JUDGMENT 1. - These two appeals arise out of judgment of conviction and order of sentence passed by the learned Special Judge, NDPS Act cases, Pratapgarh dated 28.2.2002 in Sessions Case No. 17 of 2000, whereby the accused-Appellants have been convicted under Section 8/18 of the NDPS Act and sentenced to undergo 12 years rigorous imprisonment and to pay a fine of Rs. 1.50 lac., in default thereof to further undergo rigorous imprisonment for a period of 3 years. Since both the appeals have been filed against a common judgment, these appeals are being disposed of by this judgment. 2. Brief facts giving rise to the present case may be summarised thus: 1. On 1.4.2000, at about 9 AM, PW13 Kailash Chandra, SHO, Police Station, Chhoti Sadri, the Investigating Officer of the case, received a secret information Ex.P/33A to the effect that from a red coloured Maruti Car, coming from Pratapgarh and approaching towards Chittorgarh, opium could be recovered. 2. PW 13 Kailash Chandra after recording the information, sent it for compliance under Section 42 of the Act . to the S.R Chittor and Additional S.R Pratapgarh. This was taken by Constable PW 9 Narsingh on 1.4.2000. 3. The raiding party consisting of PW 13 Kailash Chandra, ASI Baktharam, PW 6 ASI Gopal Das and PW 3 Bharat Singh, PW 14 Head Constable Sikandar Khan and Constable Shivram and other witnesses made Nakabandi near Pratap Nagar Police Station at about 9.30 AM. 4. As per the secret information Ex.P/33A, a red Maruti car was seen coming, which was stopped by PW 13 Kailash Chandra. In the car, two persons namely Jarnail Singh and one Suresh were found. Accused Jarnail Singh was driving the car whereas accused Suresh was sitting on the back seat of the car. 5. On inquiry being made from accused Jarnail Singh in relation to a brief case, which was lying by his side, it was stated by accused Jarnail Singh that the brief case contained his clothings. 6. The accused were given notice for their personal search and the search of the vehicle, who gave consent for the search and the search was conducted. 7. In the meantime, the Motbirs PW 1 Yudhishtra and PW 2 Ranglal were arranged. 8. On opening the brief case, it was found that there was a double polythene bag beneath the clothes. The accused were given notice for their personal search and the search of the vehicle, who gave consent for the search and the search was conducted. 7. In the meantime, the Motbirs PW 1 Yudhishtra and PW 2 Ranglal were arranged. 8. On opening the brief case, it was found that there was a double polythene bag beneath the clothes. When it was opened then a black liquid material was found therein, which gave smell of opium and on testing it was found that the same was opium. The polythene bag recovered was weighed. It was of two kgs. Two samples of 50 grams each were taken and two more samples as control samples were also taken. 9. Another accused, who was sitting at the back seat of Maruti, was also searched. Near to him, a brown bag was found. On making inquiry as to what was in the bag, accused Suresh replied that it contained his clothings. On opening the bag, there also a double polythene bag was found and on opening the same it was found to contain black liquid material, which also gave smell of opium and after testing it was found to be opium. The weight of this bag was also two kgs. Two samples of 50 grams each were taken from this material also and necessary marking was done. 10. On further inquiry made form the driver of the car, the driver Jarnail Singh told that still there was contraband material below the mudguard of the car and when mudguard was seen, (t was found that below that there were two polythene bags. The same were opened and were found to contain opium. On weighing, each bag was found of one kilogram. Two samples of 50 grams each were taken from each of the bags and they were marked. 11. On inquiry from accused Suresh Kumar, he also informed that at the backside of the car near the back - light of car there was opium. The back - light was got opened and two polythene bags were recovered from there. After weighing the same, those bags were found to be of one kilogram each. Two samples of 50 grams each were taken from those bags and the recovered material and the samples were seized and sealed then and there. The car was also seized and taken into custody. After weighing the same, those bags were found to be of one kilogram each. Two samples of 50 grams each were taken from those bags and the recovered material and the samples were seized and sealed then and there. The car was also seized and taken into custody. The accused Jarnail Singh and Suresh Kumar were arrested through Memos Ex.P/7 & P/8 respectively. 12. After completion of seizure of contraband material, accused alongwith car were taken to the police station. Seizure memo Ex.P/4 was prepared between 9.40 AM to 10.50 AM, which contains the signature of the Motbirs and other witnesses and the members of the raiding party. 13. In the Police Station, on the basis of Kayaml Jurm Ex. P/27, a regular FIR P/28 was chalked out. 14. The matter was further investigated by PW 14 Govind Singh, SHO, PS Dholapani, PW 12 Amar Singh, SHO, Pratapgarh and PW 13 Kailash Chandra, SHO, Chhoti Sadari. The samples were sent for chemical examination to the FSL. The FSL report is Ex.P/33 which gave positive opinion of opium. 3. After completion of investigation, challan was submitted and the matter came up for trial in due course of time before the learned Special Judge, NDPS Cases, Pratapgarh, who framed charge under Section 8/18 of the NDPS Act against both the accused persons. Accused denied the charges and claimed trial. 4. The prosecution has examined as many as 14 witnesses and tendered several documents in documentary evidence. 5. After close of the prosecution evidence, in the statements under Section 313 of the Cr.PC., the accused stated that in fact they were looking after the agricultural work of DW 1 Surjeet Singh and in fact they were taken from the house of DW 1 Surjeet Singh and were falsely implicated in the case. They pleaded innocence and in defence examined DW 1 Surjeet Singh. 6. After hearing both sides, the learned Trial Court convicted and sentenced the accused appellants as indicated hereinabove. 7. Aggrieved by the aforesaid judgment of conviction and order of sentence, the present two appeals have been filed. 8. I have heard learned counsel for the accused appellants and also the learned Public Prosecutor for the State. 9. 6. After hearing both sides, the learned Trial Court convicted and sentenced the accused appellants as indicated hereinabove. 7. Aggrieved by the aforesaid judgment of conviction and order of sentence, the present two appeals have been filed. 8. I have heard learned counsel for the accused appellants and also the learned Public Prosecutor for the State. 9. The contention of the learned counsel for the appellants is that the link evidence in this case is absolutely missing and in fact the prosecution was not able to prove its case inasmuch as it is doubtful as to when the samples were taken and the same reached in the FSL in the sealed condition. 10. It has also been contended by the learned counsel that in this case there is no compliance of Section 55 as well as Section 57 of the NDPS Act. According to the learned counsel, those Sections though are not of mandatory nature but still the same cannot be given a complete go-Bye. According to the learned counsel there was at all no compliance of those Sections in this case. 11. It has also been contended by the learned counsel that after the opium was recovered, the samples taken, sealed and sent for examination in the FSL were in fact not of the same weight as weighed at the time they have been alleged to have been taken. They submit that some of the samples contained more weight, when weighed in the FSL and some of the samples were of less weight. In view of this, the contention of the learned counsel is that it is doubtful as to whether the contraband material alleged to have been recovered from the possession of the accused and the samples taken therefrom were the same samples which were sent to the FSL. 12. It has next been contended that PW 14 Govind Singh in his statement has stated that during the course of investigation he had taken out the samples from the Malkhana for verification and thereafter he kept the same in the Malkhana after verification. According to the learned counsel, no such entry appear to have been made which may disclose that on particular day the Malkhana was opened and the sealed articles of the present case were taken out from the Malkhana and after verification the same were kept in the Malkhana in sealed condition. 13. According to the learned counsel, no such entry appear to have been made which may disclose that on particular day the Malkhana was opened and the sealed articles of the present case were taken out from the Malkhana and after verification the same were kept in the Malkhana in sealed condition. 13. It has further been contended by the learned counsel that entry in the Malkhana Register Ex. P/13 will disclose that the sealed articles of the present case from the Malkhana have been taken out on two dated i.e. 27 of April and 28th April 2000 and handed over to PW 5 Satish Kumar for the purposes of depositing the same in the FSL, Jaipur whereas the witness says that he took the articles on 28th April 2000 only. 14. In the last, the learned counsel has contended that the independent witnesses PW 1 & PW 2 have not supported the case of the prosecution and the case simply depends on the testimony of the members of the raiding party. He contends that in the absence of reliable evidence when there are many jerks and jolts in the prosecution evidence, which has come on record, the prosecution has not been able to prove its case and accused-Appellants deserve to be acquitted. 15. On the other hand, the learned Public Prosecutor has submitted that even if the independent witnesses or the Motbirs have been declared hostile, the conviction could still be recorded on the basis of police witnesses provided they are reliable. 16. It has next been contended by learned. Public Prosecutor that the accused persons were apprehended and from their possession the opium was recovered and in the FSL report the samples gave positive test for the presence of opium. 17. The learned Public Prosecutor further submits that the learned Trial Court has passed a reasoned order convicting the accused-Appellants and their conviction is required to be maintained. 18. I have taken into consideration the rival submissions made before me. 19. 17. The learned Public Prosecutor further submits that the learned Trial Court has passed a reasoned order convicting the accused-Appellants and their conviction is required to be maintained. 18. I have taken into consideration the rival submissions made before me. 19. At the very outset, I may state here that the cases arising out of the NDPS Act require more care and caution while investigation is done and the evidence which is led should undoubtedly prove the factum that the recovery was effected from the accused persons and the recovered material was properly kept in sealed condition in the Malkhana and it reached ultimately for examination in FSL in the sealed condition. If this basic requirement is not fulfilled then no base conviction would not be legally sustainable. 20. Now I take up the arguments advanced by the learned counsel. 21. The contention of the learned counsel has been that in the instant case the samples from the recovered material ware taken of 50 grams each and if that is so then on weighing the same in the FSL, each sample should have been of 50 grams; no more, no less. A perusal of FSL report Ex.P/33 reveals that the substance contained in packets marked A/1, B/1, C/1, D/1 weighed 46.049 grams, 52.661 grams, 59.299 grams and 54.978 grams respectively and further the substance contained in packet marked E/1 and F/1 weighed 87.216 grams and 89.939 grams. There appears definitely variance in the weight. When the samples were taken, all the samples were of 50grams each whereas in some of the samples, as mentioned above, the weight has increased. The contention of the learned Public Prosecutor has been that at the time when samples were packet the black material/opium was in liquid form and it was quite possible that the weight might have reduced with the passage of time. Even for the sake of arguments, if this argument is taken to be correct then also the weight was required to be reduced but how the weight of samples which were taken of 50 grams, could increase upto 89.939 grams Is a mystery and in that view of the matter, I find that the argument advanced before me by the learned counsel deserves acceptance. 22. 22. The learned counsel has placed reliance on a decision reported in 2003(1) R.Cr.D. 533 (Raj.) Ayub v. State of Rajasthan wherein this Court has observed as under: "After the alleged recovery two samples weighing 30 grams each were separated and one of the samples was sent to the public analyst for chemical examination. Chemical Examination Report Ex.P/23 has been received and according to it the material was chemically examined, which was found to be juice of opium poppy and contained 9.60% morphine in it. However, Ex.P/23 makes mention that the material sent to the FSL was weighed and it was found to be approximately 15.5643 grms. alongwith the weight of polyethylene bag and the thread which were used before sealing the material. The defence argument is to the effect that the sample taken on the spot weighted 30 gms. whereas the packets which were examined by the public analyst weighed only half of it and thus, it is clear that either it was a different packet or the same was tampered sometime after 27.1.1999 when the material was seized." 23. In another case, reported in 2002(1) R.C.C. 293 - Nari @ Narain v. State of Rajasthan , the 3.5 grms smack seized, when received in the FSL, and weighed, turned out to be only 2 gms. This Court observed that difference in weight is important and creates doubt as to the fact that the smack examined was the same as was recovered from the accused appellant. In that case, benefit of doubt was given and the accused-Appellant was acquitted. 24. In the instant case, undoubtedly I find that there is variance in the weight of the samples when reached the FSL. So far as the other argument of learned counsel in relation to keeping the sample intact in Malkhana is concerned, I find that the evidence in this behalf led by the prosecution is not trustworthy inasmuch as in the statement of PW 14 Govind Singh, who has also conducted investigation in this case, at page 2 he has stated that during the course of investigation he took out the samples and the same were verified. He admitted this fact that he made neither a verification report nor any entry in the Malkhana Register. He has also stated that he did not put his seal. He admitted this fact that he made neither a verification report nor any entry in the Malkhana Register. He has also stated that he did not put his seal. He has further admitted that he does not know that the entries in this behalf were made in the Rojnamcha Aam. In other statement, PW 5 Satish Kumar in his cross-examination stated that he handed over the samples and papers to the In charge of the FSL and the same were delivered to him after two hours. The statement of this witness, if read with Ex.P/13, the entries made in the Malkhana Register, it transpires that this witness had taken the sample to the FSL twice; first time on 27th April and second time on 28th April, 2000.No evidence whatsoever has been brought on record to prove this aspect of the matter as to whether on 27th April the sealed samples of present case were taken out and on account of some reason the forwarding letter could not be issued and as such the same were taken by him again on 28th April, 2000. The witness PW 5 in his statement hesitated that he took the samples only on 28th April, 2000. Again, it is important to mention here that the forwarding letter issued from the office of the S. P. Chittor, which was handed over to PW 5 for depositing the samples in the FSL,, mentions the date as 24.8.2000 whereas PW5 says that he obtained the forwarding letter on 28.4.2000 and thereafter the samples in sealed condition of the present case were deposited in FSL on 29.4.2000. If that is so, then the prosecution case regarding the link evidence to prove that the samples of the present case kept in the Malkhana in sealed condition and whenever the same were taken out proper entries were made is doubtful. 25. In view of above, it appears that the police officials without making entries used to open the Malkhana of Police Station, Chhoti Sadri and the articles kept therein were seen and taken out and thereafter again kept inside. If it is so then it would be proper to rely upon such evidence. The evidence, thus, appears to be shaky in nature regarding keeping intact the recovered sealed contraband material in the Malkhana and thereafter sending the same in sealed condition to the FSL. 26. If it is so then it would be proper to rely upon such evidence. The evidence, thus, appears to be shaky in nature regarding keeping intact the recovered sealed contraband material in the Malkhana and thereafter sending the same in sealed condition to the FSL. 26. The another contention of the learned counsel has been that there has been no compliance at ail of Section 55 and 57 of the NDPS Act and for that adverse inference is required to be drawn. There is no dispute about the fact that these two provisions are not mandatory in nature but at the same time a complete non - observance of the provisions, in my opinion, makes the case doubtful and it requires minute scrutiny of the evidence led by the prosecution. Ex.P/18 was produced directly for the first time in the Court by PW 11 Pramod Kumar, who has stated in his chief that Ex.P/18 was throughout with him and he never handed it over to anybody in the Police Station or anywhere else. In the cross-examination, the witness has stated that he did not submit Ex.P/18 in the police station. He has stated that when he asked the constables of the police station about delivery of receipt Ex.P/18 to SHO or to someone in police station, then the constables told him that the same could be kept by him, therefore, he kept the receipt Ex.P/18 with him and the same was produced in the Court.Thus, it appears that there is no compliance of Section 57 of the Act as the information was required to be sent to the higher officials and in proof thereof that the intimation under Section 57 of the NDPS Act was actually sent to the higher police officers was required to be placed before the Court which has not been done in the present case. It is correct that compliance of this provision is not mandatory in view of the decision rendered by Hon'ble Apex Court in the case of Gurbux Singh v. State of Rajasthan, ( AIR 2001 SC 1002 ) in which the Hon'ble Supreme Court observed that it is true that provisions of Secs. It is correct that compliance of this provision is not mandatory in view of the decision rendered by Hon'ble Apex Court in the case of Gurbux Singh v. State of Rajasthan, ( AIR 2001 SC 1002 ) in which the Hon'ble Supreme Court observed that it is true that provisions of Secs. 52 and 57 are directory and violation of these provisions would not ipso facto violate the trial or conviction, however I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure. The Court said : "In the instant case, I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the Panch witness and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the NDPS Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser. Further it is apparent that the I.O. has not followed the procedure prescribed under Section 57 of the NDPS Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O., particularly when he did not know that the substance was poppy husk; but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that Muddamal seal used by the PSI was a wooden seal. As against this, it is the say of other prosecution witness that it was a brass seal. On the basis of aforesaid evidence and faulty investigation by the prosecution, it would not be safe to convict the accused for a serious offence of possessing poppy - husk." 27. In another case of Balvinder Singh & Anr. As against this, it is the say of other prosecution witness that it was a brass seal. On the basis of aforesaid evidence and faulty investigation by the prosecution, it would not be safe to convict the accused for a serious offence of possessing poppy - husk." 27. In another case of Balvinder Singh & Anr. v. State of Rajasthan, 2002(1) Cr.LR (Raj.) 345 , this Court in para 6 of the judgment has observed that in such cases the recovery officer is required to seal the samples on the spot with his personal seal and under Section 55 of the NDPS Act the packets are to be resealed at the Police Station prior to their deposit in the Malkhana. In that case the Malkhana Incharge did not say that compliance of Section 55 was made. 28. In the present case also, the statement of Malkhana Incharge nowhere makes a mention that he had put his seal. Be that as it may, as I have discussed above and found that the link evidence is missing in the present case to prove that the samples of the contraband material recovered from the possession of the accused-Appellants kept intact in the Malkhana and they were deposited in the FSL in intact position, the conviction recorded against the accused-Appellants by the Trial Court is not liable to be sustained. In the instant case, the Fard sample seal was not sent to the FSL for making compensation has not been disputed before me. In this connection, a reference may be made to a decision of the Hon'ble Apex Court reported in 2005 SCC (Criminal) 641 (State of Rajasthan v. Gurmail Singh ) wherein in para 3 of the Hon'ble Court has observed : "We further find that no sample of the seal was sent alongwith the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent." 29. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent." 29. It is not necessary for me to discuss in detail the other evidence led in this case by the prosecution as in the absence of reliable linking evidence the accused-Appellants are not liable to be convicted, more so, when there is no independent corroboration of the testimony of the police witnesses and particularly in the circumstances when there are several weaknesses in the prosecution case. No reliable evidence has been produced in this case to show that the samples were kept intact, they were properly sealed and were not tempered with. If that is so, then the accused are entitled to be acquitted of the charges framed against them. 30. In view of the foregoing discussions, the aforesaid two appeals deserves to be accepted and the same are hereby accepted. The impugned judgment of conviction and order of sentence recorded by learned Trial Court in Sessions Case No. 17 of 2000 dated 28.2.2002 is hereby set aside. The accused are in jail. If they are not required in any other case, they may be released forthwith.Appeal allowed. *******