Judgment Sham Sunder, J. 1. This appeal is directed against the judgment of conviction dated 14.7.1998, and the order of sentence dated 16.7.1998, rendered by the Presiding Officer, Special Court, Kurukshetra, vide which it convicted the accused/appellant Daljit Singh, 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 2 years. 2. The facts, in brief are that on 26.6.1996, Ram Kumar, SI, of Police Station Pehowa, alongwith other police officials, was present near Bus Stand Pehowa, when the accused was seen coming, having a bag, in his hand. He was apprehended. Search of the bag, being carried by the accused, was conducted, in accordance with the provisions of law, in the presence of Naib Tehsildar, which resulted into the recovery of 9 Kgs. poppy-husk. A sample of 250 grams was separated therefrom. The sample and the remaining poppy-husk, were converted into parcels, duly sealed, with the seals, bearing impression `RK and `PC. Thereafter, the same were taken into possession. The seal belonging to the Sub Inspector, was handed over to Hukam Singh, HC, and the Naib Tehsildar, kept his, with him. The accused was arrested. The statements of the witnesses, were recorded. 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 Prem Chand, Naib Tehsildar, Pehowa, (PW-1), Hukam Singh, HC, (PW-2), Ram Kumar, SI, (PW-3), Mam Chand, SI, (PW-4), Dharamvir, Constable (PW-5), Bajinder Kumar, HC (PW-6), and Ram Chander, ASI (PW-7). Thereafter, the 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. Thereafter, the 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 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. None appeared on behalf of the appellant, despite due notice, that the appeal was fixed for regular hearing, on the board of this Bench. 9. I have heard Mr. A.K. Jindal, AAG, Haryana, for the respondent, and have gone through the evidence and record of the case, carefully. 10. The alleged recovery, in this case, was effected on 26.6.1996, whereas, the sample was sent to the office of the Forensic Science Laboratory on 4.7.1996. There was delay of 8 days, in sending the sample to the office of the Forensic Science Laboratory. Even, the seal used by Naib Tehsildar, was kept by him, whereas, the seal used by Ram Kumar, SI, was handed over to a junior official, in the name of Hukam Singh, HC. 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 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 office of the Forensic Science Laboratory, after about 8 days, it could not be safely held, that the same remained un-tampered with. This fact casts a shadow of doubt, on the case of the prosecution. In Gian Singh v. 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. In Gian Singh v. 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 Ramji Singh v. 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, is not onlydeficient, but also unreliable, to prove this factum. 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 Forensic Science Laboratory, and non-strict proof of the factum, 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 sample, could not be ruled out. 11. No independent witness was joined, in the instant case, despite availability. Hukam Singh, HC, (PW-2), during the course of cross-examination stated that the Investigating Officer, tried to join some public witnesses, but none was prepared to join. Ram Kumar, SI (PW-3), during the course of his cross-examination stated that he asked 3/4 persons to join the investigation, but they showed their inability, being passengers. Both of them, however, stated that they could not tell the names of those persons. The factum that an effort was made to join an independent witness, was not recorded in the ruqa or the documents prepared contemporaneously, at the time of the alleged recovery. It means that no effort, whatsoever, was made by the Investigating Officer, to join an independent witness, though the alleged recovery was effected at Bus Stand of Pehowa. The factum that an effort was made to join an independent witness, was not recorded in the ruqa or the documents prepared contemporaneously, at the time of the alleged recovery. It means that no effort, whatsoever, was made by the Investigating Officer, to join an independent witness, though the alleged recovery was effected at Bus Stand of Pehowa. The explanation furnished by the Investigating Officer, that he made an effort to join, but none was ready to join, appears to be a concocted one. In similar circumstances, in Hawa Singh v. State of Haryana 2005(4) RCR (Criminal) 292, when independent witness was not joined, despite availability, the accused was acquitted, in a case of recovery of 20 Kgs. of poppy-husk. In State of Punjab v. Ram Chand 2001 (1) RCR (Criminal) 817, (D.B.) (P&H), and State of Punjab v. Bhupinder Singh 2001(1) RCR (Criminal) 356 (D.B.) (P&H), the independent witnesses, despite availability, were not joined, and, as such, the case of the prosecution was held to be doubtful. In these circumstances, it was held that the case of the prosecution became doubtful. This aspect of the matter was not taken into consideration by the trial Court, as a result whereof, miscarriage of justice occasioned. 12. The presence of the Naib Tehsildar, at the time of effecting the alleged recovery, was also highly doubtful. Prem Chand, Naib Tehsildar, (PW- 1), during the course of his cross-examination, stated that he did not make any statement to the Police, under Section 161 Cr.P.C. He denied that Ex.DA, statement under Section 161 Cr.P.C., was made by him, before the Investigating Officer. Recording of the statement, under Section 161 Cr.P.C., of a witness, is a check to prove, as to whether, such a witness was present, at the time of conducting search and seizure. In case, Prem Chand, Naib Tehsildar, (PW-1) had gone to the spot and was present, at the time of the alleged recovery, then it was not known as to what was the legal hitch in the way of the Investigating Officer, to record his statement under Section 161 Cr.P.C. Since, Prem Chand, Naib Tehsildar, denied having made Ex.DA, statement under Section 161 Cr.P.C., it means that the same was fabricated by the Investigating Officer. Otherwise, there was no necessity, of denying the same by a responsible Officer. Otherwise, there was no necessity, of denying the same by a responsible Officer. Non- recording of the statement of Naib Tehsildar, and on the other hand, fabricating the same, by the Investigating Officer, clearly cast a doubt on the prosecution story. In Padam Singh v. State of Haryana 1997 (4) RCR (Criminal) 172, 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 Prem Chand, Naib Tehsildar, and on the other hand, fabricating his statement, Ex.DA, by the Investigating Officer, clearly proved that he was not present, at the time of the alleged search and seizure. The case of the prosecution, therefore, became highly doubtful, on account of this reason. 13. Not only this, even the statement of Mam Chand, SI/SHO (PW-4), before whom, the case property and the sample were allegedly produced by the Investigating Officer, was not recorded under Section 161 Cr.P.C. Mam Chand, SI/SHO, during the course of his cross-examination, admitted it correct that his statement under Section 161 Cr.P.C., was not recorded by the Investigating Officer. He also admitted it correct that the facts regarding the verification of the case property etc. by him, had not been incorporated, in the challan. This clearly showed that the case property, and the sample, were not produced before him, by the Investigating Officer, but he fabricated the evidence, in that regard. Had the case property and the sample been produced before the SHO, the Investigating Officer, would have certainly recorded his statement under Section 161 Cr.P.C. The case of the prosecution became highly doubtful, on account of this reason also. 14. There is another lacuna, in the case of the prosecution. Dharmvir, Constable, (PW-5), who allegedly took the sample to the office of the Forensic Science Laboratory, stated that three sealed parcels, were handed over to him by the then MHC Bajinder Singh, alongwith seal impressions. 14. There is another lacuna, in the case of the prosecution. Dharmvir, Constable, (PW-5), who allegedly took the sample to the office of the Forensic Science Laboratory, stated that three sealed parcels, were handed over to him by the then MHC Bajinder Singh, alongwith seal impressions. He further stated that he had handed over the entire material in the office of the Forensic Science Laboratory, vide road certificate No. 393 on 4.7.1996, and after deposit thereof, handed over the receipt to the MHC. On the other hand, Bajinder Kumar, HC (PW-6), who was the MHC, in the Police Station Pehowa, at the relevant time, stated that he handed over one sealed sample parcel weighing 250 grams and one seal impression, to Dharmvir, Constable, who deposited the same in the office of the Forensic Science Laboratory. The evidence of both these witnesses, on the aforesaid aspect of the matter, is completely contradictory, with each other. If, according to the statement of Dharmvir, Constable, (PW-5), three sealed sample parcels were deposited with the Forensic Science Laboratory, then how the report Ex.PG of the said laboratory speaks that only one sealed sample was deposited with it. This fact was never explained by any of the prosecution witnesses, and remained shrouded in mystery. Since the case of the prosecution, is not corroborated through any independent source, such a discrepancy also cast a cloud of doubt, on the same. The trial Court, however, failed to take into consideration this important aspect of the matter, as a result whereof, miscarriage of justice occasioned. 15. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the Court below, are not based on the correct appreciation of evidence, and law, on the point. The trial Court did not take into consideration, the infirmities and lacunae, enumerated, in the aforesaid paragraphs. Had these infirmities and lacunae, been taken into consideration, by the trial Court, the result would have been different. The judgment of conviction, and the order of sentence, warrant interference, and are liable to be set aside. 16. For the reasons recorded, herein-before, the appeal is accepted. The judgment of conviction dated 14.7.1998, and the order of sentence dated 16.7.1998, 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. 16. For the reasons recorded, herein-before, the appeal is accepted. The judgment of conviction dated 14.7.1998, and the order of sentence dated 16.7.1998, 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.