JUDGMENT M.R. Verma, J.—This jail appeal has been preferred by the appellant/ accused (hereafter referred to as the accused) against the judgment dated 26.2.2005, passed by the learned Additional Sessions Judge, Chamba whereby the accused has been convicted under Section 20 of the Narcotic Drugs & Psychotropic Substances Act (hereafter referred to as the NDPS Act) and has been sentenced to undergo rigorous imprisonment for four years and fine Rs. 20,000/- and in default of payment of fine, to undergo further j rigorous imprisonment for one year. 2. The case of the prosecution in brief is that on 30.9.2001 when a police patrol party headed by Inspector Kulwant Singh (PW-8), was heading from Sultanpur to Prail at about 5.30 p.m. the accused was noticed coming from the side of Balupul while carrying a bag in his right-hand. On seeing the police party, the accused started walking swiftly towards Pathankot road. Getting suspicious, he was apprehended by the police and the bag-he was carrying, was searched. It was found that the accused was carrying Charas kept in the bag. On weighing, it was found 500 grams. Two samples of 20 grams each were separated from the recovered Charas and the samples so drawn and the remaining Charas were made into separate parcels which were sealed with Seal and were seized vide memo. Ext. PB in the presence of Pa wan Kumar (PW-2) and Allabux (PW- 1). The accused was arrested and intimation about his arrest was given to his wife vide memo. Ext. PA. ARooka Ext. PW-3/A was drawn by PW-8 which was sent for registration of a case and as a consequence FIR Ext. PW-10/B was recorded at Police Station Sadar Chamba. Special Report Ext. PW-6/A was sent to the Superintendent of Police. One of the samples of the Charas was sent for chemical analysis and the report of the Chemical Examiner about such examination is Ext. PW-9/C opining that the sample contained contents of Charas. On completion of the investigation, charge-sheet was submitted against the accused who came to be tried by the trial Court on a charge under Section 20 of the NDPS Act. 3. To prove the charge against the accused, prosecution examined as many as 11 witnesses. PW-9/C opining that the sample contained contents of Charas. On completion of the investigation, charge-sheet was submitted against the accused who came to be tried by the trial Court on a charge under Section 20 of the NDPS Act. 3. To prove the charge against the accused, prosecution examined as many as 11 witnesses. Statement of the accused was recorded under Section 313 of the Criminal Procedure Code wherein he denied the case of the prosecution and claimed to be innocent and having been falsely implicated in the case. The accused, however, did not lead any defence evidence. 4. On appreciation of the material on record, the trial Court convicted and sentenced the accused as aforesaid. Hence, this appeal by the accused. 5. I have heard the learned counsel for the accused and the learned Deputy Advocate General for the respondent - State and have also gone through the records. 6. The learned counsel for the accused contended that there is no link evidence connecting the sample allegedly analysed in the laboratory with the allegedly recovered Charas, therefore, the conviction of the accused could not be recorded. It was further contended that the independent witnesses allegedly joined to witness the search and seizure, have not supported the prosecution version and the statements of the police officials examined to support the prosecution version, are of highly doubtful nature, therefore, could not have been relied upon to record conviction of the accused. Therefore, urged the learned counsel for the accused, the impugned conviction and sentence cannot be sustained. 7. Per contra, the learned Deputy Advocate General supported the impugned conviction and sentence on the basis of the reasoning of the trial Court and submitted that there was sufficient evidence on record on the basis of which the charge against the accused is proved and the impugned conviction and sentence do not call for any interference. 8. Be it stated at the very outset that link evidence with reference to the narcotic and psychotropic substances in a case where it is recovered from unlawful possession, is the evidence which provides link in the evidence from the stage of taking of the sample till its examination by the Chemical Examiner. 8. Be it stated at the very outset that link evidence with reference to the narcotic and psychotropic substances in a case where it is recovered from unlawful possession, is the evidence which provides link in the evidence from the stage of taking of the sample till its examination by the Chemical Examiner. The prosecution is obliged to lead such evidence to connect the sample with the recovered contraband and in the absence of such evidence, the person alleged to be in possession of such contraband unlawfully cannot be convicted. If convicted, his conviction and sentence cannot be maintained. 9. In Sandeep Kumar v. State ofHimachal Pradesh [2003 (1) Crimes 335] this Court, while dealing with the importance of link evidence, held as under:— "It may be pointed out that link evidence with reference to any psychotropic or narcotic substance seized when found in unlawful possession, is the evidence which provides link in the evidence from the state of taking the sample till its examination by the Chemical Examiner. This evidence is very material to connect the sample with the remaining case property. The prosecution is duty bound to lead link evidence to prove that the articles/ samples sent to the Chemical Examiner were the same which were recovered/were samples of the contraband recovered from the accused and the sample(s) analysed by the Chemical Examiner is in fact of the bulk of the contraband recovered from the accused. In the absence of such evidence where accused has denied recovery of the contraband from his possession or at his instance, he cannot be convicted for possession thereof.” 10. Similar view has been taken by this Court in various other cases some of which are Iacopo Lombardi v. State of H.P. [2002 (2) SLJ 1506]; Roop Ram v State of H.P. [2003 (1) Current Law Journal (HP) 361]; Titu Singh v. State of H.P [2003 (2) Current Law Journal (HP) 136] and State of H.P v. Hanacho alias Stewart [2005 (1) S.L.J. 27]. 11. In Ombir Singh v. State of Himachal Pradesh (Criminal Appeal No. 313 of 2004, decided on 1.12.2004) this Court held as under:— "The correct and authentic procedure in fact is to take specimen sample of the seal(s) used for sealing the case property and the sample immediately after the sealing is done in the presence of the witnesses. 11. In Ombir Singh v. State of Himachal Pradesh (Criminal Appeal No. 313 of 2004, decided on 1.12.2004) this Court held as under:— "The correct and authentic procedure in fact is to take specimen sample of the seal(s) used for sealing the case property and the sample immediately after the sealing is done in the presence of the witnesses. A specimen sample so taken in the presence of witnesses will decidedly be more authentic for comparison with the seal impressions on the sealed article." 12. It is in view of the above settled position in law that the contention of the learned counsel for the accused that there is no link evidence in this case, therefore, the impugned conviction and sentence cannot be sustained, has to be appreciated. 13. The Charas was allegedly recovered and seized by PW-8. It is nowhere in his evidence that after having sealed the samples and the bulk Charas, he took seal sample separately and filled in the NCB form on the spot in the presence of the witnesses, It is also not stated by him that he ever deposited the case property either himself or through some other police official in any safe custody in the Malkhana or anywhere else. Two of the independent witnesses examined by the prosecution also do not state that any seal sample or NCB form was taken or filled in their presence. The three police officials examined by the prosecution in this regard, namely, Head Constable Kartar Singh (PW~3), constable Rakesh Kumar (PW-4) and HC Surinder Kumar (PW-5) have also not stated that seal sample and NCB form were taken/filled in on the spot immediately after sealing of the samples and bulk Charas or at any time thereafter. Even Narinder Kumar (PW-11) who claims that the case property was handed over to him by PW-8 for being kept in safe custody in the Malkhana has not stated that any NCB form duly filled in and the sample seal of the seal used for sealing the case property at the time of seizure, were deposited with him by PW-8. Even Narinder Kumar (PW-11) who claims that the case property was handed over to him by PW-8 for being kept in safe custody in the Malkhana has not stated that any NCB form duly filled in and the sample seal of the seal used for sealing the case property at the time of seizure, were deposited with him by PW-8. Similarly, HC Vinod Kumar (PW-7) who allegedly took the sample to CTL Kandaghat for chemical analysis has nowhere stated that when he took one sealed Pulanda sealed with T to CTL Kandaghat, he was given any duly filled in NCB form or the sample seal to enable the comparison of the seal impression on the sample with the specimen seal impression used for sealing the case property. Thus, the most material link evidence in this case that the specimen seal impression and the NCB form were taken/filled in after seizure of the case property and were ever sent to CTL, is missing. 14. It is admitted case of the prosecution that the alleged recovery of Charas was made on 30.9.2001 and it is so stated by the concerned police officials. However, PW-11 who claims that the case property was deposited with him by PW-8, has specifically stated that the case property was deposited with him on 29.9.2001. Evidently, the Charas recovered on 30.9.2001 and the samples thereof could not have been deposited in the Malkhana a day before the recovery. Thus, whatever evidence has come on record about the keeping of the case property in safe custody, is utterly unreliable rather it is evidently false. The prosecution has produced in evidence the NCB form Ext. PW-9/B. The contents of this form instead of supporting the prosecution version, makes it more unreliable. Ext. PW-9/B contains the FIR number. The date of drawal and dispatch of the sample therein is mentioned as "1st October, 2001". Had this form been filled in at the time of the seizure which preceded the recording of the FIR, the FIR number could not have been given in Ext. PW-9/B. The date of drawal of sample as per the version of the prosecution is 30.9.2001, therefore, the date of drawal as mentioned against serial No. 5 in the form Ext PW-9/B could not be 1.10.2001. PW-9/B. The date of drawal of sample as per the version of the prosecution is 30.9.2001, therefore, the date of drawal as mentioned against serial No. 5 in the form Ext PW-9/B could not be 1.10.2001. This date is not even of the dispatch of the sample to CTL Kandaghat for the reason that PW-11 claims that he handed over one sample to constable Vinod Kumar on 2.10.2001 for being deposited in CTL Kandaghat. Vinod Kumar (PW-7) also states that a sample was given to him by PW-11 on 2.10.2001 for being deposited in CTL Kandaghat. 15. In view of the contents of Ext. PW-9/B and the statements of the aforesaid witnesses, it is absolutely clear that the sample sent to CTL was not of the case property in this case. This conclusion is further strengthened by the fact that as per the prosecution case, weight of each of the samples drawn from the recovered Charas was 20 grams. However, as per the contents of the report of the Chemical Examiner Ext. PW-9/C, the sample received in the laboratory weighed 13.1276 grams only. A marginal difference in the weight may not be construed to hold that the sample was not of the case property, but difference of 1 /3rd of the total weight is not a difference which can be ignored. Thus, the only permissible conclusion in such a situation will be that either the sample had been tampered with or the sample which was delivered in the laboratory, was not the sample of the case property which, according to the prosecution itself, was of 20 grams. 16. Surinder Kumar (PW-5) a police official of the rank of an investigator, in his evidence claims that the case property and samples were sealed by PW-8 with seal T. In the cross-examination, he further goes on to state that the case property was re-sealed by Sadhu Ram, SHO (PW-9) with his own seal T. It is not the case of the prosecution that the case property was ever re-sealed by PW-9. Therefore, the version of this witness regarding re-sealing of the case property is suggestive of the fact that he is not stating true facts and his very presence at the time of seizure etc. of the case property on the spot is doubtful. 17. Therefore, the version of this witness regarding re-sealing of the case property is suggestive of the fact that he is not stating true facts and his very presence at the time of seizure etc. of the case property on the spot is doubtful. 17. The above discussion leads me to the conclusion that there is absolutely no link evidence to connect the sample analysed by the Chemical Examiner with the Charas allegedly recovered from the accused and the impugned conviction and sentence are liable to be set aside on this sole ground. 18. In so far as the nature of evidence led by the prosecution regarding the alleged search, and recovery is concerned, that also does not inspire confidence. Basically Rooka Ext. PW-3/A as per its own contents, had been prepared after the process of search, recovery, sampling, seizure and preparation of the seizure memo had been completed. However, evidence of PW-8, who conducted the search, sampling and seizure, in his examination-in-chief states that after sealing the case property, he drew the Rooka Ext. PW-3/A and sent it for registration of the case and thereafter prepared the seizure memo Ext. PB. This version of PW-8 is contradictory of the contents of Ext. PW-3/A on the basis of which the FIR has been recorded. 19. It is case of the prosecution that the independent witnesses were already present on the spot and were associated in the search etc. Thus, even according to the version of the prosecution, they were only chance witnesses. They have not supported the prosecution case even otherwise. No implicit reliance can be placed on the evidence of the police officials, none of whom except PW-8, are signatories to the memo. Ext. PB regarding search, sampling and seizure of the Charas. Thus, the evidence of the police officials not corroborated by the independent witnesses and not being confidence inspiring, could be made basis even to believe the version of the prosecution regarding the search and seizure of the Charas. 20. The above discussion leads me to the conclusion that the prosecution has failed to prove the charge against the accused, therefore, the impugned conviction and sentence cannot be sustained. 21. As a result, this appeal is allowed and the conviction and sentence of the accused are set aside. 20. The above discussion leads me to the conclusion that the prosecution has failed to prove the charge against the accused, therefore, the impugned conviction and sentence cannot be sustained. 21. As a result, this appeal is allowed and the conviction and sentence of the accused are set aside. The accused who is presently undergoing the sentence of imprisonment awarded to him by the trial Court, be set at liberty forthwith, if not required to be detained in custody under any other process of law. Fine if recovered, be refunded to him. Appeal allowed. -