JUDGMENT Hon’ble (Mrs.) Saroj Bala, J.—These appeals directed against the judgment and order dated 21.8.2006 passed by the Additional Sessions Judge/F.T.C. No. 2 Siddharth Nagar in Special Sessions Trial No. 35 of 2004 and 36 of 2004 whereby convicting the appellants for the offence under Section 20(b) (ii) (c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the N.D.P.S. Act) and sentencing each of them to R.I. for ten years with fine of Rs. one lac with default clause having arisen out of the one and same judgment are being decided together. 2. The facts giving rise to the appeals are : On 7.10.2004 at 4.15 p.m., S.H.O. Rajiv Kumar Singh (P.W. 1) the first informant alongwith Constable driver Baij Nath Yadav was going to Baharni town in Government jeep No. U.P. 55A-0155. When he reached near P.W.D. guest house he received information through informer about the presence of appellants with Charas in bags at the tea shop of Abdul Ajij situated in Baharni town Dihava Masjid/Madarsa. Incharge outpost S.I. K.V. Tiwari was telephonically directed by the S.H.O. (P.W. 1) to reach at the spot with police force. The first informant tried to take public witnesses but they refused to associate. S.I. K.V. Tiwari (P.W. 3) alongwith constables Sanjay Kumar Singh and Abdul Alim reached at the spot. On seeing the police force appellants tried to run away with the bags but they were intercepted. On being inquired about the reason for fleeing away they made a disclosure about possession of Charas in the bags. The option was given by the police to the accused to get their bags searched by a Gazetted Officer or Magistrate but they declined and consented for search to be carried by the police officials. With the consent of appellants their bags were searched at 5.30 p.m. From the Raksine bag of appellant Tara Bahadur 21 big and small rolls of Nepali wet Charas kept in a white polythene were recovered. On search of white polythene bag (Jhola) of appellant Meghraj Yadav 23 big and small rolls, one rounded in ball shape and some broken pieces of Nepali wet Charas kept in a white polythene were recovered. The recovered Charas was weighed separately on balance which the police party was having in the kit. On search of white polythene bag (Jhola) of appellant Meghraj Yadav 23 big and small rolls, one rounded in ball shape and some broken pieces of Nepali wet Charas kept in a white polythene were recovered. The recovered Charas was weighed separately on balance which the police party was having in the kit. The quantity of Charas recovered from appellant Tara Bahadur was 2 kg and that of appellant Meghraj was 1.5 kg. 100 gm. Charas each was taken out from the Charas recovered from each of the appellant for sample and kept in two separate containers. The appellants were taken into custody. The Charas recovered from each of the appellant was sealed in the bags. Both the samples were sealed separately and specimen seal was prepared. The recovery memo (Ext. Ka-1) was prepared by constable Sanjay Kumar Singh at the dictation of first informant in torch and lantern light and a copy each was given to the appellants and their signatures were obtained in token of receipt of copies of recovery memo. The arrest memos (Ext. Ka-2 and Ka-3) were prepared. The appellants alongwith sealed packets of recovered Charas, samples of Charas, recovery memo etc. were brought to the police station and crimes were registered on the basis of recovery memo. 3. The investigation was entrusted to the inspector Sant Saran Singh (P.W. 4). The Investigating Officer visited the place of offence and prepared the site plan (Ext. Ka-5 and Ka-6). He interrogated the appellants. The samples of Charas through letters (Ext. Ka-9 and Ka-10) of C.J.M. Siddharth Nagar were sent to Lucknow for chemical examination. The constable Ramji Gautam (P.W. 5) carried the samples to Forensic Science Laboratory at Lucknow. The samples were tested and found to be of Charas. The chemical examination reports are (Ext. Ka-16 and Ka-17). After completion of all the necessary formalities the Investigating Officer submitted separate charge-sheets against the appellants (Ext. Ka-7 and Ka-8). 4. After taking cognizance, both the appellants were separately charged for the offence under Section 20(b) (ii) (c) of the N.D.P.S. Act. The appellants pleaded not guilty and claimed to be tried. 5. The prosecution examined S.H.O. Rajiv Kumar Singh (P.W. 1), C.P. 161 Viswas Kumar Chaturvedi (P.W. 2) S.I. K.V. Tiwari (P.W. 3), I.O. Sant Saran Singh (P.W. 4) C.P. 206 Ram Ji Gautam (P.W. 5) and H.M. Ram Dayal (P.W. 6). 6. The appellants pleaded not guilty and claimed to be tried. 5. The prosecution examined S.H.O. Rajiv Kumar Singh (P.W. 1), C.P. 161 Viswas Kumar Chaturvedi (P.W. 2) S.I. K.V. Tiwari (P.W. 3), I.O. Sant Saran Singh (P.W. 4) C.P. 206 Ram Ji Gautam (P.W. 5) and H.M. Ram Dayal (P.W. 6). 6. On appraisal of evidence the trial Court found the testimony of witnesses trustworthy and recorded the finding of conviction. 7. Heard Shri Rajul Bhargava and Shri Praveen Kumar Srivastava, learned counsel for the appellants, Shri N.D. Rai, learned A.G.A. for the State and have gone through the trial Court record. 8. The learned counsel for the appellants has challenged the finding of conviction on the grounds : (i) the samples were not drawn in duplicate; (ii) the samples were found by the chemical analyser weighing 80 gm. and 72.5 gm.; (iii) the seal put on the samples was different from the seal found on the samples by the chemical analyser; (iv) link evidence to prove that the samples were kept intact not produced; (v) the compliance of the provisions of Section 50 of N.D.P.S. Act was not made as no option was given for personal search of the appellants before a Gazetted Officer or Magistrate. 9. The prosecution case was that two samples each weighing 100 gm. were prepared and sealed at the spot. The sealed samples and recovered Charas in sealed packets was deposited at the Malkhana of the police station. Ram Dayal (P.W. 6) was posted as Head Moharrir P.S. Debarua on 7.10.2004. The samples, specimen seals and recovered Charas in separate sealed packets were received by him and an entry was made in the Malkhana register. On 9.11.2004 C.P. Ramji Gautam (P.W. 5) alongwith S.I. Sant Saran Singh (P.W. 4) took both the sealed samples sealed Charas packets alongwith papers to C.J.M. Siddharth Nagar for preparation of docket. According to the witness Ramji Gautam (P.W. 5) the seals on the samples and specimen seals were compared by the C.J.M. and were found intact. The seals of both the samples were got removed and both the samples were separately sealed again under the seal of C.J.M. The specimen seals were prepared separately in the presence of C.J.M. and his signatures were certified on both the dockets. The sealed samples and specimen seals were brought to the Malkhana for safe custody and were deposited there. The seals of both the samples were got removed and both the samples were separately sealed again under the seal of C.J.M. The specimen seals were prepared separately in the presence of C.J.M. and his signatures were certified on both the dockets. The sealed samples and specimen seals were brought to the Malkhana for safe custody and were deposited there. On 31.10.2004 he took the samples to Forensic Science Laboratory at Lucknow and handed over the sealed samples, specimen seals alongwith documents to chemical analyser. According to the H.M. Ram Dayal (P.W. 6) there is no entry in the Malkhana register with regard to the taking out of samples and specimen seals for preparation of docket and about depositing them again at the Malkhana. 10. The evidence of witnesses Ramji Gautam (P.W. 5) and Sant Saran Singh (P.W. 4) brings out that both the samples were sealed under the seal of C.J.M. Siddharth Nagar. The reports of chemical analyser (Ext. Ka-16 and 17) show the presence of the seal of Munsif Magistrate Naugarh Basti over both the samples of Crime No. 426 of 2004 and 427 of 2004 which related to the appellants. The covering letter on record is that of C.J.M. but in the report of chemical analyser, the seals of Munsif Magistrate Naugarh Basti were found. The presence of seals of Munsif Magistrate Naugarh Basti over the samples creates a reasonable doubt about sending the same samples to chemical analyser which were drawn in the Court of C.J.M. 11. The absence of entries of taking the samples from Malkhana for making docket and depositing them after the preparation of dockets indicates that the samples and recovered Charas were not kept in safe custody at the police station. The seal of the Court was found different by the chemical examiner. The presence of seal of Munsif Magistrate Naugarh Basti at the samples sent to the chemical examiner shows that the samples of Charas recovered from the appellants were not sent to the Forensic Science Laboratory for chemical examination. The link evidence from the time of deposit of samples recovered seal packets of Charas and specimen seals at the police station and thereafter taking out the same material for the preparation of docket before the C.J.M. Siddharth Nagar and sending the same material for chemical examination is wanting. The specimen seals were not produced before the trial Court. The link evidence from the time of deposit of samples recovered seal packets of Charas and specimen seals at the police station and thereafter taking out the same material for the preparation of docket before the C.J.M. Siddharth Nagar and sending the same material for chemical examination is wanting. The specimen seals were not produced before the trial Court. The specimen seals were not available on the trial Court record. The prosecution having failed to establish that the seized articles were sent to the chemical examiner, the appellants are entitled to benefit of doubt. 12. In view of the foregoing discussion both the appeals are allowed. The impugned judgment and order is set aside. Both the appellants are acquitted. The appellants are in jail. They shall be released forthwith if not wanted in any other case. 13. Certify the judgment to the lower Court within a week. The original record of the case be transmitted to the Court below immediately. The compliance shall be reported by the Additional Sessions Judge/F.T.C. No. 2 Siddharth Nagar within four weeks from the date of receiving the copy of this order. ————