JUDGMENT 1. - This appeal owes its origin in the judgment dated September 14,1998 of the learned Special Judge, NDPS Cases, Jhalawar whereby the accused appellant (for short the accused) was convicted under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act) to undergo 10 years rigorous imprisonment and a fine of Rs. 1,00,000/-and in default to further under to two years rigorous imprisonment. 2. The case of the prosecution is that on May 19, 1996 at 9.00 a.m. Station House Officer Bhawani Mandi Tej Raj Singh (PW 7) received secret information that one person standing near the Gali of Najakat Manjil was selling smack. The information was recorded and forwarded to the Superintendent of Police. The Station House Officer along with constables went to the spot where he found one person Abdul Rasheed, who agreed to be searched by the SHO. On being searched, 22 gms. of smack was found in the left pocket of his pant. Sample containing five grams of smack was drawn and sealed. It was sentto FSL Jaipur. Report of FSL confirmed that sample gave positive test for the presence of Diacetyle Morphine (Heroin). On completion of investigation, charge sheet came to be filed and charge under section 8/21 of the NDPS Act was read over to the accused who denied the charge and claimed to be tried. 3. As many as 7 prosecution witnesses were examined. Thereafter the statement under section 313 Cr.RC. of the accused was recorded. The accused produced one defence witness. The learned trial court after hearing the arguments convicted and sentenced the accused as indicated hereinabove. 4. Mr. A.K. Gupta, learned counsel appearing for the accused canvassed that provisions contained in section 42 of the NDPS Act were violated as copy of the information recorded under section 42(1) of the NDPS Act was not forwarded to the immediate officer, in the instant case the Dy. S.R was the immediate superior officer whereas recorded information was forwarded to the Superintendent of Police. S.R was the immediate superior officer whereas recorded information was forwarded to the Superintendent of Police. It was also contended that as per the case of the prosecution arrest memo and search memo were prepared at 11.00 a.m. whereas the first information report was lodged at 10.00 a.m. Only one independent witness Ram Chandra (PW 1) was examined who has not supported the case of the prosecution and deposed that at the time of seizure of the article he was not present. The prosecution has failed to establish that the article was remained intact. The seal was remained with SHO and it was not handed over to the independent witness and therefore the possibility that the sample was tampered cannot be ruled out. It was lastly contended that provisions of section 50 of the NDPS Act were also flouted. In support of the contention, learned counsel placed reliance on State of Rajasthan v. Daulat Ram ( AIR 1980 SC 1314 ) Chhajju Khan v. State of Rajasthan (RCC 1985 page 318 ) Mehmood v. State of U.P. ( AIR 1976 SC 69 ) Babita v. State of Maharashtra (1994 Cr.LJ 92 ), Gopal v. State of Raj. (1988 Cr.LR (Raj.) 697 ) and State of Raj. v. Gopal 1998 SCC (Cr.) 1586 ). 5. On the other hand Mr. G.S. Rathore, learned Public Prosecutor supported the impugned judgment and canvassed that the prosecution has established the case against the accused beyond reasonable doubt. 6. I have reflected over the rival submissions and carefully scanned the material on record. 7. It is the admitted case of the prosecution that the sample changed several hands before reaching the Forensic Science Laboratory. Smack weighing 5 grams was sealed vide memo Ex.R 1 on May 19, 1996 at 10.00 a.m. SHO Tej Raj Singh put his seal 'TRS' on the sample. On his return to the Police Station the sample was re-sealed by Bhanwar Singh Sub Inspector vide Memo Ex.R 4 by putting the seal impression 'RS. Bhanwani Mandi Jhalawar'. A look at Ex.R 4 reveals that it was also drawn on May 19, 1996 at 10.00 a.m. in the presence of Ramesh Singh and Poor Singh. In the cross examination Tej Raj Singh (PW 7) admitted that after sealing the sample he kept the seal bearing his name, with him. Bhanwani Mandi Jhalawar'. A look at Ex.R 4 reveals that it was also drawn on May 19, 1996 at 10.00 a.m. in the presence of Ramesh Singh and Poor Singh. In the cross examination Tej Raj Singh (PW 7) admitted that after sealing the sample he kept the seal bearing his name, with him. The witness also deposed that the sample was re-sealed at the Police Station by Bhanwar Singh S.l. but time 10 AM' shown in the memo Ex.R 4 is wrong as the Memo Ex.R 4 was drawn after he reached at the Police Station. But Bhanwar Singh S.l. (PW 2) did not say that he wrongly put the time as 10 AM' when he re-sealed the sample. Bhanwar Singh categorically stated that he had re-sealed the sample by the seal of Police Station and drawn Ex.R 4. It is thus evident that memo of recovery of smack Ex.R 1 and memo of re-sealing of smack Ex.R 4 were drawn on May 19, 1976 at 10 A.M. Ram Chandra (PW 1) was shown as witness of recovery of smack but he did not support the prosecution case and was declared hostile. Attesting witnesses of Ex.R 4 viz. Ramesh Singh and Poor Singh were not examined by the prosecution. 8. Their Lordships of the Supreme Court in Mahmood v. State of U.R ( AIR 1976 SC 69 ) propounded that investigating officer after sealing the alleged contraband should take necessary precaution in respect entrustment of seal to independent respectable person so as to avoid the chance of tampering the seal. 9. In Raja Ram v. State of Rajasthan (RCC 1985 Page 342 ) the Division Bench of this Court also observed that it was obligatory on the part of the prosecution to have handed over the seal to some respectable person of the village. 10. As already indicated in the above paras that Tej Raj Singh (PW 7) after sealing the sample kept the seal with him. Admittedly the seal was not handed over to independent person. Strangely both the memos Ex.P 1 and Ex.R 4 were drawn on May 19, 1996 at 10 A.M. Witness of recovery memo Ram Chandra (PW 1) did not support the prosecution case. Attesting witnesses of Ex.R 4 were not examined by the prosecution. Admittedly the seal was not handed over to independent person. Strangely both the memos Ex.P 1 and Ex.R 4 were drawn on May 19, 1996 at 10 A.M. Witness of recovery memo Ram Chandra (PW 1) did not support the prosecution case. Attesting witnesses of Ex.R 4 were not examined by the prosecution. The seal on sample sent for chemical analysis was not produced in the trial court for verification (1998 SCC (Cr.) 1586). The inevitable effect of these infirmities is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. Learned court below has not properly appreciated this important aspect of the case. 11. Under these circumstances lingering doubt does arise regarding the genuineness of the recovery of smack from the possession of the accused. I am satisfied that the prosecution has failed to prove the guilt against the accused appellant beyond reasonable doubt. 12. Resultantly, the appeal succeeds and is hereby allowed. The impugned judgment dated September 14, 1998 of the learned Special Judge NDPS cases Jhalawar stands set-aside. The accused appellant shall stand acquitted from the charge under section 8/21 NDPS Act. He shall be released forthwith if not required in any other case.Appeal allowed. *******