JUDGMENT 1. - This is an appeal against the judgment of the learned Special Judge, NDPS Cases, Chittorgarh, dated 04.08.2003, whereby he has convicted the accused appellant Kailash Chandra for the offence under Sec. 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred-lo as "the Act" and sentenced him to undergo ten years' R.I. and a fine of Rs. one lac and in default to further undergo one year's S.I. 2. Facts leading to this appeal are that on 30.07.2000, Durga Dutt, Dy. S.P., Chittorgarh, received a secret message that accused Kailash Chandra will sell opium to the smugglers coming from outside in between Sarthal and Bhatiyaon Ka Kheda. The information was recorded in the Rojnamcha and after taking motbirs and after sending information under Sec. 42(2) of the Act, went at the spot. At 11.25 PM, one person came walking on foot from the side of Sarthal with one gunny bag in his hand. They caught hold of him and made a search. During search, opium measuring 5.500 Kgs. was recovered. Two samples of 30 gms. each were taken and sealed. After sealing the samples and the recovered articles, the case was registered under Sec. 8/18 of the Act. The samples were sent for chemical examination. After filing of the challan, the accused was charged under Sec. 8/18 of the Act, to which he pleaded not guilty. The prosecution examined 12 witnesses. The statement of accused was recorded under Sec. 313 Cr.P.C. He produced two witnesses in defence. After hearing, the learned trial Judge convicted the accused as above. 3. While assailing the judgment of the learned trial Judge, learned counsel for the appellant has questioned the legality of the judgment only on one point i.e. with regard to non-sending specimen seal on the samples and recovered articles by Durga Dutt, Dy.S.P., which was affixed at the time of recovery and also non-examination of the Malkhana Incharge Shankerlal. He has further submitted that this provision, though being directory, has been found to be fatal to the prosecution because of the fact that in the recovery memo, it is stated that the recovered opium was in liquid form but in the FSL Report, it is described as semi solid sticky substance. He has further submitted that this provision, though being directory, has been found to be fatal to the prosecution because of the fact that in the recovery memo, it is stated that the recovered opium was in liquid form but in the FSL Report, it is described as semi solid sticky substance. According to the learned counsel, this variance in the recovery memo and the FSL Report leads to the conclusion that non-production of the seal before the F.S.L. which was affixed at the time of recovery and non-examination of Malkhana Incharge, has resulted in tampering with the recovered articles. In support of his contention, he has relied upon certain citations, which will be referred at the appropriate place. 4. Per contra, learned Public Prosecutor has supported the judgment of the trial Court and has contended that the provisions of Section 55 are directory in nature and it cannot be said that the seal was tampered, because specimen seal of the Police Station was sent to the F.S.L. 5. Having considered the rival contentions put forth and going through the evidence on record, it reveals firstly from the statement of Durga Dutt (PW 1), who prepared Ex.P. 7, recovery memo, that the recovered opium was dark brown coloured liquid substance and the seal on this recovery memo is of Durga Dutt, Dy. S.P. marked as 'D', which was destroyed on the spot but a separate specimen impression was taken on memos Ex. P. 8 and Ex. P. 9. The FSL Report Ex. P.22, wherein the description of the articles has been given as dark brown coloured semi solid sticky substance. When this inconsistency in description of articles has been given in the recovery memo and the articles sent to F.S.L., then the Court has to see as to whether the seals were intact in accordance with Section 55 of the Act so as to arrive at the conclusion that the material recovered was infact sent for the chemical examination. In this regard, admittedly, officiating Malkhana Incharge Shankerlal, to whom the specimen seal impression and the articles were given on 31.07.2000, has hot been produced. The memo Ex.P. 14 is the entry of the Malkhana Register in the handwriting of Shankerlal and there in no mention of it that Shankerlal handed over the same to Radhey Shyam, Malkhana Incharge, who has been examined as PW 3. The memo Ex.P. 14 is the entry of the Malkhana Register in the handwriting of Shankerlal and there in no mention of it that Shankerlal handed over the same to Radhey Shyam, Malkhana Incharge, who has been examined as PW 3. Though he has admitted that he received the Malkhana on return and handed it over to Constable Devi Singh on 13.09.2000 for obtaining the forwarding letter from the S.P. and to get it deposited to the F.S.L. but in between 31.07.2000 and 13.09.2000 i.e. during the interval of one and half months, as to when he received the Malkhana vide Ex.P. 14 from Shankerlal, is not clear from his evidence, as he is silent on this point. Neither he has stated any specific date nor there is an entry to this effect in the Malkhan Register Ex.P.14. That apart, writing of 31.07.2000 about depositing Malkhana and 'A to B' entry of delivery on 13.09.2000 per se appears to be similar. It creates doubt as to how Radhey Shyam handed over Malkhana to Devi Singh on 13.09.2000 and pul his signature 'C to D' on 13.09.2000 on Ex.P.14. Recovery memo Ex. P. 7, where the seal affixed on the samples and articles is marked 'D' and admittedly, this seal has neither been sent to the FSL nor it has been produced in the Court nor there is an entry to this effect in the Malkhana Register of the Police Station. Resealing was made of the seal at the Police Station, which is available in Ex.P.14 Malkhana Register, memo of specimen seal Ex.P.15 and handing over of Malkhana Ex.P.16. Admittedly, it shows that there were two seals, one at the time of recovery, the impression of which waS marked 'D' and other seal at the time of resealing was of Police Station. When the first seal has not been deposited which was at the time of recovery in the Malkhana Register and has not been sent to the FSL and also not produced in the Court, then the question comes for consideration is as to where the original seal impression of Dy.S.P. was produced and what is the effect of second specimen seal of Police Station sent to F.S.L. 6. When the law provides for stringent punishment, then the directory provision has to be read as mandatory, particular when there is a possibility of tampering with the articles recovered. When the law provides for stringent punishment, then the directory provision has to be read as mandatory, particular when there is a possibility of tampering with the articles recovered. Here, in the present case, as stated above, only one seal of Police Station at the time of rescaling has been sent to the F.S.L. It is clear from the F.S.L. Report Ex.P. 22, where it is stated that only one sealed packet was received and also the letter of the S.P., which has been marked as Ex.P.21, whereby article 'A-1' was sent, also shows that only seal impression of the Police Station was sent with constable Devi Singh (PW 8). When he was asked about the seal impression in the cross examination, he stated that he cannot say as to whose seal impression was there. If his statement is read in the light of letter of S.P. Ex. P. 21 and FSL receipt Ex.P. 18, it appears that the sample was containing only the seal of the Police Station. This creates heavy doubt with regard to the contents of the substance as to whether it was in liquid form or sticky form. As held by the Hon'ble Supreme Court in Gurbax Singli v. State of Haryana, reported in 2001(3) SRJ 263 it is clear that violation of Sections 52 and 57 relating to search and seizure of articles does not ipso facto violate the trial and it was held as under: "It is true that provisions of Sections 52 and 57 are directory. 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 of the article. In the present case, I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness P.W.1 and was kept 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 Sec. 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." 7. He has also admitted that the muddamal parcels were not sealed by the Officer-in-charge of the Police Station as required under Sec. 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." 7. In the present case, the samples have also not been produced in the Court, except the Malkhana articles. In this regard, the Hon'ble Supreme Court in Noor Aga v. State of Punjab & Anr., in Criminal Appeal No. 1034 of 2008, decided on 09.07.2008 , has held thus: "134. We cannot but also lake notice other discrepancies in respect of the physical evidence which are: (i) xxx (ii) The seal, which ensures sanctity of the physical evidence, was not received along with the materials neither at the Malkhana nor at the CFSL, and was not produced in Court." 8. Likewise, this Court in Bhanwarlal v. State of Rajasthan, reported in 2006(1) R.Cr.D. 53 (Raj) , has also observed as under: "19. In view of the evidence discussed herein-above, it appears that the prosecution case is doubtful in relation to deposit of the contraband material in the Malkhana. The entries in the Malkhana Register Ex.P/13 and 13A are having variance of substantial nature. According to the witnesses, Narain Singh was Malkhana Incharge and he has not been produced. Jai Singh says that he was the Malkhana Incharge. Regarding seal, PW 10 says that it was sealed but no such seal was either sent to the FSL or produced in the Court. If the seal was sealed then how impression of that seal could come on the Malkhana Register?" 9. In Kailash & Ors. v. State of Rajasthan, reported in 2006 (1) Cr.LR (Raj) 320 the accused appellant was acquitted on the ground that the prosecution failed to establish that the samples taken are of same articles, which were seized by the officer, as the sample was not produced in the Court. 10. In view of the law as discussed above, it is clear that though the provisions of Section 55 of the Act are directory in nature but the prosecution cannot take advantage of proving case at its own without there being compliance of the statutory provisions of seizure and of sampling etc. by discharging its initial burden. 10. In view of the law as discussed above, it is clear that though the provisions of Section 55 of the Act are directory in nature but the prosecution cannot take advantage of proving case at its own without there being compliance of the statutory provisions of seizure and of sampling etc. by discharging its initial burden. A crime, which is stringently punishable, must be established against the accused in such a way, which may leave no room for the Court to arrive at a conclusion that the accused is guilty. Here in the present case, as discussed above, the prosecution has failed to produce Malkhana Incharge Shankerlal, who received and handed over the articles and seal impression taken at the time of seizure of articles to Radhey Shyam, PW-3. Non-production of seal of Dy.S.P. at the time of seizing the articles before the F.S.L. and the Court and variance in the recovered article as to whether it was in the liquid form or in the sticky form, creates heavy doubt about sampling & sending of the samples of recovered articles to F.S.L. in proper seal. The learned trial Court has not appreciated the evidence and the law in the light as discussed above. 11. Consequently this appeal is allowed. While setting aside the conviction of appellant Kailash Chandra for the offence under Sec. 8/18 of the Act recorded by the Special Judge, NDPS Cases, Chittorgarh vide his judgment dated 04.08.2003, he is acquitted for the charge levelled against him. He is in custody. He shall be released forthwith, if not required in any other case.Appeal Allowed. *******