JUDGMENT Sham Sunder, J 1. This appeal is directed against the judgment of conviction dated 21.07.2001 and the order of sentence dated 24.07.2001, rendered by the Court of Additional Sessions Judge, Sirsa, vide which it convicted the accused (now appellant), for the offence, punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to be as the 'Act' only) and sentenced him to undergo RI for a period of 10 years, and to pay a fine of Rs. 1 lac, in default of payment of fine to undergo further rigorous imprisonment, for a period of one year, for having been found in possession of 1 KG 100 grams opium milk, which now falls within the ambit of non-commercial quantity, without any permit or licence. 2. The facts, in brief, are that on 13.03.2000 ASI Balwant Singh, along-with some other police officials, apprehended the accused at Vitas Karma Chowk, Sirsa, when he was moving under suspicious circumstances, with a bag, resting on his shoulder. The search of the bag, being carried by him, was conducted, in the presence of Mr. Mahinder Singh Malik, Dy. Superintendent of Police ( HQ ), who was called to the spot, by sending a message, as a result whereof, 1 KG 100 grams opium milk, was recovered therefrom. A sample of 100 grams of opium milk, was taken out of the recovered contraband, and the remaining opium milk, was kept in a separate container. The sample and the container, containing the remaining opium milk, 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, the FIR was recorded. The site plan was prepared. The accused was arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 18 of the Act, was framed against the accused, to which he pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Rattan Singh, H.C., (PW-1), Ramji Lal, C., (PW-2), Mohinder Singh Malik, Dy. Supt. Of Police, (PW-3), Balwant Singh, ASI, ( PW-4 ) and Chander Singh, Inspector ( PW-5 ). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. 4. The prosecution, in support of its case, examined Rattan Singh, H.C., (PW-1), Ramji Lal, C., (PW-2), Mohinder Singh Malik, Dy. Supt. Of Police, (PW-3), Balwant Singh, ASI, ( PW-4 ) and Chander Singh, Inspector ( PW-5 ). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that the contraband was lying abandoned, at the bus stop, which was planted against him. It was further stated by him, that the Dy. Superintendent of Police, was neither informed by the Investigating Officer, nor he did come to the spot. It was further stated by him, that the signatures of the Deputy Superintendent of Police, were obtained in his office subsequently. 5-A. In his defence, the accused examined Gurtej Singh, DW1. Thereafter, he closed the defence evidence. 6. After hearing the 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 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, vehemently, contended that though the alleged recovery was effected at a very busy and crowded place, surrounded by a number of shops, yet neither an independent witness was joined, nor an effort, was made by the Investigating Officer, to join him. He further submitted that, on account of this reason, the prosecution case became doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. Balwant Singh,ASI,(PW-4), during the course of cross-examination, admitted that a number of shops, were surrounding the place of recovery. It was further stated by him, during the course of cross-examination that the auto-rickshaws and the rickshaws are generally available, at the place of recovery. He further stated that he asked 2/4 public men, to witness the recovery, but they pleaded their helplessness. He could not tell their names. It was further stated by him, during the course of cross-examination that the auto-rickshaws and the rickshaws are generally available, at the place of recovery. He further stated that he asked 2/4 public men, to witness the recovery, but they pleaded their helplessness. He could not tell their names. He further stated that this fact was not mentioned by him either in the ruqa or in any other document, prepared at the spot. Under these circumstances, it can be said that, no effort, was actually made by the Investigating Officer, to join an independent witness, despite availability. Had he made an effort, to join an independent witness, in the search and seizure, and had he refused to join the same, then this fact must have been recorded, either in the case diary, or in the documents, prepared at the spot. Since, no mention of this fact, is found in the documents, referred to above, it appears that the explanation, furnished by the Investigating Officer, was just with a view to cover up his lapse. The Investigating Officer, thus, did not join an independent witness, intentionally and deliberately. Since, the 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. 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. 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 non-commercial 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. 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 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 13.03.2000, yet the sample was sent to the office of the Forensic Science Laboratory on 18.04.2000, and, as such, there was delay of one month and five days. He further submitted that the delay of one month and five days, in sending the sample, to the office of the Forensic Science Laboratory, remained unexplained. He further submitted that, under these circumstances, the possibility of tampering with the sample parcel, could not be ruled out, especially, when the seals, remained in possession of the police officials, in whose possession the case property, and the sample parcel, 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 said delay, in sending the sample to the office of the Forensic Science Laboratory. 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 Forensic Science Laboratory. Since, the sample was allegedly sent to the Laboratory, after one month and five days, it could not be safely held that the same remained un-tampered with, especially when no other trust-worthy evidence was produced to prove otherwise. This fact casts a shadow of doubt, on the case of the prosecution. In Gian Singh Vs. State of Punjab 2006(2) RCR (Criminal) 611, there was a delay of 14 days, in sending the sample to the office of the Chemical Examiner. This fact casts a shadow of doubt, on the case of the prosecution. In Gian Singh Vs. State of Punjab 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 20 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, till it reached the office of the Forensic Science Laboratory. 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 one month and five days, in sending the sample to the office of the Forensic Science Laboratory, 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 sample impression of the seals, was not deposited, in the office of the Forensic Science Laboratory, as a result whereof, it was deprived of comparing the seals on the sample, with the specimen seal. 11. It was next submitted by the Counsel for the appellant, that the sample impression of the seals, was not deposited, in the office of the Forensic Science Laboratory, as a result whereof, it was deprived of comparing the seals on the sample, with the specimen seal. He further submitted that, under these circumstances, it could not be said that the sample was not tampered with, until it reached the office of the Forensic Science Laboratory. The submission of the Counsel for the appellant, in this regard, appears to be correct. Ex. PA is the affidavit of Rattan Singh, HC, who took the sample parcel to the office of the Forensic Science Laboratory. It is evident from his affidavit Ex.PA that he was neither handed over the sample impression of the seals, nor did he deposit the same, in the Laboratory. In this view of the matter, there was no material with the office of the Forensic Science Laboratory, to compare the seals on the sample parcel, with the specimen seals, so as to ascertain as to whether, the same tallied with the seals, allegedly affixed on the same, at the time of alleged recovery. The other evidence produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. Non-strict proof, by the prosecution, that the sample was not tampered with, until it was deposited, in the office of the Forensic Science Laboratory, must prove fatal to the case of the prosecution. In these circumstances, the possibility of tampering with the sample parcel could not be ruled out. In State of Rajasthan v. Gurmail Singh 2005(2) RCR ( Criminal )58, ( Supreme Court ) , the sample seal was not sent to the Laboratory, at the time of sending the sample parcel. The Apex Court, held that the case of the prosecution was doubtful, on account of this reason. In this view of the matter, the case of the prosecution also became doubtful. The trial Court, did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 12. The Apex Court, held that the case of the prosecution was doubtful, on account of this reason. In this view of the matter, the case of the prosecution also became doubtful. The trial Court, did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 12. It was next submitted by the Counsel for the appellant that the statements of Rattan Lal, HC, PW1, with whom the case property and the sample parcel, were allegedly deposited, and Ramji Lal, Constable, PW-2, who allegedly took the sample parcel to the office of the Forensic Science Laboratory and Chander Singh, the then SHO, were not recorded, under Section 161 Cr.P.C., by the Investigating Officer. Under these circumstances, the case of the prosecution became doubtful. 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. On account of non-recording of the statements of Rattan Lal, HC, Ramji Lal, Constable and Chander Singh, the then SHO, material witnesses, under Section 161 Cr.P.C., the accused was deprived of confronting them, with their previous statements, so as to shatter the veracity of their testimonies made in the Court. Thus, it was a serious irregularity, committed by the Investigating Officer. This caused a serious prejudice to the accused, in his defence, and made the statements of the material witnesses, referred to above, tainted. The principle of law, laid down, in the aforesaid authority, is, thus, fully applicable to the facts of the present case. Non-recording of the statements of Rattan Lal, HC, Ramji Lal, C., and Chander Singh, the then SHO, by the Investigating Officer, must prove fatal to the case of the prosecution. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 13. Non-recording of the statements of Rattan Lal, HC, Ramji Lal, C., and Chander Singh, the then SHO, by the Investigating Officer, must prove fatal to the case of the prosecution. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 13. It was next submitted by the Counsel for the appellant that, there was violation of the provisions of Section 55 of the Act, as the case property and the sample were not produced before the Magistrate. Section 55 of the Act, lays down that an Officer Incharge of the Police Station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized, under this Act, within the local area of that Police Station, and which may be delivered to him, and shall allow any officer who may accompany such articles, to the Police Station, or who may be deputed for the purpose, to affix his seal, to such articles, or to take samples of, and from them, and all samples, so taken, shall also be sealed with a seal of the Officer-in-charge of the Police Station. The perusal of the provisions of Section 55 of the Act, clearly reveals that the case property and the samples are required to be produced before the Magistrate, so as to ensure, that there was no false implication of the accused, and that actually a specific quantity of the contraband, was recovered from the accused. No doubt, the provisions of Section 55 of the Act are directory, in nature, yet that does not mean that the same should be deliberately and intentionally breached. Had any explanation been furnished, by the Investigating Officer, as to what prevented him, from producing the case property, before the Illaqa Magistrate, immediately after the search and seizure, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, by the Investigating Officer, in this regard, the Court cannot coin any of its own, to fit in with the prosecution case. Since, there was deliberate and intentional breach of the provisions of Section 55 of the Act, by the Investigating Officer, the same cannot be condoned. In Gurbax Singh Vs. Since, there was deliberate and intentional breach of the provisions of Section 55 of the Act, by the Investigating Officer, the same cannot be condoned. In Gurbax Singh Vs. State of Haryana 2001 (1) RCR (Crl.) 702 (S.C.), it was held that non-compliance of the provisions of Sections 52,55 and 57, which are, no doubt, directory and violation thereof, would not ipso-facto vitiate the trial or conviction. However, the Investigating Officer cannot totally ignore these provisions, and, as such, failure will have bearing on the appreciation of evidence, regarding search and seizure of the accused. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. As stated above, since the Investigating Officer, intentionally and deliberately breached the provisions of Section 55, he could not say that the provisions of Section 55 being directory, in nature, he was not bound to comply with the same. If such a stand of the Investigating Officer is taken, as correct, then the provisions of the Act, which are directory, in nature, would be flouted with impunity, by him. Compliance of the said provision, is an indicator, towards the reasonable, fair and just procedure, adopted by the Investigating Officer, during the course of search and seizure. Non-compliance of such a provision, deliberately and intentionally, must be viewed with suspicion. Legitimacy of the judicial procedure, may come under cloud, if the Courts seem to condone acts of violation of statutory safeguards, committed by an authorized officer, during search and seizure operation. Such an attitude of the investigating agency, cannot be permitted. Intentional and deliberate breach of the provisions of Section 55, certainly caused prejudice, to the accused, and cast a doubt on the prosecution story. The trial Court did not take into consideration, this aspect of the matter, as a result whereof,it fell in error in recording conviction and awarding sentence. 14. No other point was urged, by the Counsel for the parties. 15. 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 18 of the Act. 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 18 of the Act. The judgment of conviction, and the order of sentence are, thus, liable to be set aside. 16. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 21.07.2001, and the order of sentence dated 24.07.2001, 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, he shall be set at liberty, at once, if not required in any other case. Order accordingly.