JUDGMENT 1. 1. The appellants have challenged their conviction and sentence under Section 8/18 of NDPS Act, 1985 passed by learned Addl. Sessions Judge, No. 1, Chittorgarh in Sessions Case No. 57/95 by his judgment dated 19.1.1996. The appellants have been sentenced to undergo 10 years R.I. and a fine of Rs. 1,00,000/- each or in default to undergo two years S.I. The appellant Bhoma and co-accused Sarwan has been acquitted of the offence Under Section 8/15 of the NDPS Act. Another co-accused Heera has been acquitted of the charge Under Section 8 Read With Section 18 of the NDPS Act. 2. Briefly stated, the prosecution case is that Dy. S.P., Kapasan PW 11 Idanaram received Mukhbir information on 6.4.1992 at Police Station Rashmi at 2.30 a.m. against the appellants about opium purchased by them which will be taken to their village by them during the night, this information was taken down and a copy was forwarded to Superintendent of Police, Chittorgarh. Dy. S.P. Idanaram with his party reached Morvi. At about 6.30 a.m. the appellants reached there and they were asked to give their search and notice Under Section 50 of the NDPS Act was served upon them. The appellants gave their consent to search by Dy. S.P. Idanaram and 800 grams contraband opium was recovered from appellant Girdhari in a polythene packet stitched in a cloth and carried in a bag in his hand. Similarly, 500 grins, of contraband opium was recovered from the left side of the pocket of white 'banian' of the appellant Mahram kept in a polythene packet, 100 gram contraband opium was recovered from the left packet of the `Baktri' of appellant Bhoma and 4.00 Kg. Doda Power was also recovered in a `Dhoti' put on the shoulder of appellant Bhoma. All the articles were seized and two samples weighing 30 grams from each article was taken and sealed marks A, C and E. Remaining portion of the articles was sealed separate packet mark B, D & F. These samples were sent to Forensic Science Laboratory, Jaipur and as per the report it contained the contraband opium, challan was submitted against the appellant and other co-accused persons. 3. 3. The learned counsel for the appellants has argued that prosecution has utterly failed to prove that the samples remained intact and sealed throughout the time from the stage of the recovery of the alleged articles till these were deposited in FSL, Jaipur. The prosecution has not ruled out reasonable probability of tampering with the samples. The link evidence is not complete from the side of the prosecution to establish that the article in the sample was the same which was allegedly recovered from the appellants. It is contended that in the above circumstances, Forensic Science Laboratory, report cannot be connected with the alleged recovery of the articles said to be contraband opium. Learned Public Prosecutor has supported the judgment and it has been argued that FSL report Ex. P/30 mentions that the seal on the samples was compared with the specimen seal forwarded and it tallied accordingly. Learned Public Prosecutor has further argued that FIR Ex. P/20 and P/19 established that the articles were received in sealed condition in the Police Station and were kept in Malkhana in sealed condition. 4. Learned lower Court has discussed in the judgment in para 8 that PW 11 Idanaram has stated that sealed packets of the samples and remaining articles were sent through Narayan Singh to Police Station Rashmi and Narayan Singh PW 7 has supported it and PW 8 Awad Singh has deposed to have kept the articles in the Malkhana. PW 9 Barkat Hussain took the sealed samples from Awad Singh and deposited at FSL, Jaipur in sealed condition. In view of the above evidence on record, the learned trial Court held that the samples remained sealed and intact throughout the period till it reached to FSL, Jaipur. 5. I am of the view that some important aspect of the case has not been considered by the learned lower Court. Though Narayan Singh has stated that he brought sealed packets at Police Station, Rashmi and Awad Singh has deposed that he received the sealed packets and kept them in Malkhana. But curiously enough, the prosecution has not produced the copy of the Malkhana register and did not get it exhibited to prove that the sealed packets were kept in Malkhana after making proper entries in the Malkhana register. This fact is also not established that any seal impression was put against the entries of these packets in the Malkhana register. But curiously enough, the prosecution has not produced the copy of the Malkhana register and did not get it exhibited to prove that the sealed packets were kept in Malkhana after making proper entries in the Malkhana register. This fact is also not established that any seal impression was put against the entries of these packets in the Malkhana register. It was all the more necessary because Awadsingh PW 8's evidence is of no use because he has stated in the chief examination that he does not remember number of packets brought by Narayan Singh ASI PW 7.1 am unable to understand as to why the Malkhana register entry has been withheld by the prosecution. From the above statement of Awad Singh it is not proved that how many articles were brought by Narayan Singh ASI to be kept in Malkhana. Barkat Hussain has deposed that he received 6 packets in sealed condition from Head Constable Awad Singh from Police Station Rashmi and carried to S.P. Office, Chittorgarh. Thereafter he obtained forwarding letter Ex. P/16 and he went to FSL, Jaipur and deposited there 6 sealed packets alongwith a forwarding letter. This fact also should have been proved by the prosecution by producing the copy of the Maikhana register in which the receipt of this witness must have been taken at the time of delivering the sealed packets to him. In the cross-examination, this witness categorically states that the was given only sealed packets and forwarding letter. Narayan Singh PW 7, Awadsingh PW 8 and Barkat Hussain PW 9 do not state about any seal impression if any taken alongwith the seal packets to FSL, Jaipur. 6. I have perused the forwarding letter Ex. P/16 which shows that it is concerning sealed packets `G' and `I' only i.e. samples of Doda power. The prosecution has not produced and exhibited any other forwarding letter about carrying the sealed samples in question and forwarding of seal impression memo alongwith the sample to FSL, Jaipur. Learned Public Prosecutor has argued that the seal impression sample has been forwarded to the FSL, Jaipur as there is clear mention of this fact in FSL report Ex. P/30. But the prosecution has failed to establish as to which seal impression was sent to FSL, Jaipur. There is one specimen seal impression memo on record exhibited as Ex. P/28. Learned Public Prosecutor has argued that the seal impression sample has been forwarded to the FSL, Jaipur as there is clear mention of this fact in FSL report Ex. P/30. But the prosecution has failed to establish as to which seal impression was sent to FSL, Jaipur. There is one specimen seal impression memo on record exhibited as Ex. P/28. There is no evidence on record that such seal impression memo as Ex. P/28 was sent to FSL, Jaipur alongwith samples. 7. In view of the above discussion, it is not at all clear that whether the seal impression, if at all received by FSL, Jaipur was the same as exhibited Ex. P/28 or was some other seal impression. In this way, there is lack of complete link evidence to establish that the samples remained sealed and intact till these were deposited in FSL, Jaipur. The reasonable probability to tampering with the sample has not been ruled out. In this view of the matter it is not established that the same article allegedly recovered from the possession of the appellants was sent and examined in FSL, Jaipur. Therefore, on the basis of such FSL report, I do not consider it safe to hold that the articles seized from the possession of the appellants was contraband was contraband opium. Therefore, I am clearly of the view that the prosecution has failed to prove the charge Under Section 8/18 of NDPS Act and the appeal should be accepted on this ground alone. 8. In the result, the appeal is hereby accepted. The impugned judgment and order of sentence dated 19.1.1996 passed by the learned Addl. Sessions Judge, No. 1, Chittorgarh is hereby set aside. Appellants Girdhari, Mahram and Bhoma are hereby acquitted of the offence Under Section 8/18 of NDPS Act, 1985. Appellants shall be released forthwith, if not required in any other case.Appeal Allowed. *******