Judgment S.P. Pathak, J.-Appellant Raja by filing criminal appeal has challenged his conviction and sentence under Section 8/15(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) passed by the learned Special Judge, NDPS Cases, Hanumangarh in Sessions Case No. 18/2000 vide Judgment of conviction and order of sentence dated 19.02.2002 whereby he has been sentenced to 10 years rigorous imprisonment and a fine of Rs. 1 Lac, in default of payment of fine to further undergo rigorous imprisonment for two years. 2. Against the said order passed by learned trial Court, petitioner Satnam Singh has approached this Court by filing the present Civil Revision Petition challenging the part of the Judgment of learned trial Court dated 19.02.2002 whereby the jeep said to be used in transporting illegal poppy husk was confiscated. As the revision petition arise out of the same order against which the appeal has been filed, the same was ordered to be listed alongwith the appeal. Now both these matters are being disposed of by this common Judgment . 3. Briefly stated, the prosecution case is that on 19.08.2000 PW. 10 Virendra Kumar Jakhar, while he was SHO, Police Station, Nohar, started for patrolling and Nakabandi in Govt. jeep alongwith police officials ASI Rajendra Prasad, LHC Mumtaz Ali, FC Bhanwarlal, FC Hari Singh with Driver Ishwarchand and while patrolling on main road from Nohar to Sahawa when they reached five kilometers away from Nohar at 6 PM, one red colour vehicle Gypsy was seen coming. The vehicle having Registration Number HNH 363 was stopped by giving signal. As soon as the vehicle came to a halt, a person, who was sitting by the side of the Gypsy Driver, got down and ran towards the fields. FC Bhanwarlal chased him but that person succeeded in fleeing away. On asking the name and address from the person sitting on the steering of Gypsy, he answered that he was Raja alias Gurcharan Singh, s/o Jeetsingh, resident of Dhookawali P.S. Oda, Tehsil Dabwali, District Sirsa (Haryana). In reply to the inquiry made to him about the person running away, the reason given was that there was poppy husk in the vehicle. In order to search Raja and the vehicle a written order was given to FC Harisingh for bringing Motibirs. In reply to the inquiry made to him about the person running away, the reason given was that there was poppy husk in the vehicle. In order to search Raja and the vehicle a written order was given to FC Harisingh for bringing Motibirs. At 6:45 PM, Hari Singh brought Motbirs Gangaram and Saddique Mohd, who were given notice about their willingness to become Motbirs and both the Motbirs consented to become Motbirs. The name of other accused was stated to be Rampratap by accused Raja. He was given notice under Section 50 of the Act to get himself searched in the presence of a Magistrate or some Gazetted officer, if he so wished but he agreed to be searched by the SHO. In search 17 bags of poppy husk were found in the vehicle containing 40 kgs of poppy husk in each bag. From each of the bags, two samples of 250 grams each were taken out in polythene bags and after putting them in cloth bags, same were sealed and marked as ‘A’ to ‘Q’. The rest of the poppy husk was filled in those bags again and sealed. Specimen Samples and Control Samples were marked A-1, A-2 to Q1 & Q2. On search of the vehicle, one number plate bearing No. DDN 2972, and in the dash board Form No.29-30 of Motor Vehicle Transfer and one affidavit of Manoharlal s/o Satpal relating Gypsy HNH 363 in favour of Satnam Singh, the petitioner, were found. A driving licence of Gurcharansingh was also found. The papers and the gypsy were seized by the police and accused was arrested. On the basis of recovery, FIR No. 314/2000 under Section 8/15 NDPS Act was registered and the report in detail was sent to the Superintendent of Police through Constable. 4. After completion of investigation, challan was submitted against accused Raja @ Gurcharan Singh and Rampratap @ Pratala under Section 8/15 NDPS Act however after hearing the parties Rampratap alias Pratala was acquitted of the charge under Section 8/15 NDPS Act on 12.2000 but against the present appellant Raja @ Gurcharan Singh charge under Section 8/15 was framed on 112.2000 after hearing on charge framing. Accused denied the charge and claimed trial. 5. The prosecution examined as many as 11 witnesses and tendered several documents in documentary evidence. 6. Accused denied the charge and claimed trial. 5. The prosecution examined as many as 11 witnesses and tendered several documents in documentary evidence. 6. After close of the prosecution evidence, in the statement under Section 313 of the CrPC, the accused denied the prosecution evidence and stated that he had come to Gogamedi and was standing with his relative at the bus-stand. There two constables came and taken him to the police station and there a false case was made out and his signatures were taken on papers but what was written in those papers was not in his knowledge. He stated that the Driving Licence was recovered from his pocket and on 19.08.2000 his brother Ramsingh was also brought to the police station but after taking bribe he was left out. In defence DW. 1 Thalsingh was examined. 7. After hearing both sides, the learned trial Court convicted and sentenced the accused-appellant as indicated hereinabove. 8. Aggrieved by the aforesaid Judgment of conviction and order of sentence, the appellant has filed the present appeal. 9. I have heard learned Counsel for the accused-appellant and also the learned Public Prosecutor for the State. 10. The contention of the learned Counsel is that the link evidence in this case is completely missing. According to the learned Counsel, PW. 9 Ramkaran is said to be the Malkhana Incharge before whom the seized contraband material was deposited by PW. 11 Virendra Kumar Jakhar, the seizing officer of the case but Exhibit P/17 the entries made in the Malkhana Register nowhere indicates that it was signed by PW. 11 Virendra Kumar Jakhar. It has further been submitted by the learned Counsel that the other witness who has been examined in this case in this regard is PW. 10 Kailash Chandra who is said to be the Malkhana Incharge prior to 19.08.2000 but no evidence has been brought on record to show that PW. 10 Kailash Chandra ever handed over the charge of Malkhana to PW. 9 Ramkaran. The learned Counsel submitted that even there is no evidence available on record to show that PW. 9 Ramkaran was ever posted in the Police Station, Nohar and if that is so then to say that the seized material of this case was deposited with a person who was duly authorized to receive the articles in Police Station is not legally correct. 9 Ramkaran was ever posted in the Police Station, Nohar and if that is so then to say that the seized material of this case was deposited with a person who was duly authorized to receive the articles in Police Station is not legally correct. Learned Counsel has further submitted that no memo of specimen seal was ever prepared in the present case because had it been prepared then the same was required to be sent to the FSL. According to learned Counsel it is not disputed that Memo of Specimen Seal was not sent for comparison to the FSL. The submission has been that compliance of basic requirement of law in this case is missing and on this score alone the prosecution case deserves to be thrown out. In support of his submission, the learned Counsel has placed reliance on the decisions of Honble Supreme Court reported in 2005(3) SRJ 422 -State of Rajasthan vs. Gurmail Singh, and 2003-04 CrLR [SC] [Suppl.] 699 - Jitendra & Anr. vs. State of M .P. 11. The learned Public Prosecutor, on the other hand, has submitted that in this case huge quantity of poppy husk was recovered from the possession of the accused while he was apprehended by the raiding party of the police and therefore in view of evidence of PW. 11 Virendra Kumar Jakhar wherein he says that he handed over the seized material to PW. 9 Ramkaran, it should be presumed to be a correct statement made by PW. 11. He further submitted that PW. 9 Ramkaran infact was temporarily attached in the Police Station, Nohar and since PW. 10 Kailash Chandra, who was having charge of the Malkhana had to go in election duty, he handed over the charge to PW. 9 Ramkaran and after his arrival from election duty again the charge of Malkhana came in his possession. According to learned Public Prosecutor, in this view of the matter when the seals were found intact on the samples sent to FSL then by the evidence adduced it is amply established that the prosecution has proved its case regarding linking evidence in the case and the argument of the learned Counsel for the appellant deserves to be rejected. 12. I have considered the arguments raised before me. 13. 12. I have considered the arguments raised before me. 13. It is to be seen that in this case the argument which has been advanced is of significant importance as much as that it ought not to be a matter of doubt that in a Police Station the seized materials pertaining to cases and other articles are deposited in the Malkhana with a person duly authorized in this regard in the matter in the capacity of Incharge Malkhana and if by the evidence it is established that the person who is alleged to have received the contraband material of case was never posted as Malkhana Incharge and further not even posted in the police station keeps with him the contraband material for time being and subsequently handed over the same to Incharge Malkhana and no evidence is brought before the Court to even show that under some orders such an arrangement was made then would it be legally proper to sustain conviction on such evidence. 14. To appreciate the contentions, the relevant evidence led by the prosecution may be discussed here. 15. PW. 9 is Ramkaran. He has stated that on 10.08.2000 he was Malkhana Incharge in Police Station, Nohar and on that day the seized contraband material of the present case No. 314/2000 was deposited with him by PW. 11 Virendra Kumar Jakhar. There were 17 bags of poppy husk alongwith 34 sealed sample packets and the same were entered in the Malkhana Register. The witness has proved Exhibit P/17 in this respect. The witness in reply to a court question about the seal has stated that the seal was affixed by him when the seized material was deposited in the Malkhana. In the cross-examination, the witness has admitted that there is no entry to the effect that the contraband material was deposited in the Malkhana by PW. 11 Virendra Kumar Jakhar - the seizing officer. The witness has further stated that the seal which was affixed on Exhibit P/17 is the seal which was used generally in the police station. He has further stated that other Investigating Officers also used the same seal. Thus, from the statement of this witness it appears that he was the person who was recipient of the seized contraband materials given to him by PW. 11 Seizing officer Virendra Kumar Jakhar. 16. PW. 10 is Kailash Chandra. He has further stated that other Investigating Officers also used the same seal. Thus, from the statement of this witness it appears that he was the person who was recipient of the seized contraband materials given to him by PW. 11 Seizing officer Virendra Kumar Jakhar. 16. PW. 10 is Kailash Chandra. Kailash Chandra is said to be a witness who was the Malkhana Incharge prior to PW. 9 Ramkaran. This witness in his statement has stated that on 29.08.2000 he was Malkhana Incharge in Police Station, Nohar. In the end of his examination-in-chief he has stated that he had gone on election duty and he came back from there on 20.08.2000 and thereafter he took charge of Malkhana from PW. 9 Ramkaran. In the cross-examination, he has stated that he has not mentioned about the fact that he took charge from PW. 9 Ramkaran of Malkhna on 20.08.2000. He has further admitted that he has not mentioned about the fact of taking over charge in Exhibit P/17. He has denied the suggestion that in fact the seizing officer handed over the seized contraband materials to him. He has admitted that Exhibit P/17 does not contain the signatures of PW. 11 Virendra Kumar Jakhar. Thus, from a perusal of the statement of this witness, it appears that no record is produced in the Court to prove the factum that prior to 19.08.2000 PW. 10 Kailash Chandra was the Malkhana Incharge. It further appears from his statement that on 20.08.2000 when he took over the charge, no entry was made anywhere in this regard in the Malkhana Register nor any such entry made was produced before the Court. It further appears that there is no mention about handing over or taking over charge in the Malkhana Register by him from PW. 9 Ramkaran. 17. PW. 11 Virendra Kumar Jakhar is the seizing officer of the case. In the cross-examination, this witness at Page 5 has admitted that there is no signatures on Exhibit D/5 the Rojnamcha entry regarding depositing of contraband material of present case on 19.08.2000. He has also admitted that other entries in Rojnamchas Exhibit D/2, D/3 and D/4 which are respectively of 20th 21st and 22nd of August, 2000, there is no entry of the name of PW. 9 Ramkaran because he was temporarily attached in the Police Station, Nohar. He has also admitted that other entries in Rojnamchas Exhibit D/2, D/3 and D/4 which are respectively of 20th 21st and 22nd of August, 2000, there is no entry of the name of PW. 9 Ramkaran because he was temporarily attached in the Police Station, Nohar. The witness has further stated that he does not know the exact date when PW. 9 Ramkaran was attached temporarily in the police station. A perusal of the statement of this witness is clearly suggestive of the fact that the attendance of PW. 9 Ramkaran, who is said to have been attached temporarily in Police Station, Nohar, was never marked in the Rojnamcha of the police station. No record concerning his posting temporarily or otherwise in Police Station, Nohar was produced in the Court and there appears to be no evidence brought on record to prove this aspect of the case that on account of election duty under some orders the charge of Malkhana was handed over to PW. 9 Ramkaran. 18. A perusal of Exhibit D/5 indicates that it is the copy of Rojnamcha dated 19.08.2000 in which at Serial No.8 attendance of PW. 10 Kailash Chandra as on duty has been shown. There appears to be no attendance of PW. 9 Ramkaran. It has not been mentioned that though his presence has been shown in Exhibit D/5 but he was out of Police Station in connection with the election duty. Exhibits D/2, D/3 and D/4 show the presence of PW. 10 Kaialsh Chandra at the police station on 20th, 21st and 22nd of August 2000 respectively. All these documents nowhere mention the name of PW. 9 Ramkaran. PW. 9 Ramkaran has also stated in his statement that no Memo of Specimen Seal was handed over to him. He has further stated in his statement that had the Memo of Specimen Seal would have been given to him, definitely entry of the same would have been mentioned in the Malkhana Register. 19. A perusal of above three statements of Sarva Shri RamKaran, Kailash Chandra and Virendra Kumar Jakhar and documents Exhibit D/2 to D/5 alongwith Exhibit P/17 entries of Malkhana Register clearly suggest that posting of Ramkaran temporarily or otherwise in Police Station, Nohar is not proved. It does not appear from the evidence produced by the prosecution that PW . 19. A perusal of above three statements of Sarva Shri RamKaran, Kailash Chandra and Virendra Kumar Jakhar and documents Exhibit D/2 to D/5 alongwith Exhibit P/17 entries of Malkhana Register clearly suggest that posting of Ramkaran temporarily or otherwise in Police Station, Nohar is not proved. It does not appear from the evidence produced by the prosecution that PW . 9 Ramkaran was ever given charge of Malkhana because no document in this regard has been brought on record. It has not further been established on the basis of above evidence and documents that on 19th of August 2000 PW . 9 Ramkaran was the Malkhana Incharge or from whom he took the charge of Malkhana. It is also not known that on 20th of August 2000 under whose order the charge of Malkhana was handed over to PW . 10 Kailash Chandra. No document in this regard has been produced before the Court. The Memo of Specimen Seal was neither prepared nor sent to the FSL has been established by the evidence of PW . 10 Kailash Chandra. Therefore, in my view, the very important piece of evidence keeping intact the seized material in the Malkhana is missing in the present case. 20. In the case of Gurmail Singh (supra) the Honble Apex Court in Para 2 has observed as under: “. . . Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the Malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the Malkhana till it was taken over by PW. 6 on June 5, 1995. We further find that no sample of the seal was sent along with the sample to 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.” 21. In the other case of Jitendra & Anr. 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.” 21. In the other case of Jitendra & Anr. (Supra), relied on by the learned Counsel, the Honble Apex Court finding no explanation of the prosecution for not producing the seized contraband material in the Court and the Panchas of recovery having been turned hostile so also not sending the memo of seal affixed on the samples for comparison to the FSL, held that the prosecution case was not proved. 22. In view of the pronouncements of the Honble Apex Court and in view of the fact that in the absence of satisfactory evidence regarding a person remaining Malkhana Incharge, taking the delivery of contraband material and subsequently handing over the charge to another person in the sealed condition and thereafter sending the same to FSL have not been established in the present case and if that is so then only on this score the charges against the accused-appellant cannot be said to be established beyond reasonable doubt. 23. In view of above, I am satisfied that it is not necessary to discuss the other evidence in the present case particularly when the Motbir witnesses of the present case have turned hostile and they have not supported the prosecution case and the rest of the witnesses are police witnesses. The evidence of three witnesses has already discussed hereinabove out of whom one is the Seizing Officer and the other two police officials are the Malkhana incharge in the present case. 24. In view of foregoing discussion, the findings of guilt recorded by the learned trial Court against the accused-appellant in the absence of reliable link evidence which is missing in the present case, it cannot be said that the prosecution has been able to prove the charge beyond reasonable doubt against the accused appellant, therefore, the conviction and sentence awarded by the learned trial Court deserves to be set aside. 25. 25. As regards the revision filed by Satnam Singh, learned Counsel submitted that the grievance of the petitioner is that while convicting the accused-appellant by the impugned order the learned trial Court has also passed order to confiscate the vehicle alleged to be used in transporting the contraband material without hearing the owner of the vehicle. According to the learned Counsel, since the owner of the vehicle was not heard, the order confiscating the vehicle without hearing the owner is bad in the eye of law and as such while setting aside that part of the order the matter may be remanded back to the trial Court with a direction to dispose off after providing opportunity of hearing to the parties. The learned Public Prosecutor has opposed the revision but has not disputed the factum that the owner of the vehicle was not heard in the present case. In view of above, I deem it just and proper to set aside the order passed by learned trial Court relating to confiscation of the vehicle and remit the matter to the trial Court to dispose of the matter relating to vehicle afresh after giving opportunity of hearing to the parties. 26. The net result of the above discussions is that appeal filed by accused-appellant is allowed and the revision is disposed off in view of observations made above. Consequently, the impugned Judgment of conviction and order of sentence recorded by learned trial Court against accused-appellant in Sessions Case No. 18/2000 dated 19.02.2002 stands set aside and the part of the order of learned trial Court whereby the vehicle has been confiscated, also stands set aside and it is directed that the learned trial Court shall decide the matter afresh on the point of confiscation of the vehicle after following due procedure of law and giving opportunity of hearing to the parties concerned. 27. The accused is in jail. He be released forthwith, if not required in any other case.