JUDGMENT 1. - This appeal arises out of the judgment dated 22.1.96 passed by learned Special Judge, NDPS Act Cases, Jodhpur whereby the appellant has been held guilty of the offence under Section 8/18 of the NDPS Act, 1985 (hereinafter referred as `the NDPS Act') and sentenced to undergo 10 years R.I. and a fine of Rs. 1,00,000/- or in default to undergo two years R.I. 2. The prosecution case is that Shri Vikram Singh, SHO, Bhojasar received information by Mukhbir on 24.3.94 at 2.30 PM that the appellant Shri Ram is engaged in the trade of contraband opium and opium is lying in his shop. SHO, Vikram Singh reached on the shop and found the appellant standing outside, who was served the notice under section 50 of the NDPS Act and on search of the shop the appellant himself produced from his shop one polythene packet containing 220 grams of contraband opium. The sample was taken and sealed and after recording the FIR and usual investigation, a charge-sheet was submitted against the appellant. The appellant denied the charge. The prosecution produced oral and documentary evidence. The learned Special Judge, NDPS Act Cases, replied upon the testimony of PW 8 Vikram Singh, PW 4 Motisingh, PW 5 Ugamsingh and PW 7 Bhanwar Singh and recorded the conviction and the sentence as stated above. 3. I have heard learned counsel tor the appellant and the learned Public Prosecutor for the State. Learned counsel for the appellant has argued that the compliance of mandatory provision under Section 50 of the NDPS Act has not been made. The opium has not been recorded from the exclusive and conscious possession of the appellant as the shop did not belong to him. Mukhbir information taken down by Shri Vikram-Singh was not sent to the superior officer and prosecution has also failed to prove that the sample remained intact until it was delivered to the Forensic Science Laboratory, Rajasthan, Jaipur. On the other hand, learned Public Prosecutor has submitted that the offence under section 8/18 of the NDPS Act has been proved beyond reasonable doubt. The opium has been recovered from the shop in his possession and not from his person, therefore, compliance of the provision under section 50 of the NDPS Act was not required at all. On the other hand, learned Public Prosecutor has submitted that the offence under section 8/18 of the NDPS Act has been proved beyond reasonable doubt. The opium has been recovered from the shop in his possession and not from his person, therefore, compliance of the provision under section 50 of the NDPS Act was not required at all. The prosecution has also proved that the sample remained intact and was not tampered with in any manner until it was deposited with the Forensic Science Laboratory Rajasthan, Jaipur. 4. I have carefully considered the rival contentions. The appellant has challenged his conviction on numerous grounds but it is not necessary to deal with all the grounds as the appeal can be disposed of on the ground alone that whether the prosecution has established that the sample remained intact and there was no possibility of tampering with the sample. 5. The learned lower court has discussed this aspect of the case in para 18 of the judgment and it has been held that a specimen seal has been separately sent on a memo that it has not been affixed in the Malkhana register maintained in the Police Station. It has been held that the SHO, wrote a letter Ex.P-11 to Superintendent of Police, Jodhpur for sending a sample Mark A to the FSL Jaipur and with this letter the memo of impression seal in triplicate has also been sent to Superintendent of Police Office. The SP also forwarded the specimen seal letter with the sample by its letter Ex.P-9 to FSL, Jaipur. The learned lower court has also observed that the FSL report Ex.P 14 shows that seal on the sample mark A was tallied with the impression seal and it was found intact. Therefore, the learned court has come to the conclusion that impression seal was sent to the FSL, Jaipur of the seal by which the sample were sealed at the time of search and seizure. The learned lower court has also dealt with the testimony of other relevant witnesses who were involved in keeping the sample in the Malkhana and carrying the sample to SP Office and ultimately to FSL, Jaipur. The learned lower court has also dealt with the testimony of other relevant witnesses who were involved in keeping the sample in the Malkhana and carrying the sample to SP Office and ultimately to FSL, Jaipur. According to the learned lower court it is proved that the sample remained intact in the Malkhana thereof until it was deposited in FSL, Jaipur for chemical analysis and the possibility of tampering with the sample was ruled out. 6. The learned counsel for the appellant has contended that it is not proved that the specimen seal memo was prepared on the spot at the time of search and seizure of the alleged contraband opium and therefore prosecution version is not reliable that any seal impression memo was sent to the SP Office and to FSL, Jaipur. It is, therefore, contended that it has not been proved that the sample received in FSL Jaipur was bearing the same seal which was put at the time of alleged search and seizure. Learned Public Prosecutor has supported the appreciation of evidence in this respect and the findings of the lower court. 7. I have perused the statements of witnesses relevant to this controversy. Vikram Singh has not deposed that specimen seal memo was prepared at the time of search and seizure and while preparing the seizure memo. He has stated that the specimen seal was put on Ex.P-2, seizure memo. He has not stated that while sending this sample through letter Ex.P-11 specimen letter/memo was also sent to the SP Office. EX P-11 shows that at enclosure no. 3 memo impression seal was sent alongwith the sample. Baburam PW 6 has stated that he took the sample with forwarding letter and other enclosed papers to the office of SR Jodhpur. Virendra Singh PW 3 has stated that he gave the packet to Baburam for carrying it to FSL, Jaipur with the forwarding letter alongwith other papers. The forwarding letter is Ex.P-9 which shows that specimen seal letter was sent to the FSL, Jaipur. The learned lower court, has, therefore, given the finding that specimen seal has been forwarded to FSL, Jaipur but in my opinion the manner in which the above impression seal letter has been sent is not sufficient to establish that the sample sent to FSL, Jaipur was bearing the same seal which was put at the time of search and seizure. It is not clear as to when the above specimen letter was prepared by Vikram Singh or at the SP Office because there is no evidence as already observed even in the statement of Vikram Singh PW 8 that any specimen seal memo was prepared at the relevant and important time of search and seizure of the alleged contraband opium. Specimen seal memo is always prepared at the time of search and seizure duly signed by the Motbirs and search and seizure to verify that the seal whose in the specimen seal memo has been put on the sample and the packet, the remaining article has been sealed. But no such specimen seal memo has been prepared in this case and there is no specimen seal memo on the record for the perusal of the court for satisfying that specimen; seal memo has been sent to the FSL, Jaipur. In the absence of specimen memo on the record it is not satisfactorily proved that the seal on the sample which was tallied at FSL, Jaipur was the same which was put on the sample at the time of search and seizure. Learned Public Prosecutor tried to clarify that the seal has been affixed on Ex.P-2 by which the sample was sealed but it does not help the prosecution case because seizure memo Ex.P-2 has not been sent to FSL, Jaipur so that it may be concluded that it was the specimen seal which was tallied with the seal on the sample. There is no seal on the malkhana register also. Officer making his search and seizure should prepare specimen seal memo at the time of taking and sealing the sample bearing the signature of Motbirs witnessing search and seizure taking out the sample affixation of the seal on the sample. Such specimen seal memo should be sealed and should be sent in sealed condition to FSL, Jaipur alongwith sample and specimen seal memo, should be submitted in the court also to prove that the specimen seal memo was prepared at the time of search and seizure and has been sent in sealed envelope to the FSL, Jaipur. 8. Such specimen seal memo should be sealed and should be sent in sealed condition to FSL, Jaipur alongwith sample and specimen seal memo, should be submitted in the court also to prove that the specimen seal memo was prepared at the time of search and seizure and has been sent in sealed envelope to the FSL, Jaipur. 8. In view of the above evidence on record which have been discussed above I am of the opinion that the specimen seal letter sent alongwith forwarding letter with the sample to SP Office and then to FSL, Jaipur does not establish that the sample was bearing the same seal which was put on it at the time of search and seizure as it is not established as to when specimen letter was prepared during the course of investigation. Therefore, the statements of prosecution witnesses about remaining the seal on the sample intact does not complete the link in the absence of specimen seal memo. The possibility of tampering with the sample has not been established beyond reasonable doubt, the material of the sample, i.e. remaining opium, cover and specimen seal letter which have been returned by the FSL, Jaipur have also not been produced in the court so that it may satisfy itself about the seal on the sample. I am, therefore, in agreement with learned counsel for the appellant that it cannot be said that it was the same material in the sample which was alleged to have been taken at the time of search and seizure. Therefore, the FSL report Ex-P14 cannot form the basis for conviction of the appellant of the charge framed against him. The offence under Section 8/18 of NDPS Act has not been proved against the appellant beyond reasonable doubt. I do not find it necessary to deal with other grounds challenging the impugned judgment. 9. Consequently, the appeal is hereby accepted. The impugned judgment and order of sentence dated 22.1.96 passed by learned Special Judge, NDPS Act Cases, Jodhpur, is hereby set aside and the appellant Shriram is acquitted of the offence under Section 8/18 of NDPS Act 1985. He is dirqpted to be released forthwith unless required in any other case.Appeal allowed - Impugned judgement and sentence set aside. *******