public Witness-7/c CFSL report nowhere indicates as to when the samples were deposited in its office. It also does not indicate whether alongwith sample CFSL form was deposited? Therefore, the apprehension of the appellant that the samples were tampered cannot be brushed aside lightly. In similar circumstances this Court in the case of Datu Ram V. State observed that when the I. O. , did not state that he deposited the parcel himself with the Moharar Malkhana or in the office of the CFSL then question of tampering with cannot be ruled out. In the present case also the Investigating Officer nowhere states that he deposited the sample and the seals alongwith CFSL form with Moharar Malkhana. Even the SHO nowhere states that he deposited the CFSL form. Even entry in Malkhana Register Ex. Public Witness-6/a does not indicate that CFSL form was deposited. The person who is alleged to have deposited the samples i. e. Public Witness-4 does not corroborate the version of the prosecution. Hence, case of the prosecution becomes doubtful and lurking doubt is created that perhaps samples were tampered with and that is the reason Public Witness-4 did not support the case of the prosecution on this aspect. ( 9 ) MR. Behl s contention that in Ex. Public Witness-7/c there has been a mention that sealed parcel with the seal intact was received as per official specimen enclosed, hence it should be presumed that CFSL form was also submitted in the office of CFSL. I am afraid this argument is without force. What was that official specimen enclosed has not been indicated nor proved on record. In the absence of which no credence can be attached to this part of the observation in Ex. I am afraid this argument is without force. What was that official specimen enclosed has not been indicated nor proved on record. In the absence of which no credence can be attached to this part of the observation in Ex. Public Witness-7/c. This court in the case of Moolchand V. State II (1993) CCR 964 observed that non-deposit of CFSL form creates a deficiency in the material linking evidence and, therefore, causes a dent in the prosecution case. Supreme Court in the case of Baldev Singh V. State of Punjab 1991 CAR 81 (SC), observed that delay in deposit of the case property in CFSL office will create doubt in the case of the prosecution and such an evidence is liable to be discarded. In the present case the incident is of 14th April, 1991, when the case property was seized, deposited according to Public Witness-2 on the same date with Moharar Malkhana. Why it was kept with the police till 9th May, 1991. No explanation has been furnished as to why the same was not deposited in the office of CFSL at the earliest. Moreover, when it was deposited in the office of the CFSL no date has been mentioned on Ex. Public Witness-7/c. In view of the delay and non-deposit of CFSL form, the case of the prosecution becomes weak and doubtful. This Court in the case of Wilson Dayal Vs. State, 1993 JCC 3, took a serious view of the delay in deposit of the sample in the office of CFSL and for keeping the sample in the Malkhana. In that case also the road certificate was not produced nor the deposit of the sample with CFSL was proved, hence this Court doubted the case of the prosecution and set aside the conviction of that accused. ( 10 ) SO far as the second recovery from the rooftop of the hotel at the instance of the appellant is concerned, for that admittedly, no CFSL form was filled neither at the spot nor at the police station. The version of the prosecution that after first recovery and use of seals these were handed over to Public Witness-1. At the time of second recovery those very seals were again used after taking from Public Witness-1 and S. H. O. came back hence this seal was also used. The version of the prosecution that after first recovery and use of seals these were handed over to Public Witness-1. At the time of second recovery those very seals were again used after taking from Public Witness-1 and S. H. O. came back hence this seal was also used. Public Witness-1 no where stated that seals were given to him after being used for the first time or taken again second time. According to Public Witness-1 seals were taken back by the police the next day. Thus the testimony of Public Witness-7 in regard is not corroborated by Public Witness-1. Public Witness-2 S. H. O. , Public Witness-3 Shri Prem Singh, Dharamvir Singh Public Witness-4 stated that at the time of second recovery another CFSL form was also filled. But this part of their testimony is neither supported by Public Witness-1 nor by the Investigating Officer himself. Rather the testimony of Public Witness-6 Moharar Malkhana nulifies this version. Public Witness-6 stated that only one CFSL form was deposited alongwith four sealed parcels. Even this circumstance that another CFSL form was filled was not put to the appellant when his statement under Section 313 Cr. P. C. was recorded. The law is well settled that a circumstance which had not been put to an accused cannot be used against him. But that apart when the Investigating Officer himself admits that no second CFSL form was filled at the spot with regard to second recovery no reliance on this aspect of the testimonies of SHO Public Witness-2, Shri Dharamvir Singh Public Witness-4 and Mr. Prem Singh Public Witness-3 can be placed. As already observed above the Investigating Officer collected the seals from Public Witness-1 on the next day. therefore, the possibility of tampering with the sample cannot be ruled out, particularly when the seals after use remained with the police and the sample also remained with the police for nearly one month. The fact that sample changed hands from S. H. O. to Moharar Malkhana and from Malkhana to Dharamvir Singh, thereafter we are in the dark as to what happened after the samples were handed over to Public Witness-4 Dharamvir Singh. We are not even told that Shri Dharamvir Singh deposited these samples with the CFSL and that report Ex. Public Witness-7/c is with regard to those very samples the recovery of which was effected from the possession of the appellant. We are not even told that Shri Dharamvir Singh deposited these samples with the CFSL and that report Ex. Public Witness-7/c is with regard to those very samples the recovery of which was effected from the possession of the appellant. In fact there is missing link with regard to the deposit of samples after being taken out from Malkhana to the office of CFSL. There is in fact no proof nor any evidence to establish that those very samples were deposited with CFSL which were taken from the possession of the appellant. In the absence of any proof with regard to second recovery case of the prosecution becomes doubtful. In the absence of second CFSL form having been deposited with the Moharar Malkhana or in the office of CFSL no reliance can be placed on the report Ex. Public Witness-7/c. ( 11 ) DIVISION Bench of this Court in the case of Amarjit Singh Vs. State, 1995 SCC page 91 observed that:- "it was for the prosecution to prove that not only the case property was duly sealed with particular seals and was duly deposited in the Malkhana untampered but it was also incumbent upon the prosecution to show that the samples which had been duly sealed remained intact till these reached the office of the CFSL. In proving these facts it was necessary for the prosecution to prove that the CFSL form containing the specimen seals which was duly filled at the time of taking of the samples also remained intact and it reached the office of the CFSL alongwith the samples. Unfortunately, for the prosecution there is not an iota of evidence to show that the CFSL form which was allegedly filled in at the time of taking of the samples, was sent in the same condition to the office of the CFSL. We do not know as to where the said particular CFSL form remained during all this period. " ( 12 ) THESE observations on all force apply to the facts of this case. In the instant case also there is not an iota of evidence led by the prosecution to prove that the CFSL form was deposited in the office of CFSL. Nor any evidence led to prove that second sample with CFSL form was deposited with the Moharar Malkhana and/or with the CFSL office. In the instant case also there is not an iota of evidence led by the prosecution to prove that the CFSL form was deposited in the office of CFSL. Nor any evidence led to prove that second sample with CFSL form was deposited with the Moharar Malkhana and/or with the CFSL office. In the absence of which safe custody of samples becomes doubtful. In the case of Safiullah Vs. State, 49 (1993) DLT 193 it was observed that :- ". . . . . . According to the High Court Rules and Orders Chapter 18 (Part-B) Clause 8 and 3 in all cases of transmission of article to the Chemical Examiner a letter of invoice giving full description of article sent should be despatched. According to Clause 11 proper custody of articles throughout the various stages of inquiry must be established and traced. " ( 13 ) IN the present case neither the road certificate has been produced nor the person who deposited the sample with CFSL form in the office of CFSL was produced. In the absence of which, to my mind, inference cannot be drawn that Sample remained intact, the benefit of this lapse on the part of the prosecution must go to the appellant. ( 14 ) ADMITTEDLY, the S. H. O. is not a signatory to any of the search memos and even Public Witness-4 admitted that the S. H. O. reached the spot after accused had already been searched. Therefore, the testimony of the S. H. O. Public Witness-2 that the search and seizure was done in his presence stands belied from the documentary evidence as well as from the testimony of Public Witness-4. Even otherwise there are material contradictions in terms with regard to recovery and weighing of the smack. According to public witness the scale was found from the room of the accused which was used for weighing the smack. Whereas according to police witness, the Investigating Officer had the scale in his pocket and the same was used to weigh the smack. This shows that Public Witness-1 Shri Shiv Kumar Sharma or the police witnesses were either not present or they had not witnessed the recovery. According to S. H. O. , Public Witness-2 he reached the spot at 9. 15 p. m. and left after first recovery was effected at 10. This shows that Public Witness-1 Shri Shiv Kumar Sharma or the police witnesses were either not present or they had not witnessed the recovery. According to S. H. O. , Public Witness-2 he reached the spot at 9. 15 p. m. and left after first recovery was effected at 10. 45 p. m. He deposited the case property in police station at 11. 00 p. m. During investigation accused made disclosure statement pursuance to which second recovery was effected from the rooftop. If the SHO had left at 10. 45 p. m. after first recovery and deposited the case property at 11. 00 p. m. in the police station, it is unbelievable that second recovery and documentation was done within 15 minutes. These timings show that second recovery could not have been effected nor the documentation done in the presence of the SHO, Public Witness-2. Ex. Public Witness-5/d indicates that special report was sent separately, but the I. O, appearing as Public Witness-7 admitted that no special report was prepared nor sent. Even Public Witness-4 could not have been a witness to the second recovery. Public Witness-5 Harlal Singh testified that Dharamvir Singh brought the Rukka Ex. Public Witness-5/a at about 10. 50 p. m. in the police Station. It took him about 30-35 minutes in writing FIR. If the time as given by Public Witness-5 is calculated it cannot be believed that Constable Dharamvir Singh was present at the spot between 10. 45 p. m. to 11. 00 p. m. when the second recovery took place. Dharamvir Singh Public Witness-4 states that SHO Public Witness-2 reached the spot second time at 11. 50 p. m. Whereas Public Witness-2 states that he deposited the case property in Police Station at 11. 00 p. m. Public Witness-3 Head Constable Prem Singh states that property which was recovered from the rooftop w as not sealed in the presence of SHO whereas SHO stated that capsules were weighed and sealed in his presence. These to my mind. are material contradictions which remain unexplained. Be that as it may, the fact remains that there was a missing link regarding the sample remaining intact and its deposit in the office of the CFSL which in itself is a sufficient ground to set aside the conviction. These to my mind. are material contradictions which remain unexplained. Be that as it may, the fact remains that there was a missing link regarding the sample remaining intact and its deposit in the office of the CFSL which in itself is a sufficient ground to set aside the conviction. ( 15 ) FOR the reasons stated above I am of the considered view that in this case prosecution has miserably failed to bring home the guilt of the accused. Accordingly the appeal is accepted and conviction and sentence is set aside.