JUDGMENT 1. - The appellant has filed this appeal under section 374(ii) Cr.P.C. against the learned Sessions Judge, Pratapgarh dated 17.5.1996 whereby the learned Judge has convicted the appellant for the offence under section 8 r/w Section 18 of the Narcotic Durgs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and awarded 10 years rigorous imprisonment together with a fine of Rs. I lac and in default of payment of fine to undergo two years rigorous imprisonment. 2. Bhagwat Singh PW 11 while he was posted as SHO, Nikumb, got a secret information that one Mohan Gairi would be proceeding from Somawas to Sadulkhera with contraband opium. He recorded the above information in Ex. P/4 and proceeded in search of the above person along with ASI Laxmilal, Balwant Singh and Kalyan Singh. They lay in wait near the well of Lal Singh. At about 8.00 p.m. they spotted a person coming on a bicycle from the side of Somawas and proceeding towards Sadulkhera. They intercepted the above person and saw a bag hanging from the handle of the bicycle. Shri Bhagwat Singh asked the identity of the above person in presence of motbir witnesses Lal Singh and Dhanna. He gave his name to be Mohan S/o Vain Gairi resident of Somawas. Bhagwat Singh then conveyed the accused his intention to search the latter and asked about his option as to whether he would like to be searched by a Gazetted Officer or a Magistrate. The accused expressed his willingness to be searched by Bhagwat Singh. Thereupon Bhagwat Singh took out the bag and found a aluminium tiffin. He opened the tiffin in presence of the above motbir witnesses. He found a plastic bag containing some semi liquid commodity. Lal Singh and Dhanna smelled and tasted the above commodity and told that it was opium. Then Bhagwat Singh deputed Balwant Singh to fetch weights and scales for weighing the above commodity. Balwant Singh brought the above goods. On weighment the commodity was found to be 450 gms. Bhagwat Singh took 30-30 gms. of the above commodity for preparing two samples in match boxes. The above samples were wrapped and sealed. The remaining commodity was also sealed in presence of the above motbir witnesses. The aluminium tiffin, bicycle and the bag were also seized. On weighment the commodity was found to be 450 gms. Bhagwat Singh took 30-30 gms. of the above commodity for preparing two samples in match boxes. The above samples were wrapped and sealed. The remaining commodity was also sealed in presence of the above motbir witnesses. The aluminium tiffin, bicycle and the bag were also seized. Since there was a prima facie case of possession of :contraband opium, Shri Bhagwat Singh arrested the accused for offence u /s. 8/18 of the Oct. The notice issued to the accused under section 50 is Ex. P/2. The site plan is Ex. P/5. He deposited the above articles in the malkhana. Thereupon he wrote a letter Ex. P/9 to the S.P. for sending the sample to the Forensic Science Laboratory. The specimen of the seal with which he sealed the above articles is Ex. P/16. The report of the Forensic Science Laboratory Ex. P/11 was received. According to the above report the chemical examination of the samples revealed that the packet marked A-1 gave positive tests for the chief on constituents of the coagulated juice of opium poppy having 9.49 morphine. After collecting the above incriminating evidence against the accused the challan was filed 'before the learned Sessions Judge, Pratapgarh on 2.5.1993. The learned Sessions Judge framed a charge under section 8 r/w Section 18 of the Act against the accused. The plea of the accused was recorded and he pleaded not guilty. The prosecution examined Bhagga PW 1, Lakhma PW 2, Laxmilal PW 3, Lal Singh PW 4, Dhanna PW 5, Veniram PW 6, Kalyan Singh PW 7, Devilal PW 8, Babria PW 9, Bahadur Singh PW 10, Bhagwat Singh PW 11 and Yashwant Singh PW 12. The statement of the accused was also recorded under section 313 Cr.P.C. The accused denied all the allegations of the prosecution and alleged he had enmity with Lal Singh. Lal Singh, in complicity with Bhagwat Singh, initiated this false case against him. The accused examined Bhola DW 1 to prove this defence version. 3. Learned Special Judge (Sessions Judge, Hanumangarh), after perusal of the prosecution evidence and appreciation of the rival contentions raised before him, found the offence under section 8 r/w Section 18 of the Act against the accused proved beyond all reasonable doubt. He believed the prosecution version that the above contraband opium was recovered from the accused by Bhagwat Singh PW 11. He believed the prosecution version that the above contraband opium was recovered from the accused by Bhagwat Singh PW 11. Bhagwat Singh PW 11 was an independent witness and there was no reason that he would falsely implicate the accused. A plea was also raised that while taking search of the person of the accused, compliance of Section 50 of the Act was not made. Another ground of challenge of the prosecution was that no compliance was also made of Section 42 of the Act. Learned Special Judge examined the above contentions and found that the SHO gave notice Ex. P/2 to the accused. The statement of PW 1, is sufficient to prove that the SHO gave fair and sufficient notice to the accused to exercise option of being searched either by a Magistrate or a Gazetted Officer and the accused showed his willingness to the searched by the SHO himself. He held that in the facts and circumstances of the case the provisions of Section 43 would be applicable. It was also strenuously contended before the learned Special Judge that the prosecution failed to prove link evidence to show that the sample was taken from the contraband commodity allegedly recovered from the possession of the accused and it was sent in sealed condition to the Director, Forensic Science Laboratory, Jaipur. In this connection the testimonies of Bhagwat Singh PW 11, Yashwant Singh PW 12 and Kalyan Singh PW 7 were examined and it was held that the prosecution produced complete and reliable link evidence to bring home the offence against the accused. 4. I have heard learned counsel for the accused-appellant and the learned Public Prosecutor for the State. 5. Learned counsel for the accused-appellant has very vehemently challenged the conviction and sentence of the accused-appellant. He has contended that the prosecution miserably failed to prove compliance of the mandatory provisions contained in Sections 42 & 50 of the Act. The SHO even after receipt of the information regarding the transportation of contraband opium did not inform his higher officer of the steps he was going to take against the accused. Though the SHO served notice Ex. P/2 on the accused, it has not been proved that any substantial compliance with the provisions contained in Section 50 of the Act was made. Though the SHO served notice Ex. P/2 on the accused, it has not been proved that any substantial compliance with the provisions contained in Section 50 of the Act was made. The accused was not given notice of the facts that he had a right to insist for the search being made either by a Magistrate of by a Gazetted Officer. Making aware of this right is a fundamental requirement of Section 50 of the Act. Merely giving a notice would not suffice. It was the duty of the SHO to have proved this fact by making a positive statement which could inspire confidence. He has placed reliance on the following cases:- 6. Mohinder Kumar v. State, 1995 Cr.L.J. 2074 , Jacub Lawnson v. State, 1996(3) Crimes 223 and Murlidhar Soni v. State of Rajasthan, S.B. Criminal Appeal No. 24/9E judgement dated 6.3.1997 . 7. It was next contended by the learned counsel that the Investigating Officer was in possession of the information that the accused would be proceeding from Somwas to Sadulkhera with contraband opium. In such a situation the provisions of Section 42 of the Act come into play and It was mandatory for the Investigating Officer to have taken down the information in writing under sub-sec. (1) and he should have also recorded that search warrant of authorisation cannot be obtained without affording opportunity for concealment of evidence orfacility for the escape of an offender. Under sub-sec. (2) it is further necessary that he shall send forthwith a copy thereof to his immediate superior official. In the instant case though the SHO recorded the information in Ex. P17 but he omitted to write the fact that in the facts and circumstances of the case search warrant could not be obtained. Bhagwat Singh PW 11 also mentioned in Ex. P/7 that a copy of Ex. P/7 has been forwarded with Banshilal to the Circle Officer, Chhoti Sadri. Banshilal has, however, has not been produced to prove the above fact. hence the SHO has violated the provisions contained in Section 42 of the Act. 8. Another attack made by the learned counsel for the accused-appellant is that according to seizure memo Ex. P/3 out of the alleged contraband opium found in possession of the accused, two samples of 30 gms each were taken, wrapped and sealed. hence the SHO has violated the provisions contained in Section 42 of the Act. 8. Another attack made by the learned counsel for the accused-appellant is that according to seizure memo Ex. P/3 out of the alleged contraband opium found in possession of the accused, two samples of 30 gms each were taken, wrapped and sealed. The weight of the sample eventually sent to the Director, Forensic Science Laboratory, Jaipur was 30 gms. But according to the report of the Forensic Science Laboratory the weight of the sample received there was only 24 gms. The prosecution has not been able to explain this material discrepancy in weight of the sample. Along with this the learned counsel argued that a perusal of the prosecution evidence would show that no link evidence to prove that the seal affixed on the sample at the time of seizure remained intact till it reached the office of the Forensic Science Laboratory. While depositing the samples in the malkhana register, the SHO did not deposit the specimen impression of the seal with which the samples were sealed and there is also no evidence that he forwarded the specimen impression of the seal along with the sample to the SP, Chittorgarh. In the same link the prosecution has not produced that the SP, Chittorgarh even forwarded the specimen seal impression to the Director, Forensic Science Laboratory, Jaipur along with the sample. Learned counsel has placed reliance on the following cases:- 9. Sureshlal Gupta v. State of Rajasthan, 1990 RCC 121 , Sukha & Anr. v. State, 1991 RCC 383 , Bheru Singh v. State of Rajasthan, 1995 Cr.L.J. (Raj.) 94 , Gulam Mohd. v. State, 1996(3) Crimes 272 , Mohinder Kumar v. State, 1995 Cr.L.J. 2074 and Jacub Lawman v. State, 1996 (3) Crimes 223 . 10. Learned Public Prosecutor has supported the judgment of the learned Special Judge. 11. I have considered the rival contentions. First, I will deal with the argument of the learned counsel for the appellant regarding the discrepancy of the weight of the sample. Admittedly as per seizure memo Ex. P/3 two samples of 30 gms. each were taken and placed in match boxes and thereafter they were wrapped and sealed. The seizure memo is dated 18.1.1993. According to the report of the Forensic Science Laboratory Ex. P/11 the weight of the sample on 12.5.1994 was found to be only 24 gms. Admittedly as per seizure memo Ex. P/3 two samples of 30 gms. each were taken and placed in match boxes and thereafter they were wrapped and sealed. The seizure memo is dated 18.1.1993. According to the report of the Forensic Science Laboratory Ex. P/11 the weight of the sample on 12.5.1994 was found to be only 24 gms. Learned Public Prosecutor has explained the discrepancy by submitting that while taking the weighment the SHO used unscientific weights and scales. Hence some discrepancy regarding weight could remain. Secondly, when the sample was wrapped and sealed it was in a semi-solid condition and with the lapse of time the liquid contained evaporated. In the instant case the discrepancy is of 6 gms. If the prosecution can convincingly explain the discrepancy the same may be ignored. On the contrary, if the prosecution cannot explain the same, a doubt is created whether the sample remained in a sealed condition or not because probability of tampering with the sample cannot be ruled out. The explanation furnished by the learned Public Prosecutor does not appear to be convincing. When weighment was taken weights and scales were used and the discrepancy at the most could be of a gram or two only. It cannot be more than that. It is also possible that with the lapse of time the weight of the sample may evaporate but the evaporation cannot be to such an extent because the sample was first kept in the match box then it was wrapped with a cotton cloth and then seal was affixed. Hence it is not possible that such difference could occur. Hence possibility of tampering with the seal cannot be ruled out. Even if any doubt lingers, benefit is to be given to the accused. 12. Now I may deal with the compliance of Section 42 of the Act. Hence it is not possible that such difference could occur. Hence possibility of tampering with the seal cannot be ruled out. Even if any doubt lingers, benefit is to be given to the accused. 12. Now I may deal with the compliance of Section 42 of the Act. Section 42(1) of the Act provides that any empowered officer, if he has reasoned to believe from the personal knowledge or from the information given to him by any person and taken down in writing, that any narcotic drug or psychotropic substance, in respect of which offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or sealed in any building, conveyance or enclosed place, may, between sun rise and sun set, enter into and search any such building, conveyance or place. Sub-sec. (2) of Section 42 of the Act provides that where an officer takes down any information in writing under sub-sec. (1) or records his belief under the provisions thereto, he shall forthwith send a copy thereof to his immediate superior official. In this connection the prosecution evidence may be scanned. The information was recorded by Bhagwat Singh PW 11 in Ex. P/17. Ex P/17 mentions that the SHO Bhagwat Singh PW 11 received secret information which he believed to be reliable. However the SHO mentioned in Ex. P/17 that in the facts and circumstances of the case obtaining of a search warrant was not possible. Be that as it may, he has not proved that he forwarded the information to his superior official. Bhagwat Singh PW 11 has stated that he sent the information to the Circle Officer, Chhoti Sadri through Banshilal. The same fact was mentioned in Ex. P/17. Except the above mention there is no proof that Bhagwat Singh PW 11 furnished the above information to the Circle Officer, Chhoti Sadri. He clearly admitted in his statement that he send the information in writing to the Circle Officer but he did not received any receipt. Thus no receipt was obtained. Banshilal has also not been produced to prove this fact. In my opinion by a mere mention in Ex. P/17 that the above information was transmitted to the Circle Officer, Chhoti Sadri cannot prove this fact because the primary evidence which was available has been withheld. Thus no receipt was obtained. Banshilal has also not been produced to prove this fact. In my opinion by a mere mention in Ex. P/17 that the above information was transmitted to the Circle Officer, Chhoti Sadri cannot prove this fact because the primary evidence which was available has been withheld. Hence there is no compliance of Section 42 of the Act. 13. Regarding the compliance under section 50 of the Act the statement of Bhagwat Singh PW 11 is to the effect that he gave notice Ex. P/2 to the accused. There is nothing to disbelieve the statement of Bhagwat Singh. This fact has been recorded in Ex. P/2 that the accused was given the option to get the search made by a Gazetted Officer of a Magistrate and that he expressed his willingness to be searched by the SHO. Hence violation of the provisions of Section 50 has not been proved. 14. Regarding the seal and link evidence I may refer to the testimonies of the relevant witnesses. Bhagwat Singh PW 11 has stated that he, after having made the search and having found 450 gms. of contraband opium took the samples of 30 gms. each and wrapped and sealed the same in match boxes and marked the samples as A-1 and A-2. He further sealed the remaining opium in similar manner and prepared the seized memo. He deposited the above articles in the malkhana and prepared a memo Ex. P/19. The copy of the malkhana register is Ex. P/18. The specimen seal of the seal with which the samples were sealed is Ex. P/16. Yashwant Singh PW 12 was incharge of Malkhana on 18.1.1993. He has stated that the SHO deposited the samples and other articles in the malkhana in sealed condition. He made the relevant entries in the malkhana register. The copy whereof is Ex. P/18. He further stated that he gave the above sample to constable Kalyan Singh on 21.1.1993. The article remained intact in his custody till it was handed over to Kalyan Singh for depositing the same in the Forensic Science Laboratory. He admitted that he did not obtain the specimen impression of the seal on the malkhana register. He has also not stated that the SHO handed over a separate paper or memo containing the specimen impression of seal along with the malkhana articles. He admitted that he did not obtain the specimen impression of the seal on the malkhana register. He has also not stated that the SHO handed over a separate paper or memo containing the specimen impression of seal along with the malkhana articles. Kalyan Singh PW 7 has stated that on 21.1.993 he took sample from Yashwant Singh along with relevant papers. He then came to the office of the S.P. Chittorgarh and obtained a forwarding letter in the name of the Forensic Science Laboratory and deposited the above sample and papers with the Forensic Science Laboratory on 22.1.1993. Till then the sample remained with him in sealed condition. 15. The SHO wrote a letter Ex. P/9 to the SP, Chittorgarh stating the fact that the samples were taken and sealed and are to be sent for chemical examination to the Forensic Science Laboratory. It may stated that in Ex. P/9 there is no mention that along with the samples he sent the specimen impression of the seal to the SP. The SP, Chittorgarh wrote a forwarding letter Ex. P/10 to the Director, Forensic Science Laboratory. In Ex. P/10 the SP, Chittorgarh wrote that the samples marked A-1 along with other documents was being forwarded to the Forensic Science Laboratory along with the specimen impression of the seal. The report Ex. P/11 shows that the seal affixed on the sample tallied with the specimen impression of seal forwarded along with the sample. A perusal of the Ex. P/9 shows that the SHO did not forward the specimen impression of the seal to the SP, Chittorgarh. There is a mention in Ex. P/10 that the SP, Chittorgarh forwarded to the Forensic Science Laboratory. However it is not clear how he could forward specimen impression of the seal when the same was not sent to him by the SHO. It is, therefore, doubtful whether the SHO ever sent any specimen impression of the seal to the SP and the SP sent the same to the Forensic Science Laboratory. I have already stated that the SHO did not deposit the specimen seal impression with the incharge of the malkhana and no specimen seal impression was obtained on the entry of the articles deposited in the malkhana. It is, therefore, very doubtful whether the specimen seal impression which are contained in Ex. P/16 were ever forwarded to the Forensic Science Laboratory. It is, therefore, very doubtful whether the specimen seal impression which are contained in Ex. P/16 were ever forwarded to the Forensic Science Laboratory. The link evidence is missing. Moreover the discrepancy regarding weight is suggestive of tampering with the seal. Hence the prosecution has failed to produce link evidence proving the fact that the sample as sealed at the time of seizure remained as such till it reached the office of the Forensic Science Laboratory. 16. For the above reasons, the offence against the accused has not been proved beyond reasonable doubt. I, therefore, accept the appeal, set aside the conviction and sentence of the accused. He is acquitted of the offence under section 8 r/w Section 18 of the Act, and be set at liberty forthwith if not required in any other case.Appeal allowed. *******