JUDGMENT 1. - This appeal has been filed by the accused-appellant against the judgment and order dated 16.10.1997 passed by the learned Special Judge, NDPS Cases, Chittorgarh in Sessions Case No. 252/97 (48/95) by which he convicted the accused-appellant of the charge for the offence u/s. 8/18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act") and sentenced him to undergo ten years' RI and to pay fine of Rs. one lac, in default of payment of fine, to further undergo one year RI. 2. The facts giving rise to this appeal, in short, are as follows:- PW-1 Jaswant Singh, SHO, Police Station Kanera District Chittorgarh prepared a Parchakayami (Ex.P/7) on 15.6.1995 at about 7.15 p.m. stating inter alia that on 15.6.1995 at about 2.00 p.m., he received a secret information from mukhbir to the effect that on that day before 6.00 p.m. one person, namely, Daul Giri (present accused-appellant) S/o Madhugiri, resident of Shankhdo Ka Kheda having opium in his possession would pass through Palchha Ghata on foot from the village Badawali. That information was reduced into writing by PW-1 Jaswant Singh and the same is Ex.P/2 and apart from this, that information was also reduced in Rojnamcha Ex.P/1-A. The copy of the secret information was also sent by PW-1 Jaswant Singh to superior officer Dy.SP Khetdan (PW-13) and PW-13 Khetdan was also requested to come and join the raiding party. Thereafter, PW-1 Jaswant Singh alongwith PW-13 Khetdan, PW-12 Manikant, Reader of Dy.SP and other police officials and one independent motbir Parbat Singh (PW-6) proceeded towards the spot in a Government vehicle at about 4.00 p.m. and at about 4.15 p.m., they reached Badawali-Palchha Road and made Nakabandi and during Nakabandi, at about 5.00 p.m., they saw one person having gunny bag on his head coming on foot from Badawali and he was encircled and on being asked, he told his name as Daul Giri (present accused-appellant). Thereafter, the accused-appellant was informed about the secret information that he had contraband opium and, therefore, he was to be searched. Before making search, the accused-appellant was given a notice Ex.P/3 under the provisions of Section 50 of the NDPS Act asking him whether he wanted to be searched before the Magistrate or Gazetted Officer and upon this, the accused-appellant gave his consent that he could be searched by PW-1 Jaswant Singh. Before making search, the accused-appellant was given a notice Ex.P/3 under the provisions of Section 50 of the NDPS Act asking him whether he wanted to be searched before the Magistrate or Gazetted Officer and upon this, the accused-appellant gave his consent that he could be searched by PW-1 Jaswant Singh. Thereafter, he was searched in presence of two motbirs, namely, PW-13 Khetdan and PW-6 Parbat Singh and during search, from the gunny bag, plastic bag containing black-brown substance was recovered and on being tasted, it was assessed that it was nothing, but contraband opium and on being asked, the accused-appellant told that he had no valid license to keep that opium. On being weighed, its weight was found to be 6 kg., out of which, two samples of 30 grins. each were taken for the purposes of chemical analysis and sealed separately on the spot and marked as All and A/2 and the remaining opium was also sealed separately on the spot and marked as A. The fard of search and seizure was prepared on the spot by PW-1 Jaswant Singh and the same is Ex.P/4. The fard of specimen impression of seal is Ex.P/5. The accused-appellant was arrested through arrest memo Ex.P/6. Thereafter, regular FIR Ex.P/8 was chalked out. PW-1 Jaswant Singh handed over the seized articles and samples to Malkhana Incharge PW-8 Bhanwarlal, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P/15- A. Thereafter, one sample was handed over by PW-8 Bhanwarlal to PW-5 Surendra Singh for the purpose of depositing it in the FSL, Jaipur and PW-5 Surendra Singh first took the sample to SP Office, Chittorgarh and after obtaining a forwarding letter Ex.P/12 dated 20.6.1995 from SP Office, Chittorgarh, he deposited that sample in FSL, Jaipur and obtained receipt Ex.P/13 dated 21.6.1995. The FSL report is Ex.P/16 in which it was reported that the sample contained in the packet marked All gave positive tests for the chief constituents of the coagulated juice of opium poppy having 3.61% (Three point six one percent) morphine. After usual investigation, police submitted challan for the offence u/s. 8/18 of the NDPS Act against the accused-appellant in the Court of Addl. Sessions Judge,.Nimbahera District Chittorgarh. On 8.11.1995, the learned Special Judge, NDPS Cases, Nimbahera framed charge for the offence u/s. 8/18 of the NDPS Act against the accused-appellant. After usual investigation, police submitted challan for the offence u/s. 8/18 of the NDPS Act against the accused-appellant in the Court of Addl. Sessions Judge,.Nimbahera District Chittorgarh. On 8.11.1995, the learned Special Judge, NDPS Cases, Nimbahera framed charge for the offence u/s. 8/18 of the NDPS Act against the accused-appellant. The charge was read over and explained to the accused-appellant. He denied the charge and claimed trial. During trial, the prosecution in support of its case examined as many as 14 witnesses and got exhibited several documents. Thereafter, statement of the accused-appellant u/s. 313 Cr.P.C. was recorded. In defence, one witness was produced by the accused-appellant. After conclusion of trial, the learned Special Judge, NDPS Cases, Chittorgarh through his judgment and order dated 16.10.1997 convicted the accused-appellant of the charge for the offence u/s. 8/18 of the NDPS Act and sentenced him in the manner as indicated above holding inter alia that the prosecution has proved its case beyond all reasonable doubts against the accused-appellant for the offence ids. 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 16.10.1997 passed by the learned Special Judge, NDPS Cases, Chittorgarh, this appeal has been filed by the accused-appellant. 3. 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 16.10.1997 passed by the learned Special Judge, NDPS Cases, Chittorgarh, this appeal has been filed by the accused-appellant. 3. In this appeal, though many submissions have been raised, but the main submission, which has been vehemently argued by the learned counsel appearing for the accused-appellant is that link evidence in this case is not sufficient, as there is no evidence to prove the fact as to on which date the sample was taken out from the Malkhana by PW-8 Bhanwarlal and handed over to PW-5 Surendra Singh and there is no entry of that fact in the Malkhana Register Ex.P/15-A and furthermore, forwarding letter from the office of SHO, Kanera to the office of SP, Chittorgarh has not been produced or exhibited and as per the statement of PW-5 Surendra Singh, he first handed over the sample to Jamnalal, who was working in the SP Office, Chittorgarh, but Jamnalal has not been produced in this case and it has been further argued that as per the statement of PW-5 Surendra Singh, he deposited the sample in FSL, Jaipur on 20.6.1995, but the receipt Ex.P/13 reveals that sample was deposited in the FSL, Jaipur on 21.6.1995 and thus, from every point of view, link evidence is not sufficient in this case and the possibility of tampering with the sample cannot be ruled out and hence, on this ground alone, the accused-appellant is entitled to acquittal. In this respect, he has placed reliance on the decision of the Hon'ble Supreme Court in The State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314 . 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS Cases, Chittorgarh. 5. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case. 6. To appreciate the above contentions, the factual position of the present case has to be seen. 7. Before proceeding further, procedure for taking, sealing and sending samples for chemical analysis may be stated here. 8. 5. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case. 6. To appreciate the above contentions, the factual position of the present case has to be seen. 7. Before proceeding further, procedure for taking, sealing and sending samples for chemical analysis may be stated here. 8. For getting an offender contravening provision of the NDPS Act and rules made thereunder punished, it is very essential to establish that the article alleged to have been recovered or seized and in relation to which the offender is sought to be punished, is narcotic drug or psychotropic substance. To show that such article is narcotic drug or psychotropic substance, chemical examination of such article is necessary. It is further necessary to show that sample sent for chemical examination was the same which had been taken from the article recovered or seized and that the same sample reached the Chemical Examiner and if was not tampered with during the period between the time of taking of the sample and its reaching the hands of the Chemical Examiner. This can be done by establishing that the sample was sealed properly and by leading evidence of the persons by whom the sample came to be handled after its having been taken and its delivery to the Chemical Examiner. 9. For showing that sample was not tampered with after it was taken and till it reached the hands of the Chemical Examiner, it is necessary for the prosecution to produce evidence as to where the sample was kept after it was taken, by whom it was handled in the malkhana, by whom it was taken to the Chemical Examiner. Persons handling the sample in malkhana and carrying the same to the chemical examiner should be examined as witnesses in the Court. Any possibility of tampering with the sample has to be excluded. Failure to rule out possibility of its being tampered with may be fatal to the prosecution case. 10. Persons handling the sample in malkhana and carrying the same to the chemical examiner should be examined as witnesses in the Court. Any possibility of tampering with the sample has to be excluded. Failure to rule out possibility of its being tampered with may be fatal to the prosecution case. 10. The Hon'ble Supreme Court in the case of Daulat Ram (supra) has observed as under : "Where the samples of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained were examined by the prosecution to prove that while in their custody the seals on the samples were not tampered with, the inevitable effect of the omission was that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period in question - a fact which had to be proved affirmatively by the prosecution. Consequently, the accused could not be convicted u/s. 9-A. In such a case, the prosecution could not be allowed to fill up the gaps in the prosecution story at the appellate or revisional stage." 11. Keeping the above principles in mind, the facts of the present case are being examined. 12. From the statement of PW-1 Jaswant Singh, it is very much clear that after conducting search and seizure through fard Ex.P/4, he handed over the seized articles and samples to PW-8 Bhanwarlal, who was at that time Malkhana Incharge and from the statement of PW-8 Bhanwarlal, it is also very much clear that he deposited the seized articles and samples in the Malkhana and made entries in the Malkhana Register Ex.P/15-A. The Malkhana Register Ex.P/15-A bears all these entries. 13. From the statement of PW-5 Surendra Singh, it appears that on 19.6.1995 he took one sample from PW-8 Bhanwarlal for the purpose of depositing it in FSL, Jaipur and he first took the sample to SP Office, Chittorgarh and from where he took forwarding letter Ex.P/12. PW-5 Surendra Singh has categorically stated that he deposited that sample in FSL, Jaipur on 20.6.1995. In cross-examination, this witness admits that in SP Office at about 10.00 a.m., he handed over the sample to one Jamnalal and he again took sample from Jamnalal in the evening at about 5.00 p.m. 14. PW-5 Surendra Singh has categorically stated that he deposited that sample in FSL, Jaipur on 20.6.1995. In cross-examination, this witness admits that in SP Office at about 10.00 a.m., he handed over the sample to one Jamnalal and he again took sample from Jamnalal in the evening at about 5.00 p.m. 14. It may be stated here that in this case, no forwarding letter from the office of the SHO, Kanera to the office of the SP, Chittorgarh has been produced or exhibited. 15. There is also no dispute on the point that Jamnalal, who was working in the SP Office, Chittorgarh, has not been produced in this case. Though as per the statement of PW-5 Surendra Singh, he handed over the sample first to Jamnalal in SP Office and after that, he obtained forwarding letter Ex.P/12 and then he again took sample from Jamnalal. 16. From the Malkhana Register Ex.P/15-A, it appears that there is no entry in it as to when sample was taken out from the Malkhana by PW-8 Bhanwarlal and handed over to PW-5 Surendra Singh for depositing it in FSL, Jaipur and there is also no entry of the fact that PW-5 Surendra Singh deposited the sample in the FSL, Jaipur and receipt has been obtained. 17. Thus, from the above evidence, it clearly appears : (i) That PW-5 Surendra Singh took the sample on 19.6.1995 from PW-8 Bhanwarlal, who was at that time Malkhana Incharge and, thereafter, he first reached the office of SP, Chittorgarh, where he handed over the sample to Jamnalal, who was Constable in the SP Office and after that, he obtained a forwarding letter Ex.P/12 from SP Office to FSL, Jaipur and then, he deposited the sample in FSL, Jaipur on 21.6.1995, though in his statement recorded in Court, PW-5 Surendra Singh has stated that he deposited the sample in FSL, Jaipur on 20.6.1995. (ii) That there is no entry in the Malkhana Register Ex.P/15-A as to when the sample was taken out by PW-8 Bhanwarlal for handing over the same to PW-5 Surendra Singh for depositing it in the FSL, Jaipur. (iii) That there is also no entry in the Malkhana Register Ex.P/15-A that PW-5 Surendra Singh deposited the sample in FSL and receipt has been obtained. (iv) That the letter from SHO, Kanera to SP, Chittorgarh has not been produced or exhibited. (iii) That there is also no entry in the Malkhana Register Ex.P/15-A that PW-5 Surendra Singh deposited the sample in FSL and receipt has been obtained. (iv) That the letter from SHO, Kanera to SP, Chittorgarh has not been produced or exhibited. (v) That as per the statement of PW-5 Surendra Singh, he deposited the sample in FSL, Jaipur on 20.6.1995, while receipt Ex.P/13 shows that the sample was deposited in FSL, Jaipur on 21.6.1995. (vi) That PW-5 Surendra Singh has categorically stated in his statement recorded in Court that in the SP Office, Chittorgarh, he handed over the sample to one Jamnalal in the morning and took it again on the same day in the evening. Thus, it is very much clear that the sample remained in the custody of Jamnalal. However, that Jamnalal has not been examined or produced by the prosecution to prove that while in his custody the seal of the sample was not tampered with. 18. Hence, looking to the above evidence, it cannot be said that the prosecution has proved all the links starting from the seizure of the samples till the same reached the hands of the Public Analyst so that the Court could conclude that the seals remained intact through out. The possibility of the sample having been tampered with could not be ruled out. From the statement of PW-5 Surendra Singh, it is very much clear that in SP Office, Chittorgarh, he handed over the sample to one Jamnalal. But, that Jamnalal has not been produced or examined by the prosecution to prove that while in his custody the seal of the sample was not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. In these circumstances, the accused-appellant is entitled to acquittal after giving benefit of doubt. 19. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. In these circumstances, the accused-appellant is entitled to acquittal after giving benefit of doubt. 19. For the reasons stated above, the findings of the learned Special Judge convicting the accused-appellant for the offence u/s. 8/18 of the NDPS Act cannot be sustained and the same are liable to be set aside and the accused-appellant is entitled to acquittal and this appeal deserves to be allowed.Accordingly, the appeal filed by the accused-appellant-Daul @ Daulat Giri is allowed and the judgment and order dated 16.10.1997 passed by the learned Special Judge, NDPS Cases, Chittorgarh are set aside and the accused-appellant is acquitted of the charge framed against him. Since the accused-appellant is in jail, he be released forthwith, if not required in any other case.Appeal allowed. *******