JUDGMENT 1. - Appellant Bhura Lal has preferred this appeal against the judgment dated 22.4.1998 passed by the learned Sessions Judge, Pratapgarh whereby he has been convicted under Section 8 read with 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred as 'the Act') and sentenced to ten years rigorous imprisonment and Rs. one lac fine; in default six months simple imprisonment. 2. In brief prosecution case is that on the basis of a Mukhbir information received on 12.9.1994 at 7.15 A.M. by S.H.O. Chhoti Sadri, Datar Singh, the police squad headed by Datar Singh reached at the house of the appellant in village Harmatiya and called him to come out, Bhura Lal came out of the house. He was informed that his house is to be searched as, it is suspected that he is in possession of contraband opium. Thereafter the search was conducted by Datar Singh and 4 Kgs 600 Gms. contraband opium was recovered in a plastic bag in a niche inside the house. Two samples weighing 30 Gms. each were taken and sealed on the spot marked A1 and A2. The remaining opium was also sealed separately. The Mukhbir information was recorded in writing and a copy of the same was sent to S.P, Chittorgarh, Addl. S.P, Chittorgarh and Dy. S.P, Chhoti Sadri, After completing all usual proceedings, charge sheet was submitted against the appellant to fact trial for the offence under Sec.8/18 of the Act. It may be mentioned here that police also submitted charge sheet against one Chaina Ram for the offence under Sec.8/29 of the Act, who was discharged. 3. The prosecution examined 8 witnesses, the appellant examined in defence 3 witnesses. Number of documents were exhibited by both the sides, which will be referred hereinafter while dealing with the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor. The learned Trial Court after considering the statements of the witnesses and the documentary evidence came to the conclusion that he charge under Sec.8/18 of the Act is proved beyond reasonable doubt against the appellant and passed the impugned judgment as stated above. 4. The learned Trial Court after considering the statements of the witnesses and the documentary evidence came to the conclusion that he charge under Sec.8/18 of the Act is proved beyond reasonable doubt against the appellant and passed the impugned judgment as stated above. 4. The learned Counsel for the appellant has raised three fold arguments, firstly the prosecution has not followed the mandatory provision under Sec.41 (2) of the Act which mandates that the copy of the information received under Sub-section (1) of Sec.42 shall be sent forthwith to the immediate official superior, secondly, the prosecution has miserably vailed to establish by proper link evidence that the sample taken from the alleged contraband item was kept sealed and intact in the Malkhana and also fill it was deposited in the Forensic Science Laboratory, Jaipur; The prosecution has not even placed on record and proved the specimen seal impression that what was the specimen seal impression sent to the Forensic Science Laboratory with the sample marked A1, and thirdly it is not proved that the house was in possession of Bhura Lal. The recovery of the alleged contraband item is not proved to have been effected from the exclusive and conscious possession of the appellant. The learned Public Prosecutor supported the impugned judgment on the same reasonings which have been given by the learned Trial Court. 5. I have carefully perused the evidence on record. I have also gone throgh the impugned judgment. The prosecution has examined Datar Singh the recovery officer and exhibited Rojnamcha entry Ex.P-11, which is the Mukhbir information reduced into writing and it has been mentioned therein that information regarding Mukhbir information was sent through Ishwar Singh to Addl. S.R. Chittorgarh and Dy.S.P, Chhoti Sadri. The prosecution has not produced on record the copy of that information, which was sent to the immediate official superior. At the same time the prosecution has not examined even the Constable Ishwar Singh to prove this fact that the information was delivered by him to the Addl. S.R and the Dy.S.P Moreover, Sec.42 Sub-section (2) provides that when any officer taken down any information in writing under Sub-section (1), he shall forthwith send a copy thereof to his immediate official superior. It was, therefore, obligatory on the part of Datar Singh to send the copy of the source information and not merely an information that a source information has been received. It was, therefore, obligatory on the part of Datar Singh to send the copy of the source information and not merely an information that a source information has been received. This provision has been made in the Act to provide a safe guard to prevent frivolous or malafide actions or for supervision of the immediate superior official who must remain properly informed about the nature and contents of the information on the basis of which the authorised officer intends to proceed and conduct the search. I am, therefore, of this view that in the instant case, the mandatory provision contained in Sec.42 Sub-section (2) of the Act has not been complied with at all. The non-compliance of this mandatory provision vitiates the conviction. I do not agree with the learned Trial Court that it is not necessary to send a copy of the source information but mere intimation of the information is sufficient. 6. There is glaring inconsistencies in the statements of the witnesses and entries in the Malkhana Register about the date on which the sample was taken out from the Malkhana for forwarding it to the Forensic Science Laboratory. The Malkhana entry Ex.D3 shows an endorsement that the sample A1 was given to Harish Chandra constable on 9.11.1994 by Despatch No. 8017/9.11.1994. There is a further endorsement that the sample was given to F.C. Karan Singh for taking it to F.S.L. on 15.11.1994, but RW.5 Karan Singh carrier has stated that he received the sample marked A1 from the Malkhana on 18.11.1994 in Case No. 367/94 and deposited the same in the Forensic Science Laboratory on 19.11.1994, Narain Lal P.W.6 is the Head Mohrir, Incharge, Malkhana. He also states that the sample was delivered to Karan Singh Constable on 18.11.199. He has exhibited the entries in the Malkhana Ex.P-12 but it has not been placed on record at all. The prosecution has failed to give any reasonable explanation as to how it came to be written in Ex.D3 copy of the Malkhana Register that the sample was given on 9.11.1994 to Harish Chandra, Constable and thereafter to Karan Singh on 15.11.1994 and why there is no endoresment of delivery of the sample to Karan Singh on 18.11.1994 as deposed by him before the Court. Furthermore, the prosecution has not also produced on record the specimen seal impression memo if any prepared on the spot at the time of sealing the samples. There is no other cogent evidence to come to the conclusion that the same seal impression was sent along with the samples which was used at the time of the recovery and collecting the samples on the spot. In view of the above discussion, I hold that the prosecution has failed to prove that the samples remained sealed and intact and the possibility of tampering with the sample has not been at the all ruled out. In this situation, possibility of tampering with the sample has not been at all ruled out. In this situation, the F.S.L. report Ex.P-7 has no evidenciary value in the absence of the link evidence. The learned Trial Court has not properly appreciated and bestowed its attention on this material aspect of the case. I am of the view that the prosecution has failed to prove that the report Ex.P-7 relates to the same sample which was taken from the contraband opium alleged to have been recovered from the possession of the appellant. The above two grounds are alone sufficient to allow the appeal, therefore, I do not propose to discuss the third contention on behalf of the appellant regarding his conscious and exclusive possession. 7. In the result, the instant appeal is allowed. The impugned Judgment and sentence dated 22.4.1998 is hereby set aside. The appellant Bhura Lal is hereby acquitted of the offence under Section 8 read with 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985. He shall be set at liberty forthwith, if not required in any other case.Appeal Allowed. *******