JUDGMENT Sham Sunder, J.:- This appeal is directed against the judgment of conviction, and the order of sentence dated 5.10.2000, rendered by the Special Judge, Ferozepur, vide which he convicted the accused (now appellant), for the offence punishable under Section 15 of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter called as ‘the Act’ only) and sentenced him, to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of one year, for having been found in possession of 20 Kg. 250 grams poppy-husk (now falling within the ambit of non-commercial quantity), without any permit or licence. 2. The facts, in brief, are that on 16.9.1997, Bachan Singh, ASI, Incharge, Police Post Kot Ise Khan, alongwith other police officials, was going in a Canter, for patrol duty, from village Kot Sadar Khan, to village Masitan, and when the police party reached at the bridge of the canal minor, in the area of village Masitan, at about 3.00 PM, Bagga Singh, accused, was seen coming from the opposite side, carrying a gunny bag, on his head. On seeing the police party, the accused, turned towards his right side, but was apprehended, on suspicion. On search of the gunny bag, being carried by the accused, in accordance with the provisions of law, in the presence of Nachhattar Singh, DSP, who was called to the spot, by sending a wireless message, 20 Kg. 250 grams poppy-husk, was recovered. A sample of 250 grams of poppy-husk, was separated therefrom, and the remaining poppy-husk, was put in the same gunny bag. The sample, and the gunny bag, containing the remaining poppy-husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. The statements of the witnesses, were recorded. Rough site plan of the place of recovery, was prepared. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty and claimed trial. 4. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty and claimed trial. 4. The prosecution, in support of its case, examined Ranjit Singh, Constable (PW-1), Jaswinder Singh, HC (PW-2), Bachan Singh, ASI (PW-3), the Investigating Officer, Nachhattar Singh, DSP (PW-4), Anokh Singh, DSP (PW-5), (at the relevant time SHO), and Lal Singh, ASI, (PW-6). Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, did not lead any evidence, in his defence. 6. After hearing the Addl. Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, at the very outset, submitted that though the alleged recovery was effected, at a thoroughfare, yet no independent was joined, by the Investigating Officer, nor any attempt was made to join him, as a result whereof, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. The recovery, in the instant case, was allegedly effected at a thoroughfare, during the day time. Bachan Singh, ASI, (PW-3), the Investigating Officer, during the course of his cross-examination stated that, when he sent wireless message to the DSP, he did not ask him, to bring an independent witness. He further stated that, he did not send anybody to the villages, to bring any independent witness. He further stated that, he asked Baldev Singh, HC, to bring weight, scales, and also an independent witness. No mention of this factum, was made by him, in the case diary, or any other document, prepared at the spot. He further stated that, he did not send anybody to the villages, to bring any independent witness. He further stated that, he asked Baldev Singh, HC, to bring weight, scales, and also an independent witness. No mention of this factum, was made by him, in the case diary, or any other document, prepared at the spot. Had an attempt been made by Bachan Singh, ASI, the Investigating Officer, to join an independent witness, and had no independent witness been ready to join the search and seizure, he would have certainly made a mention of this factum, either in the case diary, or in the ruqa, or in other documents, prepared at the spot. However, neither, in the case diary, nor in the other documents, prepared at the spot, such a fact, was recorded by Bachan Singh, ASI. This shows that no effort, whatsoever, was made to join an independent witness, despite availability. Since minimum stringent punishment is provided for the offences, punishable under the Act, and according to the provisions of Section 51 of the Act, the provisions of the Code of Criminal Procedure, relating to search, seizure and arrest shall apply to the extent the same are not inconsistent with the provisions of the Act, it was imperative, on the part of the Investigating Officer, to join an independent witness, at the time of the alleged search, and seizure or at least to make a genuine, sincere and real effort, to join such a witness. The search and seizure, before an independent witness, would have imparted much more authenticity and creditworthiness, to the proceedings, so conducted. It would have also verily strengthen the prosecution case. The said safeguard was also intended to avoid criticism of arbitrary and high-handed action, against the authorized Officer. In other words, the Legislature, in its wisdom, considered it necessary to provide such a statutory safeguard, to lend credibility to the procedure, relating to search and seizure, keeping in view the severe punishment, prescribed under the Act. That being so, it was imperative for the authorized Officer, to follow the reasonable, fair and just procedure, as envisaged by the Statute, and failure to do so, must be viewed with suspicion. That being so, it was imperative for the authorized Officer, to follow the reasonable, fair and just procedure, as envisaged by the Statute, and failure to do so, must be viewed with suspicion. The legitimacy of judicial procedure, may come under cloud, if the Court is seen to condone acts of violation of statutory safeguards, committed by the authorized officer, during search and seizure operation and may also undermine respect of law. That cannot be permitted. In the instant case, the alleged recovery being minor, now falling within the ambit of non­commercial quantity, and chances of plantation of the same, against the accused, could not be ruled out, it became the bounden duty of the Investigating Officer, to observe all the safeguards, provided under the Act, at the time of search and seizure. It is, no doubt, true that, in the absence of corroboration through an independent source, the evidence of the official witnesses, cannot be disbelieved and distrusted, blind-foldely, if the same is found to be creditworthy. However, when the evidence of the official witnesses, is found to be not cogent convincing, reliable and trustworthy, then on account of non-corroboration thereof, through an independent source, certainly a doubt is cast, on the prosecution story. In the instant case, the evidence of the prosecution witnesses, does not inspire confidence, in the mind of the Court. In this view of the matter, non-corroboration of the evidence of the official witnesses, through an independent source, certainly makes the case of the prosecution suspect. In State of Punjab Vs. Bhupinder Singh 2001 (01) RCR (Crl.) 356, a Division Bench of this Court, held the case of the prosecution, to be doubtful, on account of non-joining of an independent witness, though the recovery was effected from a busy locality. In State of Punjab Vs. Ram Chand 2001 (1) RCR (Crl.) 817, a Division Bench of this Court, held that it was imperative to join an independent witness, to vouchsafe the fair investigation. On account of non-joining of an independent witness, it was held that the accused was entitled to be given the benefit of doubt. The principle of law, laid down, in the aforesaid authorities, is fully applicable, to the facts of the instant case. On account of non-joining of an independent witness, at the time of the alleged search and seizure, the case of the prosecution, became highly doubtful. The principle of law, laid down, in the aforesaid authorities, is fully applicable, to the facts of the instant case. On account of non-joining of an independent witness, at the time of the alleged search and seizure, the case of the prosecution, became highly doubtful. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 10. It was next submitted by the Counsel for the appellant, that though the alleged recovery, in this case, was effected on 16.9.1997, yet the sample was sent to the office of the Chemical Examiner, on 24.9.1997, and as such, the delay of 8 days was not explained, by the prosecution witnesses. He further submitted that, under these circumstances, the possibility of tampering with the case property, and the sample parcels, could not be ruled out, especially, when the seals, remained in possession of the police officials, in whose possession, the sample parcel, and the case property remained. The submission of the Counsel for the appellant, in this regard, appears to be correct. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the delay of 8 days, in sending the sample to the office of the Chemical Examiner. It is the duty of the prosecution, to prove beyond a reasonable doubt, that none tampered with the sample, till the same reached the office of the Chemical Examiner. Since, the sample was allegedly sent to the office of the Chemical Examiner, after 8 days, it could not be safely held that the same remained un­tampered with. This fact casts a shadow of doubt, on the case of the prosecution. In Gian Singh Vs. State of Punjab, [2006(2) LAW HERALD (P&H) 1006 ] : 2006(2) RCR (Criminal) 611, there was a delay of 14 days, in sending the sample to the office of the Chemical Examiner. Under these circumstances, it was held that the possibility of tampering with the sample, could not be ruled out, and the link evidence was incomplete. Ultimately, the appellant was acquitted, in that case. In State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme Court), the contraband remained in the Malkhana for 15 days. The malkhana register was not produced, to prove that it was so kept in the malkhana, till the sample was handed over to the Constable. Ultimately, the appellant was acquitted, in that case. In State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme Court), the contraband remained in the Malkhana for 15 days. The malkhana register was not produced, to prove that it was so kept in the malkhana, till the sample was handed over to the Constable. In these circumstances, in the aforesaid case, the appellant was acquitted. In Ramji Singh Vs. State of Haryana 2007 (3) RCR (Criminal) 452, the sample was sent to the office of the Chemical Examiner after 72 hours, the seal remained with the police official, and had not been handed over to any independent witness. Under these circumstances, it was held that this circumstance would prove fatal to the case of the prosecution. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the sample, until it reached the office of the Chemical Examiner. The other evidence produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. In these circumstances, the principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. The delay of 8 days, in sending the sample to the office of the Chemical Examiner, and non-strict proof, by the prosecution, that the same was not tampered with, till it was deposited, in that office, must prove fatal to the case of the prosecution, as the possibility of tampering with the same, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 11. It was next submitted by the Counsel for the appellant, that the statement of Nachhattar Singh, DSP, under Section 161 Cr.P.C., was not recorded, as a result whereof, it could not be said, that he was present at the time of alleged search and seizure. He further submitted that, on account of this reason, the case of the prosecution became highly doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. Nachhattar Singh, DSP, when appeared as, PW-4, during the course of his cross­examination stated that his statement was not recorded by Bachan Singh, ASI, the Investigating Officer. He further stated that he did not sign any document, of this case. The submission of the Counsel for the appellant, in this regard, appears to be correct. Nachhattar Singh, DSP, when appeared as, PW-4, during the course of his cross­examination stated that his statement was not recorded by Bachan Singh, ASI, the Investigating Officer. He further stated that he did not sign any document, of this case. Both these factors, therefore, clearly establish that the possibility of the presence of the DSP, at the spot, at the time of search and seizure, was ruled out. No explanation, whatsoever, was furnished by the Investigating Officer, as to what prevented him, from recording the statement of Nachhattar Singh, DSP, (PW-4), under Section 161 Cr.P.C. In Padam Singh Vs. State of Haryana, 1997 (4) RCR (Criminal) 172 (Division Bench) (P&H), the statement of the DSP, who allegedly reached the spot, at the time of search and seizure, under Section 161 Cr.P.C, was not recorded. The Division Bench, in the aforesaid authority, under these circumstances, held that non-recording of the statement of such an important witness, was a serious irregularity, which considerably prejudiced the accused and may make his testimony tainted. Ultimately, on this ground, and, on other grounds, the conviction was set aside. The principle of law, laid down, in the aforesaid authority, is applicable to the facts of the present case. Non-recording of the statement of Nachhattar Singh, DSP, by Bachan Singh, ASI, the Investigating Officer, clearly proved that, at the time of the alleged search and seizure, he (DSP) was not present, at the spot. The case of the prosecution, therefore, became highly doubtful, on account of this reason. 12. It was next submitted by the Counsel for the appellant, that the link evidence, in this case, was incomplete, as the evidence of Anokh Singh, the then SHO (PW-5), is discrepant, as to whether he handed over the sample parcel to Ranjit Singh, Constable, directly, or the MHC handed over the same, to him. The submission of the Counsel for the appellant, in this regard, appears to be correct. Anokh Singh, the then SHO (PW-5), in his examination-in-chief, stated that he kept the case property from 16.9.1997 to 24.9.1997, in his possession, in the malkhana, and on 24.9.1997, he handed over the sample parcel to Ranjit Singh, Constable, for deposit, in the office of the Chemical Examiner. Anokh Singh, the then SHO (PW-5), in his examination-in-chief, stated that he kept the case property from 16.9.1997 to 24.9.1997, in his possession, in the malkhana, and on 24.9.1997, he handed over the sample parcel to Ranjit Singh, Constable, for deposit, in the office of the Chemical Examiner. However, during the course of cross-examination, it was stated by him, that the case property, and the accused were produced before him, by the Investigating Officer at 10.30 PM, on 16.9.1997. He further stated that entry, in the register No.19 was made by the MHC, on his direction. He further stated that the case property was taken, on the next day, at about 10.45 AM, and an entry, in this respect, was also got made in register No.19. He also stated that an entry, in this respect, was made in the DDR. It means that the case property, and the sample parcels, if deposited in the malkhana, remained in the custody of the MHC. Once the case property was deposited in the malkhana, it could not be said that the same remained in the custody of the SHO. Neither the MHC, was examined, nor his affidavit was tendered into evidence. Had the other evidence produced by the prosecution, to prove the completion of link evidence, been found to be cogent and convincing, non-examination of the MHC, or non tendering of his affidavit, into evidence might not have made any difference. In those circumstances, from the cogent and convincing evidence produced by the prosecution, it would have been said that the link in the chain of the prosecution evidence was complete. Since, the other evidence, to prove the link evidence, has been found to be deficient, and unreliable, non-examination of the MHC, with whom, the case property was deposited, certainly cast a doubt, on the prosecution story. This aspect of the matter, was not taken into consideration, by the trial Court, as a result whereof, it fell into a grave error, in recording conviction, and awarding sentence. 13. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are not based on the correct appreciation of evidence, and law, on the point. 13. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are not based on the correct appreciation of evidence, and law, on the point. Had the trial Court taken into consideration, the aforesaid infirmities and lacunae, it would not have reached the conclusion, that the accused committed the offence, punishable under Section 15 of the Act. The judgment of conviction and the order of sentence are, thus, liable to be set aside. 14. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 5.10.2000, are set aside. The appellant shall stand acquitted of the charge, framed against him. If, he is on bail, he shall stand discharged of his bail bonds. If, he is in custody, then he shall be set at liberty, at once, if not required in any other case. ----------------