JUDGMENT Mr. Sham Sunder, J. - This appeal is directed against the judgment of conviction and the order of sentence dated 04.09.2001, rendered by the Additional Sessions Judge (Judge of Special Court), Muktsar, vide which he 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 six months, for having been found in possession of 1 Kg of opium, without any permit or licence, now falling within the ambit of non-commercial quantity. 2. The facts, in brief, are that on 16.05.1999 a police party, consisting of Sarabjit Singh, Sub-Inspector, (PW-1), Basant Singh, Assistant Sub Inspector, (PW-2), and some other police officials, was going on a police gypsy, from Malout towards village Ghumiara, in connection with patrol duty and Jagraj Singh, independent witness was joined on the way. When the police party reached near village Ghumiara, it saw the accused, coming from the side of the village, holding a polythene bag, in his right hand. On suspicion, being raised, he was apprehended. He was told that his personal search was to be conducted as he was suspected to be carrying some contraband. He was given an option that he could be searched in the presence of a Gazetted Officer or a Magistrate. He gave the option that his personal search be conducted in the presence of a Gazetted Officer or a Magistrate. A consent memo Ex.PA was prepared in this regard. An effort was made to contact the Magistrate on a wireless message, but he was not available. Thereafter, a wireless message was sent to the DSP Malout, as a result whereof, he reached the spot. The personal search of the accused was conducted, in his presence, which yielded the recovery of one Kg. of opium. A sample of 10 grams was separated and the remaining opium was put in a separate parcel. The sample parcel and the parcel of the remaining opium were duly sealed, and taken into possession, vide a separate recovery, memo Ex.PB. Rough site plan of the place of recovery was prepared, at the spot. of opium. A sample of 10 grams was separated and the remaining opium was put in a separate parcel. The sample parcel and the parcel of the remaining opium were duly sealed, and taken into possession, vide a separate recovery, memo Ex.PB. Rough site plan of the place of recovery was prepared, at the spot. Personal search memo Ex.PC of the accused was also prepared. Ruqa Ex.PD was sent to the Police Station, on the basis whereof, the FIR was recorded. 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 Sarabjit Singh, Sub -Inspector, (PW-1), Basant Singh, Assistant Sub Inspector, (PW-2), Chanan Ram, Constable,(PW-3), Sajjan Singh Cheema, DSP, (PW-4), and Harinder Singh, MHC, (PW-5). Jagraj Singh, independent witness was given up, as won over by the Additional Public Prosecutor for the State. Thereafter, the Addl. Public Prosecutor for the State, closed its 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. In defence, the accused examined Lahora Singh, Constable, (DW-1) and Angrej Singh, Head Constable. (D)W-2) and closed the same. 6. After hearing the Additional 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, has been 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, no doubt, an offer was given to the accused as to whether he wanted his search to be conducted in the presence of a Gazetted Officer or a Magistrate, as he was suspected to be found in possession of contraband. 9. The Counsel for the appellant, at the very outset, submitted that, no doubt, an offer was given to the accused as to whether he wanted his search to be conducted in the presence of a Gazetted Officer or a Magistrate, as he was suspected to be found in possession of contraband. He further submitted that he gave an option that his search be conducted, in the presence of a Gazetted Officer or a Magistrate. He further submitted that the search of the accused was not conducted in the presence of a Gazetted Officer and as such, there was complete violation of the mandatory provisions of Section 50 of the Act. He further submitted that on account of violation of the mandatory provisions of Section 50 of the Act, the accused was entitled to acquittal, but the trial Court fell into a grave error, in recording his conviction and awarding him sentence. The submission of the Counsel for the appellant, in this regard, appears to be correct. Ex.PA is the consent memo, prepared by the Investigating Officer. He was asked, as to whether, he wanted his search to be conducted in the presence of a Gazetted Officer or a Magistrate. He gave an option that his search be conducted in the presence of a Gazetted Officer or a Magistrate. In these circumstances, it was incumbent upon the Investigating Officer, to call a Gazetted Officer or a Magistrate and conduct the search of the accused, in his presence. There is nothing in Ex.PA, that Sajjan Singh Cheema, DSP, came present, and, in his presence, the search of the accused was conducted. Consent memo Ex.PA, does not bear the signatures of Sajjan Singh Cheema, DSP. No other document was prepared, to prove, that after Sajjan Singh Cheema, DSP, allegedly came to the spot, he informed the accused that he was the Deputy Superintendent of Police, and wanted to conduct his search. In case, Sajjan Singh Cheema, DSP, had arrived at the spot, and had given an option to the accused that he being a Gazetted Officer, wanted to conduct his search, then a memo in this regard, was required to be prepared separately. No such memo was prepared. In case, Sajjan Singh Cheema, DSP, had arrived at the spot, and had given an option to the accused that he being a Gazetted Officer, wanted to conduct his search, then a memo in this regard, was required to be prepared separately. No such memo was prepared. Under these circumstances, it could be said that no offer for search of the accused was given by Sajjan Singh Cheema, DSP, nor the search of the accused, was conducted by him, or as per his direction. There was, thus, complete violation of the mandatory provisions of Section 50 of the Act. The violation of mandatory provisions of Section 50 of the Act, was sufficient to vitiate the conviction of the accused. The trial Court was, thus, wrong in holding that a valid offer was given by Sajjan Singh Cheema, DSP, to the accused, and he accepted the same, as a result whereof, he conducted his search. The judgment of the Court below, is liable to be set aside, on this ground. 10. Jagraj Singh, independent witness, no doubt, was joined by the Investigating Officer, at the time of the alleged recovery, from the accused, yet he was not, examined. He was given up, as won over by the Additional Public Prosecutor for the State. It is, no doubt, true that the Additional Public Prosecutor for the State, could Give tip an independent witness, as won over by the accused, after recording satisfaction, that he had actually been won over. Such a discretion was required to be exercised, by the Additional Public Prosecutor, for the State, in a judicious manner. No material was placed, on the record, that Jagraj Singh, an independent witness, had been won over by the accused, and, thus, he was given up. The Additional Public Prosecutor, for the State, exercised the discretion, in giving up Jagraj Singh, in an arbitrary and capricious manner. Such a discretion was not exercised by him, in a bonafide manner. It means that Jagraj Singh, independent witness, was intentionally and deliberately withheld. The Additional Public Prosecutor, for the State, exercised the discretion, in giving up Jagraj Singh, in an arbitrary and capricious manner. Such a discretion was not exercised by him, in a bonafide manner. It means that Jagraj Singh, independent witness, was intentionally and deliberately withheld. In Masalti v. State of Uttar Pradesh, AIR 1965 (S.C.) 202, it was held that it is, undoubtedly, the duty of the prosecution, to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness, must be examined, even though his evidence, may not be very material or, even if, it is known that he has been won over or terrorized. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. The evidence of Jagraj Singh, independent witness, was very material to unfold the case of the prosecution. Had he been examined, he would have revealed the truth, and thrown light on the actual position. As stated above, there was no material, on the record to come to the conclusion, that this witness had been won over by the accused. In these circumstances, giving up such a material witness, by the prosecution, on the ground, that he had been won over, which did not at all exist, clearly cast a cloud of doubt, on the prosecution story, especially when the other evidence of the prosecution, is unreliable and un trustworthy. In State of Punjab v. Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, an independent witness, though joined, was not examined. In these circumstances, it was held by a Division Bench of this Court that the case of the prosecution became doubtful. On account of non- examination of Jagraj Singh, an independent witness, the case of the prosecution became doubtful. The judgment of the Court below is liable to be set aside on this ground too. 11. The alleged recovery, though, effected, in this case on 16.05.1999, yet the sample was sent to the Laboratory on 24.05.1999 and reached there on 25.05.1999. No explanation for delay in sending the sample was furnished by the prosecution. The judgment of the Court below is liable to be set aside on this ground too. 11. The alleged recovery, though, effected, in this case on 16.05.1999, yet the sample was sent to the Laboratory on 24.05.1999 and reached there on 25.05.1999. No explanation for delay in sending the sample was furnished by the prosecution. Had any explanation been furnished, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, in this regard, the Court cannot coin any of its own. 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 State of Rajasthan v. Gurmail Singh [2005(2) All India Criminal LR (S. C.) 369], 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 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 Chemical Examiner. The other evidence produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the present case. The delay of 09 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 delay of 09 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. Accordingly, the accused-appellant is entitled to acquittal. 12. No other point, was urged, by the Counsel for the parties. 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 meached 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. 14. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 04.09.2001, 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. 15. The Chief Judicial Magistrate, shall comply with the judgment promptly. Appeal accepted.