Judgment Virender Singh, J. 1. Paramjit Singh appellant stands convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the `Act) vide impugned judgment of learned Additional Sessions Judge, Hisar dated 22/24.2.2001 and has been sentenced to undergo RI for ten years and to pay a fine of Rs. one lac, in default of payment of which to suffer further RI for two years. Hence this appeal. 2. The allegation against the appellant is that on 12.2.1996, he was found in conscious possession of 3 gunny bags tied with the lift of tractor, each containing 40 kgs of poppy straw. 3. Briefly, the case of the prosecution is that Kharaiti Lal (PW-5) along with SI Partap Singh (PW-4) and other police officials was present at railway crossing of village Laloda when around 4-30/5-00 A.M. a tractor bearing registration No. HR-23/5388 was seen coming from the side of village Pirthtala. It was being driven by the appellant. He was asked to stop the tractor. Suspecting the bags to be containing some contraband, a notice (Ex. PC) was served upon the appellant, apprising him of his statutory right of being searched in the presence of a gazetted officer or a Magistrate. Vide reply (Ex. PD), he expressed his confidence in SI Kharaiti Lal. Thereafter the search of the said bags was conducted. All the three bags were found to contain poppy straw. 200 grams from each bag was separated as sample. The remainder on weighment was found to be 39 kgs 800 grams in each bag. The samples and the remainder bags were converted into sealed parcels and sealed with the seal bearing impression `RR. The tractor as well as the case property were taken into possession vide recovery memo. Ex. PE, attested by the witnesses. Ruqqa (Ex. PE) was sent to the police station on the basis of which formal FIR (Ex. PF/1) was recorded. SI Kharaiti Lal then prepared the rough site plan (Ex. PG). On return to the police station the case property, the appellant and witnesses were produced before incharge of the said police station Sadar Tohana, who after verifying the facts affixed his own seal on the case property as well as the sample parcels and under his directions the case property was deposited with HC Ram Kumar (PW-2). 4. PG). On return to the police station the case property, the appellant and witnesses were produced before incharge of the said police station Sadar Tohana, who after verifying the facts affixed his own seal on the case property as well as the sample parcels and under his directions the case property was deposited with HC Ram Kumar (PW-2). 4. On 14.2.1966 ASI Ishwar Singh (PW-6) partly investigated the case, took into possession registration certificate (Ex. PL) of the tractor vide recovery memo. Ex. PM and he also recorded statements of certain witnesses including Swarn Singh (PW-7), owner of the truck. 5. On receipt of the report from Forensic Science Laboratory and after completion of investigation, the appellant was challaned. He was charged under Section 15 of the Act. As stated above, he has now suffered conviction. 6. In order to substantiate its charge against the appellant, the prosecution has examined as many as 8 witnesses. The witnesses of recovery are SI Partap Singh (PW-4) and SI Kharaiti Lal (PW-5). The investigation conducted by SI Kharaiti Lal, the Investigating Officer has already been alluded to in the preceding paras. SI Partap Singh corroborates the statement of the Investigating Officer. 7. In order to prove the link evidence, the affidavits (Exs. PA and PB respectively) of HC Ram Kumar (PW-2) and Constable Ranbir Singh (PW-3) have been tendered into evidence. 8. PW-7 Swaran Singh has deposed to the effect that he is registered owner of tractor No. HR-23/5388 and had got it released from the Court on spurdari. 9. DSP Shadi Lal (PW-8) has deposed regarding compliance of Section 57 of the Act. 10. The stand taken by the appellant in his statement under Section 313 Cr.P.C. is of false implication. He asserts that on 11.2.1996 at about around 8.00 P.M., police came to his residential house in village Tharvi and requested for help stating that their jeep had broken down in the mud, upon which his father asked him to accompany them with the tractor; that thereafter the police registered a false case against him at the instance of Jagroop Singh, Karnail Singh sons of Maghi Singh of his village Tharvi. 11. 11. In defence, the appellant produced Rameshwar (DW-1), whose evidence is to the effect that on 11/12.2.1996 he was on duty at railway crossing known as C-12 on the Pirthala Laloda road; that he did not see the appellant that night nor any police near the said crossing on that night. 12. Gurdev Singh (DW-2) has also deposed to the same effect. 13. Radhey Shyam (DW-3) is a photographer, who has produced photographs Exhibits D-6 to D-10 of railway crossing situated on the road from Pirthala to Laloda, the negatives of which are Exhibits D-1 to D-5. 14. Baljit Singh (DW-4) has been produced to show that Rameshwar and Gurdev Singh key men in gang No. 8 were present at railway crossing situated between Barwala and Bugana. 15. Karnail Singh (DW-5) has produced the muster sheet pertaining to the salary bill for the month of February, 1996. 16. I have heard Mr. Dhirender Chopra, learned counsel for the appellant and Mr. Ajay Ghanghas, learned Deputy Advocate General, Haryana. With their assistance, I have gone through the entire record minutely. 17. The first attack launched on the prosecution case from the side of learned counsel for the appellant is that independent witnesses were not joined in this case although they were available and this weakness dents the prosecution case. Dwelling upon his arguments, the learned counsel contends that the recovery has been effected near the railway crossing of village Laloda where at least the gatemen on the railway crossing were present and they could be asked to be witnesses to recovery, but no such effort has been made by the Investigating Officer. In this regard, the learned counsel has drawn my attention to the statements of Rameshwar (DW-1) and Gurdev Singh (DW-2), who have stated that on the night intervening 11/12-2-1996, they were present as gatemen at the said railway crossing. Rameshwar DW-1 has categorically stated that he was on duty from 8.00 P.M. to 8.00 A.M. The recovery is allegedly effected at about 5.00 A.M. The learned counsel contends that non-joining of an independent witness before effecting the recovery creates doubt in the case of the prosecution. 18. Rameshwar DW-1 has categorically stated that he was on duty from 8.00 P.M. to 8.00 A.M. The recovery is allegedly effected at about 5.00 A.M. The learned counsel contends that non-joining of an independent witness before effecting the recovery creates doubt in the case of the prosecution. 18. The other attack made on the prosecution case is that in fact no recovery was effected in the manner now projected and the appellant was illegally detained in the police station and subsequently all the formalities were completed in the police station itself. In this regard, the learned counsel has drawn my attention to the ruqa (Ex. PF) on the basis of which formal FIR was recorded. In the said ruqa, it is mentioned by Kharaiti Lal, the Investigating Officer that after effecting the recovery, all the three bags containing poppy straw were sealed with the seal bearing impression `RR. The learned counsel contends that there is interpolation in this regard and over the words `KR, the words `RR are shown. According to the learned counsel, there is no other police official accompanying Kharaiti Lal, with the initials of `RR. In order to overcome this infirmity, Kharaiti Lal, the Investigating Officer when stepped into the witness-box has deposed that the case property was sealed with the seal bearing impression of RR. So is the stand of Partap Singh (PW-4), the other witness of recovery. From the aforesaid infirmity, the learned counsel wants to develop that in fact nothing had happened at the railway crossing and all the formalities were completed in the police station itself after the appellant was illegally detained there. From this angle as well, the case of prosecution is not free from doubt, the learned counsel so contends. The learned counsel then submits that although SI Kharaiti Lal, the Investigating Officer has stated in his substantive statement that the appellant along with the case property and the witnesses were produced before the SHO and the latter after verifying all the facts put his own seal bearing impression `SC on the case property and the sample parcel, but non- examination of the SHO to prove the said fact is fatal to the prosecution case. No convincing evidence has been brought forward to show the compliance of Section 5 of the Act inasmuch as the sample parcel chit is not even produced on the judicial file. No convincing evidence has been brought forward to show the compliance of Section 5 of the Act inasmuch as the sample parcel chit is not even produced on the judicial file. The chances of tampering with the sample parcel till it reached the hands of the chemical examiner, thus, cannot be ruled out. This infirmity also weakens the case of the prosecution. The learned counsel further contends that there is delay of one month is sending the sample parcel to the office of the Forensic Science Laboratory as the recovery was allegedly effected on 12.2.1996 whereas the sample parcel reached the said office on 12.3.1996; that the delay in sending the sample by itself is enough to create doubt in the prosecution story. He further submits that coupled with the fact that no independent witness was joined and the seal used for sealing the sample remained with the police official during the entire period of one month, all these are good grounds for discarding the case of the prosecution in its entirety. In support of his contention, the learned counsel relies upon a Division Bench judgment of this Court rendered in State of Punjab v. Jaswant Singh, 2002(3) RCR(Crl.) 548. 19. On the aforesaid submissions, the learned counsel contends that the appellant deserves acquittal. 20. Repudiating the submissions made on behalf of the appellant, the learned State counsel contends that there is no reason to disbelieve the official witnesses as no material discrepancy is there in their subsequent statements, which may demolish the case of the prosecution. He then contends that the recovery in this case is very heavy and even if some weaknesses are there, may be in the shape of non-compliance of the provisions of Section 55 of the Act or delay in sending the sample to the Chemical Examiner, the same would have no adverse effect on the prosecution case. The appellant has, thus, no escape from his liability, the learned State counsel contends. 21. After hearing the rival contentions of both the sides and going through the entire evidence minutely, I am of the view that the prosecution has not been able to prove its case against the appellant to the hilt and he deserves to be acquitted. 22. The case of the appellant as emerging from his defence plea is that he has been falsely implicated. He comes up with a specific plea. 22. The case of the appellant as emerging from his defence plea is that he has been falsely implicated. He comes up with a specific plea. In support of it, he has also produced some witnesses including Rameshwar and Gurdev, the gatemen at railway crossing on Pirthala-Lalode road. Learned counsel for the appellant has made an attempt to develop his case on the basis of the defence plea, contending that the Investigating Officer had intentionally not joined any independent witness in this case despite the fact that the persons were available at the spot. I find force in his submissions and this fact creates doubt about the very case of the prosecution. Other weaknesses make it more weak. Admittedly the alleged recovery is effected near the railway crossing where Rameshwar and Gurdev Singh were present. No attempt has been made by the Investigating Officer to join them. It is not his case that he had made an effort to call them or that they refused. No doubt, at one stage Partap Singh (PW-4) in cross-examination has stated that efforts were made to join independent witnesses but no one agreed to join. In my view, this explanation is of no effect when SI Kharaiti Lal, the Investigating Officer does not talk a word about it. The fact remains that the recovery is not effected in the presence of any independent witness. The whole of the prosecution case thus hinges upon the testimony of official witnesses only and in my view their evidence is also not free from doubt. 23. Let us examine the case of the prosecution from other aspects as well. After the recovery is effected, the seal is handed over to SI Partap Singh (PW-4), as is evident from his statement and even from the deposition of Kharaiti Lal, the Investigating Officer. The seal used for the purpose of sealing articles is having seal impression `RR. Admittedly there was no police official in the raiding party, for whose name the abbreviated words `RR have been used as seal impression. No doubt, the Investigating Officer can use any seal for the purpose of sealing the case property and no clarification has been sought from him with regard to the aforesaid ambiguity at the time of his cross-examination, but interpolation in initial rukka (Ex. PF) creates doubt, in my mind, about the entire process of effecting recovery. 24. No doubt, the Investigating Officer can use any seal for the purpose of sealing the case property and no clarification has been sought from him with regard to the aforesaid ambiguity at the time of his cross-examination, but interpolation in initial rukka (Ex. PF) creates doubt, in my mind, about the entire process of effecting recovery. 24. I have very minutely seen the ruqqa (Ex. PF) in this regard with the help of a magnifying glass. It is evident from this that the letters `KR have been over-written as `RR. No doubt in the recovery memo (Ex. PF) subsequently prepared by the Investigating Officer it is reflected that the seal used for sealing the sample parcels and case property was bearing impression `RR, but in my opinion, the entire investigation is engulfed in doubts. For this reason, I am applying the test of more care and caution in re-scanning the evidence of official witnesses, especially when no independent witness is joined. 25. Adverting to the other infirmities in the case of the prosecution, the admitted position is that the sample parcel reached the office of the Forensic Science Laboratory after one month. The seal after use was handed over to SI Partap Singh, which remained with him throughout and the SHO, who put his own seal upon the sample parcel and the case property, has not been produced in the witness-box. 26. In State of Punjab v. Jaswant Singh (supra), there was delay of 21 days in depositing the sample with the Chemical Examiner. Besides, this, no independent witness was joined and seal used for sealing the samples remained with the police official during this period. The Honble Bench while upholding acquittal of the accused observed in para 10 of the judgment as follows : "In our opinion, the delay of 21 days in sending the case property to the Chemical Examiner would be fatal to the case of the prosecution, especially when admittedly no independent witness was joined in the recovery proceedings and the seal used for sealing the samples remained with the Police Officials during this period." 27. No doubt the provisions of Section 55 of the Act are not mandatory in nature and the accused has to show that prejudice has been caused to him on account of the non-compliance thereof as held in Sajan Abraham v. State of Kerala, 2001(3) RCR(Crl.) 808 (SC), but in my considered view the instant case if seen in the light of the infirmities discussed hereinabove, no-compliance of the aforesaid provisions does cause prejudice to the appellant. 28. No other point has been urged by either side. 29. The aforesaid discussion leads to an irresistible and unequivocal conclusion that the prosecution has miserably failed to establish the charge against the appellant beyond any shadow of doubt. Consequently, the appeal succeeds and is hereby allowed, the impugned judgment of conviction is hereby set aside. The appellant is acquitted of the charge.