JUDGMENT This criminal appeal has been filed against the judgment and order dated 19-07-2005 passed by Sri Dhirendra Nath, the then IVth F.T.C./Addl. Sessions Judge, Haridwar in S.T. No. 7/2002, whereby the Addl. Sessions Judge has convicted the appellant and sentenced him to undergo RI for seven years and to pay fine of Rs.50,000/- under section 8/15(B) of the N.D.P.S. Act. In default of payment of fine, the appellant would undergo R.I. for further two years. 2. The case of the prosecution, in brief, is that on 21-01-2001 at about 11 A.M. S.I. – Naresh Chandra Joshi PW2 alongwith Constable Satendra Kumar PW1 and S.I. Suraj Bhanu PW3 was on patrolling duty at Prahladpur, Brahmanwala, Balchandrawala. When they reached near Brahmanwala Tiraha, they found one person coming from the side of Brahmanwla having a plastic bag in his hand. On being suspicious, the police patrolling party immediately apprehended after chasing him at about 11 a.m. on 21-01-2001. The appellant disclosed his name and informed the police party that he was having the poppy husk in his bag. The appellant was duly informed of his right of being searched before a Gazetted Officer or a Magistrate as required under Section 50 of the Act but he declined and said that the police may take his search. When the police took his search the appellant was found carrying 5 kg. of ‘Doda Powder’ (poppy straw) in a plastic bag. Out of the seized contraband, a sample of 250 grams of ‘Poppy Straw’ was prepared at the spot and remaining ‘Poppy Straw’ was intact in the bag. The police prepared the memo of recovery at the spot. The police party tried to take public witnesses, but none came forward to be witness of the recovery. On the basis of recovery, check FIR (Ex.ka.4) was lodged at the police station and entry to that effect was made in the G.D. (Ex.ka.5). Thereafter, the appellant-accused as well as the recovered contraband was handed over to the police station. The investigation was entrusted to S.I. – Suraj Bhanu, who visited the spot and prepared the site plan (Ex.ka.2). The sample took from the seized article was sent for chemical examination and it was proved to be Poppy Straw. The investigation was taken up as usual which culminated into the submission of the chargesheet. 3. The charge was framed by the trial court against the appellant. The sample took from the seized article was sent for chemical examination and it was proved to be Poppy Straw. The investigation was taken up as usual which culminated into the submission of the chargesheet. 3. The charge was framed by the trial court against the appellant. The appellant denied the charges and claimed the trial. 4. In order to prove its case, the prosecution examined as many as three witnesses. Constable Satendra Kumar PW1 and S.I. – Naresh Chandra Joshi PW2 were the witnesses of search, seizure and arrest of the appellant. Both the witnesses have supported the prosecution case and they have narrated the entire story as indicated in para 2 of my judgment. S.I. – Suraj Bhanu PW3 was the Investigating Officer of this case and he submitted the chargesheet against the appellant. 5. In the statement recorded u/s 313 Cr.P.C. the appellant denied the prosecution case and stated that he had been falsely implicated in this case. 6. The learned trial court on the basis of his appreciation of the evidence found the appellant guilty and convicted and sentenced the appellant as mentioned above. 7. I have heard Mr. Parikshit Saini, Advocate for the appellant and Mr. Amit Bhatt, Addl. Govt. Advocate with Mr. B.S. Parihar, Brief Holder for the State. I have also gone through the evidence and material on record. 8. 7. I have heard Mr. Parikshit Saini, Advocate for the appellant and Mr. Amit Bhatt, Addl. Govt. Advocate with Mr. B.S. Parihar, Brief Holder for the State. I have also gone through the evidence and material on record. 8. Learned counsel for the appellant contended that the arresting officer and the I.O. could not have totally ignored the provisions of Section 52 & 53 of the N.D.P.S. Act and as such the violation would have a bearing on the appreciation of the evidence regarding the arrest, search and seizure; the provisions of the N.D.P.S. Act were not followed in this case so far as the weighing of the recovered article as well as the drawing of the representative sample were concerned; learned counsel for the appellant referred the evidence of S.I. – Suraj Bhanu (PW3) – I.O., who has stated in his evidence that the sample of Poppy Straw was taken from the bundle which was recovered by the police and thereafter it was sent to the F.S.L.; whereas the recovery memo reveals that two separate samples were taken, out of which, one was taken for being sent to the F.S.L. and second sample was kept for disposal in accordance with the provisions of the N.D.P.S. Act; it was further contended that the said sample was sent to the F.S.L. for chemical examination without taking prior permission of the court; according to the prosecution case, 250 grams of sample of Poppy Husk was sent to the F.S.L. for chemical examination, whereas in the F.S.L. it was found only 150 grams; the prosecution has not proved that the article which was recovered from the possession of the appellant was ever deposited in the Malkhana and no sample seal was ever produced before the court; there is no evidence of any of the witnesses who could have proved that the said contraband was sealed in the police station by the seal of Station Officer as provided under Section 52 of the N.D.P.S. Act; there is no evidence that the recovered article was kept in safe custody till it was produced before the court; there is no iota of evidence that the sample, which was taken at the spot, was sent to the F.S.L. in safe custody and that was the same article, which was seized from the possession of the appellant at the spot; the findings of the trial court is against the record; the prosecution has miserably failed to prove this case beyond its reasonable doubt. Learned Addl. G.A. for the State refuted the contentions and contended that the prosecution has proved the case beyond reasonable doubt. Learned Addl. G.A. for the State has supported the findings recorded by the trial court. So far as the weighing of the recovered substance as well as the drawing of the representative sample is concerned, it is admitted that the seized article was not weighed at the spot and only an approximate weight was presumed. None of the witnesses have stated in their evidence that the weight was taken at the spot. When the contraband article is seized from the possession of an accused it has to be forwarded to the Station Officer without unnecessary delay as provided under Section 52 of the N.D.P.S. Act. Sub-section (2) of Section 52A of the N.D.P.S. Act also enjoins upon the concerned officer of the police station the mandatory duty to make an application to a Magistrate for the purposes of certifying the correctness of the aforesaid inventory as prepared and drawn up, as well as to allow the concerned officer to draw representative sample of the substance seized, the drawing of the representative sample to be made in the presence of the Magistrate, who also has to certify about the correctness with respect to the sample drawn. This Court in the case of Baldev Singh Vs. State of Uttarakhand 2008 (2) U.D. 456 has held as follows:- “13. What emerges from a bare reading of Section 52 A of the 1985 Act in the light of the aforesaid very pertinent observations of their Lordships of the Supreme Court in the aforesaid judgments is that the weighing of the articles seized is a mandatory requirement of law, whether the weighing is done at the time and place of seizure or, if the seizing party is not in possession of or does not have access to a weighing scale, at the nearest police station in the shortest possible time. Apart from the mandatory requirement of the seized substances being weighed on a weighing scale, there is another mandatory requirement and that is that the representative sample required to be sent to a laboratory for testing has not only to be weighed on a weighing scale in the similar manner as the recovered article has to be weighed but before drawing up a representative sample, the concerned Police officer has to make an application to a Magistrate for granting to him the permission to draw the representative sample as also at the same time enjoining a duty upon the Magistrate to ensure that the sample is drawing in his presence and he certifies about the correctness of the sample so drawn. Undoubtedly, this stringent procedure has been incorporated in Section 52A to ensure that the weighing of the representative sample as well as the drawl of the sample conform to all legal requirements so that there is no chance of any foul play by the police as well as it does not cause any prejudice to the accused. 14. The search and seizure of the contraband article as also its being weighed at the time of recovery or soon thereafter and the sending of representative sample from out of the seized contraband article for examination in a laboratory to determine its correctness are very serious aspects because these not only ensure the fairness of the procedure to conform to statutory safeguards but also to obviate any likely prejudice to the accused. Whether the search and seizure were properly effected, whether the seized contraband was properly weighed, whether the representative sample was properly drawn and sent to the laboratory and what is the report of the laboratory are aspects which cannot be dealt with lightly because any violation of any single aspect is likely to cause and create prejudice to the accused and may also result in miscarriage of justice. It is with this in mind that their Lordships of the Supreme Court made the following pertinent observations about the aforesaid aspects in the case of Khet Singh versus Union of India 2002 SCC (Cri) 806:- “5. It is true that the search and seizure of contraband article is a serious aspect in the matter of investigation related to offences under the NDPS Act. It is true that the search and seizure of contraband article is a serious aspect in the matter of investigation related to offences under the NDPS Act. The NDPS Act and the Rules framed thereunder have laid down a detailed procedure and guidelines as to the manner in which search and seizure are to be effected. If there is any violation of these guidelines, the courts would take a serious view and the benefit would be extended to the accused. The offences under the NDPS Act are grave in nature and minimum punishment prescribed under the statue is incarceration for a long period. As the possession of any narcotic drug or psychotropic substance by itself is made punishable under the Act, the seizure of the article from the appellant is of vital importance.” 15. This Court has come across various cases in the past in the State of Uttarakhand, in fact, a large number of them, where the seized article at the time of the apprehension of the accused and its recovery from his person was not at all weighed, either at that time or at any time thereafter and the stand of the prosecution about the weight of the seized article is always relatable to the bald statement of the accused made at the time of his apprehension as well as the recovery of the article. It is a pity as well as a shame that the police relies upon the bald, uncorroborated and unconfirmed statement of the accused about the weight of the seized article and carries on with this assumption till the end of the trial, without itself weighing the article either at the time of the recovery or soon thereafter. Non-weighing of the article by the police is a flagrant violation of law. The weighing of the article by the police itself is a mandatory requirement of law. 16. Similarly the drawing up of the representative sample has to be done strictly in accordance with sub-section (2) of Section 52A of 1985 Act as mentioned hereinabove.” 9. It is true that the prosecution has not proved the safe custody of the recovered article till it was produced before the Court and it was sent to the F.S.L., Agra. 16. Similarly the drawing up of the representative sample has to be done strictly in accordance with sub-section (2) of Section 52A of 1985 Act as mentioned hereinabove.” 9. It is true that the prosecution has not proved the safe custody of the recovered article till it was produced before the Court and it was sent to the F.S.L., Agra. It becomes more doubtful when the representative sample of 250 grams of contraband material was taken for chemical examination at the spot and the rest of the Poppy Straw was sealed separately. The representative sample of the contraband material should have been sent to the F.S.L. through the Special Judge or the Magistrate concerned. Instead of sending the said representative sample through the Magistrate, the Investigating Officer has admitted in his evidence that he himself took the representative sample to the F.S.L. without seeking any assistance from the court or the Magistrate. He has not stated in his deposition before the trial court that firstly he compared the seal of representative sample with the seal affixed on the bundle and thereafter he opened the bundle and took the representative sample. The sample, which was sent to the F.S.L., has not been forwarded to the Magistrate and as such the provisions of sub-sections (2) & (3) of Section 52A of the Act have not been followed. The provisions are mandatory and the police officer himself had dealt with the seized article and took representative sample according to his own convenience. This fact also casts a doubt upon the veracity of the prosecution evidence that the contraband article, which was recovered from the possession of the appellant, was in safe custody of the police or not. Apart from this, when the said sample was measured at FSL it was found to be only 150 grams instead of 250 grams. Thus, the prosecution has even not bothered to take correct measurement at the time of sending the said sample to the F.S.L. The Hon’ble Apex Court in the case of Rajesh Jagdamba Avasthi v. State of Goa 2005 (9) SCC 773 has held as follows :- “12. However, there appears to be substance in the other submissions urged on behalf of the sealed in two envelopes was found to be different from the weight of the substance received by the laboratory as deposed to by PW1. However, there appears to be substance in the other submissions urged on behalf of the sealed in two envelopes was found to be different from the weight of the substance received by the laboratory as deposed to by PW1. It is not disputed that from the shoe on the right foot 100 gm of charas was recovered, which was sealed in envelope A. According to PW1, the Junior Scientific Officer, when that envelope was opened and the substance weighed it was found to be 98.16gm. Similarly, from the shoe on the left foot 115 gm of charas was recovered which was packed and sealed in envelope B. But only 82.54 gm of the substance was found in envelope B when the same was opened by PW1. A similar submission was urged before the High Court and the High Court also found that this discrepancy could not be explained by the prosecution. The High Court observed that there was no doubt that envelope B which was said to contain 115 gm of charas was found to contain only 82.54 gm of charas and this could not be considered to be a minor discrepancy. However, the High Court was of the view that even if this sample contained in envelope B was not considered against the appellant on account of discrepancy in the weight, since there was no material discrepancy in the weight of the Charas found in the other envelope A, the case against the appellant stood established on the basis of the charas recovered, packed and sealed in envelope A. 13. It, therefore, concluded that the appellant could be held guilty for unauthorized possession of 98.16 gm of charas found in envelope A, if not for the total quantity of 180.70gm as charged. 14. We do not find it possible to uphold this finding of the High Court. The appellant was charged of having been found in possession of charas weighing 180.70gm. The Charas recovered from him was packed and sealed in two envelopes. When the said envelopes were opened in the laboratory by the Junior Scientific Officer, PW1, he found the quantity to be different. While in one envelope the difference was only minimal, in the other the difference in weight was significant. The High Court itself found that it could not be described as a mere minor discrepancy. When the said envelopes were opened in the laboratory by the Junior Scientific Officer, PW1, he found the quantity to be different. While in one envelope the difference was only minimal, in the other the difference in weight was significant. The High Court itself found that it could not be described as a mere minor discrepancy. Learned counsel rightly submitted before us that the High Court was not justified in upholding the conviction of the appellant on the basis of what was recovered only from envelope A ignoring the quantity of charas found in envelope B. This is because there was only one search and seizure, and whatever was recovered from the appellant was packed in two envelopes. The credibility of the recovery proceeding is considerably eroded if it is found that the quantity actually found by PW1 was less than the quantity sealed and sent to him. As he rightly emphasized, the question was not how much was seized, but whether there was an actual seizure, and whether what was seized was really sent for chemical analysis to PW1. The prosecution has not been able to explain this discrepancy and, therefore, it renders the case of the prosecution doubtful.” 10. Moreover, the prosecution has not produced the head Moharir of the police station or any other officer of the police station who could have deposed that the said Poppy Straw was kept in safe custody. No Malkhana register was also produced for perusal of the Court. 11. Thus, it cannot be said that the contraband material, which was sent to the FSL and which was produced before the Court, were kept in safe custody and the said contraband material was not disturbed by any of the persons or officers of police station. The prosecution has not produced any letter of the Sessions Judge or the Magistrate under whose orders the contraband was sent to the F.S.L. It is obligatory on the part of the prosecution to prove that the said sample of contraband material was kept in safe custody and thereafter it was sent to the F.S.L. and rest of the recovered contraband material was kept in safe custody till it was produced before the Court. In absence of such evidence the entire evidence of search, seizure and arrest of the appellant become doubtful and, as such the link evidence is missing in this case. In absence of such evidence the entire evidence of search, seizure and arrest of the appellant become doubtful and, as such the link evidence is missing in this case. I am fortified with the view taken by Allahabad High Court in Shiv Charan Vs. State A.C.C. 1999 (38) p/181 in which it has been held as under :- “6. A perusal of the record of the case shows that the prosecution had not given link evidence. It is not given link evidence. It is not known where the seized charas was kept after it was recovered from the possession of the appellant. It is also not known that who had carried it from the place of recovery to the place of storage. No evidence was also adduced as to who had carried the charas in question to the Chemical Examiner. The said Charas is said to have been recovered on 11-10-1990 and the report of the chemical examiner is dated 26-8-1993 from which it appears that it was received in the office of chemical examiner by means of letter dated 5-11-1991. No evidence is given to show that the Charas in question remained intact in the sealed bag for a period of more than one year i.e. from 11-10-1990 to 5-11-1991. In view of this, it cannot be said that the same Charas was sent to the chemical examiner for his report which was recovered from the possession of the appellant. Hon’ble the Supreme Court in the case of Valsala Vs. State of Kerala 1993 (30) ACC 605 S.C. has held that in the absence of link evidence, the conviction under the N.D.P.S. cannot be sustained.” 12. It has also been held in Valsala Vs. State of Kerala 1993 Supp. (3) S.C.C. pg/665 that :- “We have seen the report of the Chemical Examiner and there no doubt it is mentioned that one sealed parcel was received containing a powder and it was analysed to be brown sugar. It has also been held in Valsala Vs. State of Kerala 1993 Supp. (3) S.C.C. pg/665 that :- “We have seen the report of the Chemical Examiner and there no doubt it is mentioned that one sealed parcel was received containing a powder and it was analysed to be brown sugar. But from the records it is clear and it is also noted by both the courts below that the seized article was produced in the court only on 14-1-1988 i.e. after a period of more than three months and there is no evidence whatsoever at all to show with whom the seized article was lying and even assuming that it was in the custody of PW6, the Officer in charge of the police station who seized it, there is again nothing to show whether it was sealed and kept there. The learned counsel for the State no doubt argued that the provisions of Section 55 of the Act are not mandatory but only directory. We need not go into this legal question in this case. Suffice it to say that the article seized appears to have been not kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the Chemical Examiner. There is a big gap and an important missing link. In the mahazar Ex. P-2 which is immediately said to have been prepared, there is nothing mentioned as to under whose custody it was kept after seizure. Unfortunately for the prosecution even PW6 does not say that he continued to keep it in his custody under seal till it was produced in the court on 14-1-1998. The evidence given by PW6 Police Sub-Inspector, who seized the article is absolutely silent as to what he did with the seized article till it was produced in the court. As a matter of fact he did not produce it in the court. PW3, A.S.I. is supposed to have produced the same in the court. But PW3 does not say anything about this. As a matter of fact he did not produce it in the court. PW3, A.S.I. is supposed to have produced the same in the court. But PW3 does not say anything about this. It is only PW7 the Circle Inspector who comes into the picture at a later date, who admitted in the cross examination that the seized article was sent by PW3 (A.S.I.) to the court and PW7 in his cross examination further admitted that he did not even see if the recovered material object was sealed but still he claims that he made the necessary application for sending the material object for chemical examination and it is only through PW7 that the Chemical Examiner’s report is marked. PW7 further admitted that he did not even know when it reached the court. We are constrained to say that the investigation in this case has been perfunctory and on important aspects the evidence of the concerned officers is highly discrepant and unconvincing and does not throw much light. Therefore, the evidence adduced is wholly insufficient to conclude that what was seized from the appellant alone was sent to link. Both the courts below have not examined this aspect in a proper perspective. No doubt the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof, the courts cannot convict. 13. It has been held in State of Tamil Nadu & another Vs. Muniandi 2001 J.Cr. SC p/308 that:- “9. …………………..The I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness PW1 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 section 55 of the NDPS Act. The prosecution had 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. ………” 14. The Hon’ble Supreme Court has observed in State of Rajasthan Vs. Gurmail Singh 2005 SCC (Cri) p641 that:- “2. ……………In the first instance, though the seized articles are said to have been kept in the malkhana on 20-5-1995, the malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW6 on 5-6-1995. Gurmail Singh 2005 SCC (Cri) p641 that:- “2. ……………In the first instance, though the seized articles are said to have been kept in the malkhana on 20-5-1995, the malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW6 on 5-6-1995. We further find that no sample of the seal was sent alongwith the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles.” 15. It has also been held by this Court in Mr. Harman Chrust Vs. State 2005(1) U.D. p/736 that the prosecution cannot prove its case against the accused without the link evidence that the seized article was not tampered with during the period it remained in the custody at police station and thereafter at malkhana is completely missing. 16. In the case in hand, the link evidence was not produced by the prosecution. The evidence, which was produced by the I.O. of taking the sample and sending it to the F.S.L., is not satisfactory. Thus, the manner in which the seized substance was handled by the police and the investigating officer, did not rule out the possibility of manipulation. This fact further leads to take an inference that the search, seizure and arrest of the appellant were doubtful. 17. In view of the foregoing discussion and on the basis of the aforesaid evidence, I am of view that it would not be safe to convict the appellant and the appellant is entitled to get the benefit of doubt. Therefore, the prosecution has not established the guilt beyond any reasonable doubt against the appellant. I find that the learned trial court has erred in convicting and sentencing the appellant. Hence, the appeal is allowed and the conviction and sentence against the appellant awarded by the trial court are set aside. The appellant is acquitted from the charge levelled against him. 18. Let the lower court record be sent back to the court concerned. The compliance report be submitted within a period of three months.