Judgment Surinder Singh, J. Appellant hereinafter to be referred as “the accused” was charge-sheeted, tried and convicted for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’, for allegedly keeping in his possession 12 Kgs of Charas, as such, sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,50,000/- with default clause, which has been challenged by the accused in the present appeal. 2. In short, the prosecution story, as emerges from the evidence on record, can be stated thus. On 25th December, 2007, the police party headed by PW13 ASI Ajeet Kumar was on patrolling duty in Damtal Bazar, which entry was made in the daily diary/Roznamcha copy whereof is Ext.PW9/A. Near Police Post, they put a Naqa and around 8 a.m., a private bus bearing registration No.HP-73-0197 owned and being driven by the accused came there, which was stopped. There was none inside the vehicle except the accused who was driving it. PW13 aforesaid associated PW1 Rasal Singh and PW3 Ramesh Chand as independent witnesses, who were present in a tea-stall nearby.PW13 ASI Ajeet Kumar and PW7 HC Raj Kumar entered the bus and recovered a gunny bag which was found lying near the legs of the accused. The accused was asked to open it and he became nervous, but however on opening the gunny bag, it contained 12 packets of Charas, weighing 1 Kg. Each. PW8 HHC Surjit Singh was asked by PW13 aforesaid to arrange weighing machine for weightment, which he brought from the shop of PW2 Jeet Singh. Out of 12 packets, only one packet was opened and out of it, two samples of 25 grams each were separated and each of the samples were sealed with seal impression “ v ”.. The remaining bulk which included 11 un-opened packets and one opened packet were put in the same gunny bag and sealed with 9 seals of seal impression aforesaid and the case property was taken into possession vide seizure memo Ext.PW1/A in the presence of the witnesses aforesaid. (ii) The sample of seal was separately taken on a piece of cloth Ext.PW1/B and seal after its use was handed over to PW1 Rasal Singh. NCB forms in triplicate were filled in, one of which is Ext.PB. (ii) The sample of seal was separately taken on a piece of cloth Ext.PW1/B and seal after its use was handed over to PW1 Rasal Singh. NCB forms in triplicate were filled in, one of which is Ext.PB. The facsimile of seal used on the spot was also taken on the NCB forms aforesaid. (iii) Police prepared site plan Ext.PW13/B of the place from where the alleged recovery of Charas was effected. (iv) Rukka Ext.PW4/A was prepared and sent through PW8 HHC Surjit Singh for the registration of the case, on the basis of which FIR Ext.PW4/B was formally registered. PW8 HHC Surjit Singh brought the case file and handed over to PW13 ASI Ajeet Kumar on the spot. (v) Accused was arrested and grounds of arrest were informed to him and information was sent to the official superior within the statutory period. Police also took into possession the bus vide memo Ext.PW1/C and kept in the Police Station. To this effect, entry was made in the Roznmacha, copy whereof is Ext.PW12/A. (vi) Case property was produced before PW12 Inspector/SHO Shakti Parshad for resealing. He resealed all the three parcels aforesaid with seal impression “T”. Its specimen was taken on Ext.PW12/B and took the facsimile of seal impression “T” on the NCB forms. Thereafter the case property alongwith seal was handed over to PW4 MHC Rajinder Singh for its deposit in the Malkhana. (vii) PW4 MHC Rajinder Singh made its entry in the Malkhana register, abstract whereof is Ext.PW4/D. On the same day, one of the samples was sent for analysis to FSL Junga vide RC Ext.PW4/E through PW5 C. Rachpal Singh, who deposited it on 26.12.2007 in the Laboratory and to this effect, he had taken receipt on the R.C. aforesaid. (viii) The sample so sent examined in the Laboratory, tested positive for Charas. The report is Ext.PA. (ix) Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure and after completing the challan, it was presented in the Court for the trial of the accused. 3. The accused was accordingly charge-sheeted, for the offence aforesaid, to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor. 3. The accused was accordingly charge-sheeted, for the offence aforesaid, to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor. He took up the stand that there were passengers in the bus, who were unknown to him. However, no evidence in defence was led. 4. Thereafter the matter was heard by the learned Special Judge, but during the course of arguments on 27.11.2008, learned Public Prosecutor made a mention that he intends to move an application to get examined the sample to be drawn from remaining 11 packets of the Charas. The record reveals that on 1.12.2008, an application under Section 311 of the Code of Criminal Procedure was filed to this effect, which was resisted and contested by the accused, ultimately after hearing the parties, vide order dated 9.1.2009, it was allowed. The learned trial Court directed the Investigating Officer to draw the sample before the Court out of each of remaining 11 packets and sent it for examination to the Laboratory. It appears that the samples were drawn and taken to the Laboratory for its analysis by PW14 C. Kuldeep Singh vide R.C. Ext.PW14/A on 15.1.2009, which was deposited in the Laboratory on 17. 1.2009. All the samples again tested positive for Charas. The report of examination is Ext.PW15/C, thus supplementary challan was filed in the Court below and the prosecution further examined PW14 C. Kuldeep Singh, PW15 HHC Sushil Kumar and PW16 Inspector Sanghi Ram. The supplementary statement of the accused under Section 313 of the Code of Criminal Procedure was recorded on 23.3.2009. Thereafter, he entered into the defence and examined DW1 Har Simran Singh, a press correspondent to prove the news item Mark-D which had appeared in ‘Amar-Ujjala’ wherein the story was that the alleged contraband was apprehended during the night and not during the day as alleged by the prosecution. 5. The learned trial Curt disbelieved the defence taken by the accused, however relying upon the prosecution witnesses, convicted and sentenced him for the offence charged as aforesaid, which is under challenge. 6. 5. The learned trial Curt disbelieved the defence taken by the accused, however relying upon the prosecution witnesses, convicted and sentenced him for the offence charged as aforesaid, which is under challenge. 6. Shri N.S. Chandel, learned counsel for the accused forcefully argued that the prosecution has failed to link the accused with the report Ext.PW15/C with respect to 11 packets of Charas alleged to have been recovered from the accused and further that the record does not reveal that the samples in question were taken in the presence of the accused and it is also not clear whether the samples were taken. There is no certificate or any observation of the Court made in the zimini orders that the samples were taken in the presence of the Court. Except that, there is reference in the daily diary that these were taken in the presence of the Presiding Officer of the Court. He also pointed out that after the samples were alleged to have been taken by PW16 Inspector Sanghi Ram on 9.1.2009 which were deposited with MHC on 10.1.2009 and he did not make any reference as to where he had kept these samples during the previous night, more specifically when he had not deposited/entrusted the seal used for sealing either in the Court or with third person. In these circumstances, the possibility of tampering the sample parcels can also not be ruled out. It is also argued that the samples were handed over to PW14 C. Kuldeep Singh on 15.1.2009, but these were deposited in the Laboratory on 17.1.2009. He did not say any where in his statement as to where he had kept these samples during all these days. 7. On the other hand, Shri R.K. Sharma, learned Senior Additional Advocate General duly assisted by Shri Ramesh Thakur, learned Assistant Advocate General while supporting the impugned judgment of conviction and sentence referred to the statement of the witnesses and ventilated that the link evidence in the instant case is complete and further the proceedings drawn before the Court are also spelt out from the zimini orders dated 9.1.2009 and PW16 Inspector/SHO Sanghi Ram in his statement testified that he had kept the sample parcels with him as he could not return to the Police Station because the vehicle was under repair at Gaggal. On 10.1.2009, when he reached the Police Station, he deposited the case property with the MHC, who made its entry in the relevant register and sent it for analysis through PW14 C. Kuldeep Singh and so long as it remained with them, there is evidence that it remained un-tampered. According to him the report of analysis Ext.PW15/C stands fully connected with the 11 parcels which were alleged to have been recovered from the accused alongwith 12th packet from which the sample was already taken and sent with due promptness to the Laboratory and the report is Ext.PA. 8. We have given our thoughtful consideration to the rival contentions raised by the parties and have carefully and meticulously reappraised the evidence on record. 9. At the very outset, we would like to say that the report Ext.PW15/C is not connected with 11 parcels of Charas alleged to have been recovered from the possession of the accused for the reasons mentioned here-in-after. 10. The record reveals that the accused was charge-sheeted for carrying/transporting 12 Kgs of Charas kept in a gunny bag, in 12 separate parcels of 1 Kg. each. Initially from one of the packets, two samples of 25 grams each were taken separately and sealed with seal impression “ v ”. The remaining bulk i.e. 11 parcels from which samples were not drawn and the 12th from which samples were already drawn were resealed in the same gunny bag with the same seal. This defect was noticed during the arguments by the learned Public Prosecutor when the trial of the accused was complete and the matter was fixed for arguments, as such, he moved an application under Section 311 of the Code of Criminal Procedure on 1.12.2008 which was finally decided on 9.1.2009 allowing the application. While allowing the application, learned trial Court directed the Investigating Officer/SHO to take the sample. While allowing the application, learned trial Court directed the Investigating Officer/SHO to take the sample. The relevant portion of the order is extracted and reproduced as under:- “The S.H.O./I.O. is directed to draw the sample before the court out of these 11 packets from each packets separately as the sealed gunny bag produced with the seal of the court which is allowed to be opened and after taking sample from each packet the gunny bag be again sealed with the seal of the court and the defence can also be associated if so required and thereafter these samples be sent for chemical examiner through special messenger and the report be ensured on or before next date. Hence, this application is allowed. Now for the report of chemical examiner to come up on 20.2.2009 and bringing the same in record. Sd/- (K.S. Chandel) Special Judge Kangra at Dharamshala”. 11. The above order dated 9.1.2009 does not reveal under whose orders and how the case property was brought to the Court on that day and after the previous date of leaving when it was last produced in the Court where it was kept. Thereafter on 9.1.2009 in whose presence the seals were certified to be intact and samples taken. After taking the samples, with which seal these were sealed and remaining bulk also resealed and further to whom the seal after its use was entrusted. 12. The record reveals that for the first time, the case property was produced in the Court on 13.10.2008, when PW1 was examined. The bigger parcel (gunny bag) was exhibited as Ext.P1 and smaller i.e. sample parcel Ext.P2. The observations of the Court that on the bigger parcel Ext.P1 the seals found were intact, thus it was permitted to be opened. All the 12 parcels were shown to the witness and marked as packets Ext.P4 to P15 and the gunny bag was exhibited as Ext.P3. Thereafter on the same day PWs 2 and 3 were examined and case property was exhibited to them. The matter was adjourned for 14.10.2008 for the statement of remaining witnesses, but we did not find anything on record whether the case property was sealed with the seal of the Court and then handed over to the police for its safe custody. The matter was adjourned for 14.10.2008 for the statement of remaining witnesses, but we did not find anything on record whether the case property was sealed with the seal of the Court and then handed over to the police for its safe custody. Surprisingly as per observations of the Court while showing it to PW7 HC Raj Kumar on 14.10.2008 it was observed that it contained seals of the Court at six places which were found intact. Then again, on 16.10.2008 the case was taken up for evidence and the case property was exhibited to PW13 ASI Ajeet Kumar. There is nothing on record regarding resealing on 14.10.2008 and no observation of the Court that it was produced with seal of the Court nor there is any order of sealing it again, then how the case property when produced before the Court on 9.1.2009, was having the seal of the Court and there is no such order of resealing and keeping the seal in safe custody. 13. Further we also find that there was a direction to the SHO/Investigating Officer to draw the samples before the Court out of each of remaining 11 packets, which stood already opened before the Court on 14.10.2008 and 16.10.2008. PW16 Inspector Sanghi Ram testified that he was called by the learned Public Prosecutor for taking samples in compliance to the orders of the Court. He reached the Court at 4 P.M., thereafter he opened the seals of the gunny bag, in which all these 12 packets were lying, then he had drawn samples out of each of the 11 packets. But, when this gunny bag was already opened by the Court as per orders aforesaid and in absence of any order for resealing by the Court on 14.10.2008 and 16.10.2008, then what is the relevance of taking these samples. PW16 admits that the samples were not taken in the presence of the accused but also did not say that these were taken in the presence of the Court nor there is any zimini order to this effect that the sampling was done in the presence of the Presiding Officer of the Court, if it was so done, he was under obligation to record the proceedings in the zimini orders. The recording of such proceedings in the daily diary that too on the next day i.e. on 14.1.2009 would loose its importance and not cure this illegality/irregularity. 14. In this case, the sorry state of affairs does not end here. The 11 parcels of the Charas were allegedly handed over to PW15 MHC Sushil Kumar on 10.1.2009 regarding which he made an entry in the Roznamcha. PW16 Inspector/I.O. Sanghi Ram did not reveal where these sample parcels were kept by him on 9.1.2009 whereas these were deposited on the next day at 4 p.m., thus the possibility of tampering in the samples cannot be ruled out, more specifically when the seal used for sampling remained with him. 15. Further PW14 C. Kuldeep Singh was entrusted with 11 samples to deposit it in the Laboratory on 15.1.2009. He also kept these samples with him from 15th to 17th January, 2009, but did not say anywhere that he was entrusted with any of the sample seals Exts.PW16/B to D for its deposit in the Laboratory. The road certificate Ext.PW14/A though speaks about the sending of 11 sample parcels alongwith sample seal, but the receipt of the Laboratory shows that they never received the sample seal. Further the analysis report Ext.PW16/C reveals that sealed parcels were received on 17.1.2009 in the Laboratory, but it did not contain any of the sample of seals, however, the description of the parcels has been given in column No.7 whereby 11 parcels were found sealed with seal impression “A” which were intact and tallied with the sample impression sent by the SHO on the form NCB-I, whereas no such form as stated to have been filled by him on 9.1.2009 qua these 11 samples. All the three samples of seal Ext.PW16/B to D are available on the file, but there is nothing on record that any of these samples ever sent to the Laboratory alongwith the sample parcels. 16. Therefore, in our considered opinion, the report Ext.PW15/C is not connected with the alleged recovered stuff of 11 parcels from the accused. In the above circumstances, the benefit of doubt has to be given to the accused as the prosecution has failed to prove that the samples were drawn from 11 packets of Charas which were recovered from the accused. 17. In the above circumstances, the benefit of doubt has to be given to the accused as the prosecution has failed to prove that the samples were drawn from 11 packets of Charas which were recovered from the accused. 17. Insofar as one of the parcels weighing one Kgs from which the sample was initially drawn is concerned, stands fully connected to the recovery and it had tested positive for Charas as per report Ext.PA. According to PW13 ASI Ajeet Kumar, out of 12 parcels of 1 Kgs. each were recovered from the accused from the bus as aforesaid, he had drawn the sample from one of the packets. These samples were two in numbers weighing 25 grams each. These were sealed with seal impression “ v ” and all these 12 parcels were sealed separately with the same seal in the gunny bag Ext.P3. The case property was taken into possession vide seizure memo which was resealed with seal impression “T” by the Inspector/SHO on the very same day. Sample parcel was taken by PW5 C. Rachpal Singh for its analysis vide RC Ext.PW4/E. It was deposited by him on the very next day in the Laboratory and on analysis as stated above, it tested positive for Charas, as it contained the resin to the extent of 16.76% W/W of Cannabis. The link evidence is complete qua the sample taken from 1 Kgs parcel till its analysis, thus on the basis of the judgment of Division Bench of this Court rendered in Dharam Pal v. State of Himachal Pradesh and Another [Latest HLJ 2007 (HP) 827] the accused is held liable for the possession of the 167.6 grams of Charas or say slightly less than 200 grams of Charas in 1 Kg. stuff within the meaning of Section 2(iii)(a), of the Act. Therefore, his conviction for the offence punishable under Section 20 of the Act to the above extent which is less than “commercial quantity” and more than “small quantity” stands affirmed but sentence is modified and reduced from “ten” years imprisonment and fine of Rs.1,50,000/- to “three” years imprisonment with a fine of Rs.50,000/-.In default of payment of fine, he shall further undergo simple imprisonment for a period of six months. 18. 18. Since the accused is already in jail w.e.f. 25.12.2007 and has already undergone more than the sentence imposed, therefore, he be released forthwith, if not required in any other case. The appeal is partly allowed and stands disposed of. 19. The Registry of this Court is hereby directed to send the warrants of release of the accused forthwith, in conformity with the judgment of this Court. 20. Send down the records.