JUDGMENT 1. - This appeal is directed against the impugned judgment and order of conviction dated 15.7.1996 passed by the learned Special Judge for NDPS Cases, Sri Ganganagar in Sessions Case No. 15/95 whereby the accused-appellant has been convicted under section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act' hereinafter) and sentenced to ten years' R.I. and a fine of Rs. 1,00,000/ and, in default, to undergo six months' R.I. 2. Briefly stated, the prosecution story giving rise to this appeal are that PW 2 Braham Dev was posted and working as Excise Inspector in the Excise Department of the State Government and was during the relevant period, posted at Padampur in District Sri Ganganagar. District Excise Officer, Sri Ganganagar, drew out a programme for conducting raids on persons/premises suspeded of possessing contrabands and, accordingly, PW 2 Braham Dev was detailed for the purpose at Sri Ganganagar itself. On 18.5.1995 at 10.00 a.m. Braham Dev along with PW 6 Kalu Ram etc., was patrolling in the Ganganagar City and when he reached near the Aazad Takies, Sri Ganganagar, he saw accused-appellant standing there while holding a bag in his hand and suspecting him to be in possession of contraband, he was interrogated and asked about the purpose of his waiting there and he immediately replied that he was waiting for rickshaw. He gave his particulars and identity. 3. Shri Braham Dev, after compliance of provisions of Section 50 of the Act, since the accused-appellant volunteered to be searched by Bra ham Dev and, accordingly, Braham Dev proceeded to search his person and the bag that was in possession of the accused-appellant in presence of PW 6 Kalu Ram as well as two 'motbirs' PW 1 Bant Ram and PW 3 Prem Kumar. On search of the bag opium poppy husk powder weighing 15 kgs. was found in the same for which, admittedly, the accused-appellant had no licence, permit or any authority for its possession and since he was an offender for commission of offence under section 8/15 of the Act, a sample weighing 200 gms. of the opium poppy husk powder was separately taken and thereafter the remaining lot of the contraband and that of the sample so taken separately were separately packed and sealed and search, seizure and recovery memo Ex. P/1 was prepared. The accused-appellant was immediately arrested. of the opium poppy husk powder was separately taken and thereafter the remaining lot of the contraband and that of the sample so taken separately were separately packed and sealed and search, seizure and recovery memo Ex. P/1 was prepared. The accused-appellant was immediately arrested. PW 2 Bra ham Dev registered FIR No. 11/95 at the Excise Circle Office, Sri Ganganagar under section 8/22 of the Act and started investigation. Subsequently, he made over investigation to PW 5 Kesara Ram, Excise Inspector, and he delivered the bag of contraband so seized along with the packet of the sample and other documents and record. Kesara Ram subsequently started investigation. The sample of contraband so taken was forwarded to the Excise Laboratory, Jodhpur for its chemical examination and, on its chemical examination, it was confirmed that the sample packet contained powder of poppy husk and, lastly, a report was lodged against the accused-appellant under section 8/22 of the Act in the Court of Special Judge, Sri Ganganagar whereat the accused was charged with commission of offence under section 8/15 of the Act to which he pleaded not guilty and claimed to be tried and hence the prosecution examined PW 1 Bant Ram, PW 2 Bha ham Dev, PW 3 Prem Kumar, PW 4 Mani Ram, PW 5 Kesara Ram and PW 6 Kalu Ram. 4. The accused-appellant was also examined under section 313, Cr.P.C. and he denied that he was at all in possession of the contraband and that the same was recovered from his possession and, instead, he advanced a defence that he was falsely implicated and, similarly, one Labh Singh was also on the same day, as is admitted by PW 2 Braham Dev, accused of possession of the contraband. He examined DW 1 Balwant Gupta, hand-cart puller who was carrying on his transaction at the place of alleged occurrence who denied that the excise officials had at all searched and seized any contraband from the possession of the accused-appellant.' 5. Lastly, on conclusion of trial, after hearing both sides, the learned Sessions Judge passed the impugned judgmeht and order of conviction and hence this appeal. 6. Lastly, on conclusion of trial, after hearing both sides, the learned Sessions Judge passed the impugned judgmeht and order of conviction and hence this appeal. 6. I have heard the learned counsel for the appellant as well as the learned Public Prosecutor and have also been taken through the evidence of the witnesses examined during the course of trial, besides, the legality and the correctness of the impugned order and considered the same. 7. The learned counsel for the appellant has contended that PW 2 Braham Dev did not comply with the mandatory provisions including Sections 55 & 57 of the Act; the alleged 'motbirs' and PW 1 Bant Ram and PW 3 Prem Kumar have denied that any search of the accused-appellant was made in their presence and that any contraband was also found in his possession and they have been declared hostile; and that the prosecution besides miserably failed to show that any sample out of the alleged contraband was immediately taken and the same was packed and sealed separately and the same was thereafter kept intact in a sealed condition and the same was deposited with the Excise Laboratory at Jodhpur and Ex. P/12 is the result of examination of the same sample taken from the alleged contraband so seized from the possession of the accused and, therefore, his further submission is that the learned trial Judge failed to appreciate the prosecution evidence as well as defence plea and taking a superficial and an erroneous view of the evidence of the prosecution, held the appellant guilty and hence he is entitled to acquittal.. 8. On the contrary, the learned Public Prosecutor has vehemently contended that there is no illegality, incorrectness or impropriety in the impugned order warranting interference with the same. 9. Before disposal of the aforesaid contentions, it is worthwhile to consider the prosecution evidence. 10. 8. On the contrary, the learned Public Prosecutor has vehemently contended that there is no illegality, incorrectness or impropriety in the impugned order warranting interference with the same. 9. Before disposal of the aforesaid contentions, it is worthwhile to consider the prosecution evidence. 10. PW 2 Braham Dev stated that at about 10.00 a.m. he found the appellant standing in front of Aazad Takies, Sri Ganganagar who was holding a bag in his hand and suspecting him to be in possession of contraband in the bag, he apprehended and interrogated the appellant and, on being asked as to whether he wanted to be searched in presence of any gazetted officer or any Magistrate, he volunteered to be searched by him and, accordingly, in presence of both the 'motbirs' and Kalu Ram, he proceeded to search the person of the appellant and so also the bag held by him and on search of bag 15 kgs. of contraband was found in the same. This statement is also substantially corroborated by PW 6 Kalu Ram. 11. Both of them have further stated that a sample of 200 gms. of contraband was taken separately and thereafter remaining lot was packed and sealed in Art. 1 while the sample of the contraband was separately packed and sealed in a separate packet and Ex. P/1 search and seizure memo was prepared at the site in presence of PW 1 and PW 3. 12. PW 1 Bant Ram and PW 3 Prem Kumar have not toed the line of prosecution story and instead they have stated that they did not witness the appellant being searched and any contraband also being recovered from his possession resulting in its seizure as per Ex. P/1 memorandum and instead they have further stated that they were summoned to the office of the Excise Inspector whereat they were asked to certain papers and thus they have denied outright that any search or seizure as-per Ex. P/1 was made in their presence. Though they were got declared hostile by the learned Public Prosecutor conducting the case but that has not brought any relief to the prosecution. Their appearance and presence at the time of the alleged search and seizure at the scene of occurrence is also not far from doubt. Besides, their antecedents also do not inspire confidence. They have clearly stated that they were made to sign papers including Ex. Their appearance and presence at the time of the alleged search and seizure at the scene of occurrence is also not far from doubt. Besides, their antecedents also do not inspire confidence. They have clearly stated that they were made to sign papers including Ex. P/1 at the Excise Office itself and, since there is no independent witness from the public supporting the statement of PW 2 Braham Dev and PW 6 Kalu Ram and, therefore, after having a considerate thought to their evidence and on proper evaluation of the evidence, specially having regard to the fact that PW 2 Braham Dev did admit that at 11.00 a.m., as evidenced from Ex. D/3, search and seizure memo, one Labh Singh was also similarly apprehended by him and both these witnesses were kept as 'motbirs' in subsequent recovery alleged to have been made at 11.00 a.m. from the same place while recovery of Ex. P/1 is alleged to have been made at 10.00 a.m. while the papers were completed at about 10.40 a.m. It also shows that since the Excise Department was carrying on raids of suspects of contraband dealers, users and transporters etc. and, in this campaign, the appellant and so also Labh Singh are alleged to have been apprehended at the same place as they fell into the drape of the excise officials. 13. After assailing the prosecution evidence specially when both the 'motbir' witnesses have failed to corroborate the prosecution story and, instead, they'have denied that any raid resulting in search, seizure and recovery of contraband as per Ex. P/1 was carried out in their presence and, besides, PW 2 Braham Dev has clearly stated that since it was PW 5 Kesara Ram who was the Excise Inspector concerned of Ganganagar Excise Circle and that even if registration of Ex. P/6 FIR at the Excise Office, he did not deposit the bulk of contraband recovered as well as the packet of sample so taken either on 18.5.1995 or 19.5.1995 in the 'malkhana' of the Excise Office, Sri Ganganagar. It was on 20.5.1995 that he handed over the record along with the two packets of contraband to Kesara Ram vide Ex. P/7. PW 2 graham Dev had also stated that he sealed the packets of contraband including its sample with the seal of the Excise Inspsector, Sri Ganganagar City and the same was deposited in the office. It was on 20.5.1995 that he handed over the record along with the two packets of contraband to Kesara Ram vide Ex. P/7. PW 2 graham Dev had also stated that he sealed the packets of contraband including its sample with the seal of the Excise Inspsector, Sri Ganganagar City and the same was deposited in the office. He also stated that he had taken this seal from PW 5 Kesara Ram though there is no record to show that the seal was obtained from Kesara Ram and the same was either deposited in the office with any official of the department much less with PW 5 Kesara Ram. 14. Here it may be appreciated that, in view of the challenge thrown by the learned counsel for the appellant that the prosecution miserably failed to show that the alleged sample deposited with the chemical report of Excise Department, Jodhpur was the same which was taken out of the bulk of the contraband alleged to have been seized and recovered from the possession of the appellant, PW 2 Braham Dev himself has admitted that the seal, after being used, was neither deposited with any 'motbir' nor did he prepare any memoranda of specimens of seal so used in packing the bulk of contraband seized as well as the sample so taken and the packets having been prepared thereof. He has further stated that he had affixed the sample of the seal used on Ex. P/1 only and that he did not affix any specimen of the seal used, on Ex. P/10. He brought the packet of contraband seized along with its sample packet at the Excise Office and the same were kept in his possession till he could deliver the same on 20.5.1995 to PW 5 Kesara Ram. 15. P/1 only and that he did not affix any specimen of the seal used, on Ex. P/10. He brought the packet of contraband seized along with its sample packet at the Excise Office and the same were kept in his possession till he could deliver the same on 20.5.1995 to PW 5 Kesara Ram. 15. Besides, he has statedhat he has made an entry about the safe custody and deposit of the aforesaid packets in the crime as well as 'malkhana' registers but the same has not as yet seen the light of the day and, therefore, there is absolutely no proof in corroboration of the statement of graham Dev that the packets of the bulk contraband as well as the sample so prepared at the site, if any, from 18.5.1995 to 20.5.1995, were kept safe and secure and in intact condition without taking/giving any opportunity for tampering with the same till they were desptached to and deposited with the Excise Laboratory at Jodhpur. 16. PW 5 Kesara Ram stated that the investigation was taken up by him on 20.5.1995 and that the packets of the contraband including the sample packet were delivered to him by Braham Dev in sealed condition which were kept by him intact in a sealed condition before the sample packet was forwarded to Excise Laboratory at Jodhpur with PW 6 Kalu Ram. As also stated by Kesara Ram and so also by PW 2 Braham Dev, the sample packet was kept in the personal custody of Braham Dev himself and the same was not deposited with the 'Malkhana' of the Excise Department. 17. PW 6 Kalu Ram, while corroborating the above statement of PW 2 graham Dev and PW 5 Kesara Ram, in this respect, stated that he obtained sample packet on 4.6.1995 and deposited the same in the same condition with the Excise Laboratory at Jodhpur on 5.6.1995 obtaining a receipt on the bottom of Ex. P/10 forwarding memo. 18. As stated by Kesara Ram as well as Kalu Ram and so also admitted by PW 2 Braham Dev, no memorandum of specimens of seal used in packing the seized con-traband as well as the packet of sample was ever prepared either at the time of search or subsequent thereof. P/10 forwarding memo. 18. As stated by Kesara Ram as well as Kalu Ram and so also admitted by PW 2 Braham Dev, no memorandum of specimens of seal used in packing the seized con-traband as well as the packet of sample was ever prepared either at the time of search or subsequent thereof. Besides, the seal so alleged to have been used belonged to PW 5 Kesara Ram's office and just after its use, the same remained with PW 2 Braham Dev and the same was neither immediately deposited in the 'Malkhana' of the Excise Department nor was it made over to independent witness so that in case so required or desired, the same could not be used for re-packing or making any unauthorised Use of the seal by Braham Dev and, subsequently, the person who was left in possession of the same. Similarly, no specimens of the seal were taken separately and kept under the custody of the officer-in-charge of the 'Malkhana' to be forwarded in a sealed cover to the Excise Laboratory, Jodhpur so as to enable it to compare and tally the impressions of seal found on the packet with the impressions found in the memorandum of specimens of seal, if any. Therefore, when the alleged sample packet was given to PW 6 Kalu Ram on 4.6.1995 and a specimen of the seal so affixed at 'S' in Ex. P/10 forwarding letter being openly sent with Kalu Ram by Kesara Ram, it cannot be said that the same seal which was affixed on Ex. P/10 was also used in packing the sample packet as early as on 18.5.1995 by PW 2 Braham Dev. Since 'Malkhana' Register showing the condition of the contraband as well as the sample packet while being deposited in the 'Malkhana', has not been produced and exhibited to show that the 'Malkhana' items including the sample taken were received at the same in a safe, secure and intact sealed condition and that the same was, in the same condition, delivered to PW 6 Kalu Ram on 4.6.1995 and that, subsequently, the same was deposited with the Excise Laboratory at Jodhpur for its examination and so the packet so subjected to chemical analysis and examination at Jodhpur was the sample which was taken from the contraband alleged to have been seized from the possession of the appellant on 18.5.1995 and none else. 19. 19. Since, as observed hereinbefore, PW 1 Bant Ram and PW 3 Prem Kumar have denied that PW 2 Braham Dev conducted any search and seizure of contraband from the person of the appellant and they were made to sign all the papers at the Excise Office itself and, in these circumstances, when the seal so t.ed remained in possession and with Braham Dev himself till the same was made over to PW 5 Kesara Ram and, subsequently, Kesara Ram also had occasion to have used the same in the manner he liked before he took an impression of the same on Ex. P/10 while sending the sample packet with PW 6 Kalu Ram to Excise Laboratory, Jodhpur and, therefore, in absence of entries of 'malkhana' Register and so also the person in immediate control and custody of the 'Malkhana' and, besides, Kesara Ram while taking the charge of the sample packet havingnot put his seal on the packet and instead without any record about the condition of the sample packet either at the time of its receipt, deposit in the 'Malkhana' and thereafter while removing from the 'Malkhana' have been delivered to PW 6 Kalu Ram till it was received at the Excise Laboratory at Jodhpur. 20. The prosecution has not been able to prove beyond reasonable manner of doubt that the sample so examined as per Ex. P/12 was the same sample of contraband that was allegedly taken as early as on 18.5.1995 by PW 2 Braliam Dev from the alleged bulk of contraband having been found in possession of the appellant and the same having been, at the same time, on the spot, taken from the bulk of the packets of sample having been so packed and sealed intact without giving any chance for its being tampered with till it is deposited with the Excise Laboratory at Jodhpur. 21. The learned counsel for the petitioner has relied on the decisions of this Court rendered in Girdhari & Ors. v. State of Raj., 1996 (2) RCD 362 (Raj.), Sudama Singh v. State of Raj., 1996 (2) RCD 489 (Raj.), Chhagan Lal v. The State, 1996 (2) RCD 528 (Raj.), Sumer Singh & Ors. v. The State,1996 (2) RCD 563 (Raj.), Bhanwar Singh v. The State, 1996 (2) RDC 568 (Raj.) and lastly, Bhatru Lal & Ors. v. State of Raj., 1996 (2) RCD 362 (Raj.), Sudama Singh v. State of Raj., 1996 (2) RCD 489 (Raj.), Chhagan Lal v. The State, 1996 (2) RCD 528 (Raj.), Sumer Singh & Ors. v. The State,1996 (2) RCD 563 (Raj.), Bhanwar Singh v. The State, 1996 (2) RDC 568 (Raj.) and lastly, Bhatru Lal & Ors. v. The State of Raj., 1996 (1) RCD 588 (Raj.) to supplement his arguments that, in the aforesaid circumstances, the prosecution having failed to produce and exhibit 'Malkhana' entries, if any and, besides, no memorandum of specimens of seal having at all been prepared and there being no specimens of seal before the officials receiving the sample packet to check and find out whether the seal used at the time of search, seizure and preparation of the sample packet and that was found on the sample packet at the time of receipt, exactly tallied in absence of any memorandum of specimens of seal prepared at the site and, accordingly, since the seal was in possession of the Excise Officials from beginning to end and no memorandum of specimens of seal was ever prepared. and, similarly, no entries of the packet having been so deposited in the 'Malkhana' and its remaining in its sealed and intact condition, lastly, having been further handed over to PW 6 Kalu Ram and the same having been deposited in the same condition on 5.6.1995 at Excise Laboratory at Jodhpur. Therefore, in view of the precedents cited and relied upon by the learned counsel for the petitioner, specially having regard to the fact that both the 'motbirs', have denied the prosecution story and it cannot be denied that they were falsely introduced, looking to their antecedents and the circumstances in which their presence is said to have been secured and, besides, DW 1 Balwant Gupta's having denied that any weights/measurements/scales were taken from him at the site and, resultantly, when the prosecution is held to have failed on the basis of reliable and cogent evidence that the sample so examined was taken out of the bulk of contraband alleged to have been seized from the possession of the appellant, the appellant cannot be held liable for commission of offence under section 8 r/w Section 15 of the Act. 22. 22. As a result, there is no escape from arriving at the conclusion that the prosecution has failed to bring home guilt to the appellant beyond reasonable manner of doubt and the learned trial Judge also erroneously relied upon two departmental interested witnesses PW 2 Braham Dev and PW 6 Kalu Ram. In view of the aforesaid infirmities and lapses on the part of the departmental officials and so also there being nothing against the conduct of both the 'motbirs' who also did not lend any corroboration to the statements of both the departmental witnesses, the trial Court committed no illegality or infirmity in the impugned judgment. 23. Lastly, the learned counsel for the appellant, while relying on the decision rendered in Hathi @ Mangalsingh v. The State, 1993 (2) GLR Vol. XXXIV (2) 1743, submitted that the Poppy husk powder in case the same is yet taken to be proved to have been recovered from the possession of the appellant, the sample so allegedly examined at the Excise Laboratory at Jodhpur, only shows that it was Poppy husk powder and nothing more and so he submits that in case the same is reported to be Poppy husk powder resulting from the chemical examination, it is not covered by the definition of 'Poppy straw' as defined in Cl. (xviii) of Section 2 of the Act so as to saddle the appellant with the liability as defined under section 8 of the Act and for conviction under section 15 of the same. However, since, on the aforesaid conclusion, the appellant is entitled to acquittal and, therefore, presently, this controversy, for the limited purpose of disposal of this appeal is not necessary and is left yet open. 24. On the basis of aforesaid discussion and conclusion, the appellant is entitled to benefit of doubt and hence this appeal deserves to be accepted. 25. Accordingly, while accepting this appeal the impugned judgment and order of conviction of the accused-appellant under section 8/15 of the Act is set aside and, accordingly, he is acquitted thereof and is ordered to be set at liberty, in case he is no longer required in any other case.Appeal allowed. *******