Judgment S. C. MITAL, J. ( 1 ) APPELLANT Heera Lal has preferred this appeal against the judgment dated 25-2-95 recorded by learned Additional Sessions Judge No. 1, Chittorgarh in Sessions Case No. 122/94, whereby he has been convicted under S. 8/18 Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act, 1985) and sentenced to 10 years rigorous imprisonment and Rs. one lack fine, in default 21/2 years rigorous imprisonment. ( 2 ) SHRI Vijendra Kumar Vyas, S. H. O. , Chittorgarh (P. W. 6) received secret information on 13-4-94 at 9. 00 a. m. that a person will come from Ochhadi and will proceed on foot towards the fields and to Jodhpur with opium wrapped on his stomach. This information was reduced into writing in Roznamcha Aam Ex. P10 and a copy was forwarded to Superintendent of Police, Chittorgarh. S. H. O. , Kotwali, Chittorgarh, thereafter proceeded on jeep with his party and two motbirs Ibrabim (P. W. 1) and Chunnilal (P. W. 2) to Nimbahera Road and took positions. The appellant came from the direction of Ochhadi at about 10. 15 a. m. , who was stopped by the raiding party and he was informed about the source information of opium in his possession. The S. H. O. also informed the appellant of his right to be searched in the presence of a Magistrate or a Gazetted Officer. The appellant gave his consent to be searched in the presence of motbirs by S. H. O. Vijendra Vyas. The prosecution case is that 700 gms. of contraband opium was recovered in a white polythene bag tied in his dhoti. Two samples weighing 30 gms. each were taken separately and sealed on the spot, seizure memo Ex. P2 and specimen seal memo Ex. P3 were also prepared on the spot, F. I. R. Ex. P17 was lodged and a case was registered against the appellant and investigation was conducted. After receiving the report from the Forensic Science Laboratory and completion of the investigation charge-sheet was submitted against the appellant who was charged for the offence under S. 8/18 of the Act, 1985. After trial the learned Additional Sessions Judge No. 1, Chittorgarh convicted and sentenced the appellant as stated above. ( 3 ) I have heard the learned counsel for the appellant and the learned Public Prosecutor and carefully perused the evidence on record. After trial the learned Additional Sessions Judge No. 1, Chittorgarh convicted and sentenced the appellant as stated above. ( 3 ) I have heard the learned counsel for the appellant and the learned Public Prosecutor and carefully perused the evidence on record. ( 4 ) THE first contention raised by the learned counsel for the appellant is that the prosecution has failed to prove that mandatory provision under S. 50 of the Act, 1985 was complied with before taking search of the appellant. My attention is drawn to Ex. P1 memo prepared about the compliance of the mandatory provision under S. 50 of the Act, 1985 and argued that there is over writing in the time 10. 15 a. m. In the contents also, it is shown that the option was given to the appellant for the presence of police Gazetted Officer instead of an independent Gazetted Officer. There is discrepancy in the statements of the witnesses about the compliance of this provision. Ram Gopal, Head Constable (P. W. 5) has stated that the appellant was informed for taking search if he so required in the presence of a Gazetted Officer. But this witness does not depose about the option of the presence of a Magistrate at the time of search of the appellant. Vijendra Kumar C. I. , Chittorgarh (P. W. 6) states that the appellant was informed about his right to be searched in the presence of a Gazetted Officer or a Magistrate, which is contradictory to the statement of P. W. 5 Ram Gopal. Whereas Bhanwar Singh (P. W. 11) has given a different version when he deposes that the appellant was informed by C. I. for taking search if he so required before a Magistrate or some competent officer. He does not state about the option given for the presence of a Gazetted Officer. ( 5 ) THE learned Public Prosecutor has argued that there is no ground to disbelieve the statement of Vijendra Kumar (P. W. 6) authorised officer, which is fully supported by memo Ex. P1 prepared under S. 50 of the Act, 1985. Appellant has in his own hand-writing given his consent to take search by the authorised officer i. e. Shri Ram Gopal. ( 6 ) I am inclined to accept the contention of the learned Public Prosecutor because Ex. P1 prepared under S. 50 of the Act, 1985. Appellant has in his own hand-writing given his consent to take search by the authorised officer i. e. Shri Ram Gopal. ( 6 ) I am inclined to accept the contention of the learned Public Prosecutor because Ex. P1 and the statements of the above witnesses establish that compliance of S. 50 has been made by informing the appellant of his right to be searched before a Magistrate or a Gazetted Officer. Whatever the discrepancy in the statements of the witnesses have been pointed out by the learned counsel for the appellant is immaterial and it is only due to the expression in stating a fact by the witnesses. I see no good reason to discard the statement of Vijendra Kumar (P. W. 6) and the memo Ex. P1. In view of the above discussion, the contention regarding non-compliance of the mandatory provision of S. 50 is not tenable. ( 7 ) IT is next argued that the prosecution has failed by cogent and reliable link evidence that the samples remained intact and sealed till it was handed over to the Forensic Science Laboratory, Jaipur for analysis. ( 8 ) I have considered the statements of Bhanwar Lal (P. W. 7), Jagdish Chandra (P. W. 8), Jamna Lal (P. W. 9), and Vijendra Kumar (P. W. 6 ). Vijendra Kumar (P. W. 6) has deposed about taking of samples after search, but he does not further state that the sample was deposited by him in the Mal Khana. However, Bhagwan Lal, Head Mohrir (P. W. 7) has stated that two sealed samples were received by him from Vijendra Kumar Vyas in the Mal Khana, which were entered in Mal Khana register at S. Nos. 4 and 5 dated 13-4-94. The Mal Khana Register is Ex. P14. Jagdish Chandra (P. W. 8), constable took the samples from Mal Khana for taking these to Forensic Science Laboratory, but Ex. P14 does not bear his signatures to this effect. There is some over writing in Ex. P14, which has been admitted by Bhagwan Lal (P. W. 7) in respect of date of the occurrence and Section of the offence. Ex. P14a is purported to be true copy of Mal Khana Register Ex. P14, but there is no correction of the date of the occurrence which has been shown in the copy Ex. P14, which has been admitted by Bhagwan Lal (P. W. 7) in respect of date of the occurrence and Section of the offence. Ex. P14a is purported to be true copy of Mal Khana Register Ex. P14, but there is no correction of the date of the occurrence which has been shown in the copy Ex. P14a as 13-3-94, which shows that when the copy was submitted with the challan in the court, there was no correction of this date as 13-4-94. Evidently this correction has been made subsequently and before bringing the Mal Khana Register in the court. The name Jagdish Chandra has been mentioned in the Mal Khana for handing over the samples to him for taking to Forensic Science Laboratory, Jaipur. The above fact may not be given much importance, but it creates suspicion that the impression of the specimen seal is found affixed in the Mal Khana Register Ex. P14, but there is no indication of this fact in the copy Ex. P14a filed in the court. Obviously this shows that when the Ex. P14a was prepared for presenting it with the challan, there was no specimen seal impression in the Mal Khana Register otherwise it would have been so indicated in the copy Ex. P14a also. It seems as well as it cannot be ruled out that the impression of the specimen seal might have been affixed at some later stage and not at the time of handing over the samples in the Mal Khana in the custody of the Mal Khana Incharge and while making the entry in the Mal Khana Register in this regard. The prosecution has failed to give satisfactory explanation about this material aspect of the link evidence. The sample analysed by Forensic Science Laboratory, Rajasthan, Jaipur contained 25 gms. opium, whereas the sample of 30 gms. was taken. The learned Public Prosecutor submitted that the sample must have dried up and weight could be less by 5 gms. which is negligible in quantity. Therefore this cannot give rise to suspicion that the sample might have been tampered with. However, the learned counsel for the appellant contended that out of the total weight of 30 gms. this deficiency of 5 gms. cannot be ignored as negligible. which is negligible in quantity. Therefore this cannot give rise to suspicion that the sample might have been tampered with. However, the learned counsel for the appellant contended that out of the total weight of 30 gms. this deficiency of 5 gms. cannot be ignored as negligible. ( 9 ) THE learned counsel for the appellant referred to 1991 Cr LR (Raj) 51 (Chatra Ram v. The State of Rajasthan), 1995 Cr LR (Raj) 762 (Annu Khan v. State of Rajasthan), 1990 RCC 121 (Suresh Lal Gupta v. State of Rajasthan) and 1992 RCC 226 (Deva v. State of Rajasthan ). In the case of Deva v. State of Rajasthan (supra), the sample which was taken 30 gms. was found 40 gms. in the Forensic Science Laboratory and along with other circumstances it was held that possibility of tampering with could not be ruled out. In the instant case also the evidence led by the prosecution described above do not inspire confidence and it is not proved beyond reasonable doubt that the representative samples remained in the safe custody and seal intact till it was received in the State Forensic Science Laboratory. Hence the plea of the learned counsel for the appellant in this respect is accepted. I am of the view that this aspect of the case seems to have been left unconsidered by the learned trial court. For this reason, I am of the view that the prosecution has not been able to establish that contraband opium was recovered from the possession of the appellant. ( 10 ) IN the result, the appeal succeeds, the impugned judgment dated 25-2-95 convicting and sentencing the appellant is hereby set aside. Appellant Heera Lal is acquitted of the offence under S. 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He shall be released forthwith if not required in any other case. Appeal allowed.