JUDGMENT Hon’ble Alok Singh, J. This is an appeal against the judgment and order passed by Special Sessions Judge, Udham Singh Nagar dated 20th July, 2009 in Special Sessions Trial No. 63 of 2007, whereby appellant was found guilty for the offence punishable under Section 8/20 of the N.D.P.S. Act and was sentenced rigorous imprisonment for a period of ten years and to pay fine of Rs.1 lac, and in default of making payment of fine, to undergo additional simple imprisonment of one year. 2. Brief facts of the present case, inter alia, are that on 31/01/2007, Inspector J.C. Pathak PW3 alongwith Pooran Lal Verma PW1, H.C.P. Mahendra Pal Singh PW4, Constable Harish Sharma, Constable Balkrishna, and Constable Bhupendra Singh left Thana vide G.D. No. 45 at 6:40 p.m. for law and order duty; when police party was going from village Alawardi towards village Naugawannath, they noticed appellant coming on foot; having seen the police party, appellant started rushing towards village Naugawannath; however, he was apprehended by the police party at about 8:45 p.m.; on being asked, appellant disclosed his identity and told the police party that he was carrying Charas in a white plastic bag being carried by him in his hand; J.C. Pathak PW3 told the appellant that if he wish, he could be searched in the presence of the Gazetted Officer/Magistrate; however, appellant agreed to be searched by the police party; despite the fact appellant agreed to be searched by the police party, Head Constable Mahendra Pal Singh was sent to Khatima to bring weight and measurement; after sometime Head Constable Mahendra Pal Singh came back alongwith weight and measurement and told J.C. Pathak PW3 that no Gazetted Officer and Magistrate was available at Khatima. Moreover, Deputy Superintendent of Police and Tehsildar were busy in election duties and doctor was also not available in the hospital; thereafter, consent was obtained from the appellant in writing for the search by the police party; white plastic bag was recovered from the right hand of the appellant and about 7 kgs. Moreover, Deputy Superintendent of Police and Tehsildar were busy in election duties and doctor was also not available in the hospital; thereafter, consent was obtained from the appellant in writing for the search by the police party; white plastic bag was recovered from the right hand of the appellant and about 7 kgs. charas was recovered from the bag being carried out by the appellant; from the charas so recovered, 100 grams was taken out as sample and, thereafter, contraband so recovered and sample so taken out were kept in different sealed cover under the signature and survey mohar of J.C. Pathak PW3 and sample seal was also prepared and thereafter contraband and appellant was brought to Thana and Chick F.I.R. was got registered at 11:30 p.m. on 31.01.2007. 3. Investigation was handed over to S.I. Shiv Singh Gusain PW5. Investigating Officer S.I. Shiv Singh Gusai, after investigation, submitted chargesheet before the Special Judge, N.D.P.S. Charges were framed under Section 8/20 of the N.D.P.S. Act. Appellant denied the charges and claimed trial. 4. From the side of the prosecution, Inspector Pooran Lal Verma PW1, H.C. 68 Nain Ram PW2, Inspector J.C. Pathak PW3, H.C.P. Mahendra Pal Singh PW4, S.I. Shiv Singh Gusain PW5 and 75 C.P. Kailash Chandra and Arvind Kumar PW7 were examined. From the side of the appellant Smt. Sunita Devi DW1 and Pooran Kapdi DW2 were examined as defence witness. Thereafter, statement of the accused was recorded under Section 313 of the Cr.P.C. 5. Having perused the entire material made available on record, learned Sessions Judge was pleased to convict and sentence the appellant vide judgment and order impugned in the present appeal. 6. I have heard Mr. S.K. Agarwal, learned Senior Counsel assisted by Mr. Swapnil Bist, Advocate for the appellant and Mr. K.S. Rautela, learned A.G.A. assisted by Mr. P.S. Danu, learned Brief Holder for the State and have carefully perused the record. 7. Investigating Officer S.I. Shiv Singh Gusain PW5, in his statement in chief, states that sample was sent to F.S.L., Dehradun by Constable Ravindra Kumar on 1st February, 2007 after having obtained necessary approval from the Special Sessions Judge, N.D.P.S.; perusal of exhibit A-8, report of F.S.L. Dehradun, dated 11/04/2007, reveals that sample was delivered at F.S.L., Dehradun on 03.02.2007. 7. Investigating Officer S.I. Shiv Singh Gusain PW5, in his statement in chief, states that sample was sent to F.S.L., Dehradun by Constable Ravindra Kumar on 1st February, 2007 after having obtained necessary approval from the Special Sessions Judge, N.D.P.S.; perusal of exhibit A-8, report of F.S.L. Dehradun, dated 11/04/2007, reveals that sample was delivered at F.S.L., Dehradun on 03.02.2007. Constable Ravindra Kumar through whom sample was stated to be sent to F.S.L. on 01.02.2007 has not been produced in the witness box. There is nothing on record to show that sample of the contraband remained intact, untouched and un-tampered during 1st February, 2007 to 3rd February, 2007 when the same was delivered to F.S.L., Dehradun. Contention of Mr. Agarwal, learned Senior Counsel, appearing for the appellant, seems to be correct that prosecution was duty bound to produce Constable Ravindra Kumar to prove that sample was handed over to him in a sealed cover alongwith sample seal and contraband remained in his possession untouched till it was delivered to the F.S.L. Dehradun on 3rd February, 2007. 8. Mr. Agarawal, learned Senior Counsel as well as Mr. K.S. Rautela, learned A.G.A. having perused the lower court record, fairly submitted that even sample seal allegedly prepared by J.C. Pathak PW3 on the spot while keeping the contraband so recovered in a sealed packed in the seal and signature of PW3 has not been produced on record. Even entries of the malkhana register is not available on the record to prove that contraband was kept in the malkhana and at that time seal on the packet containing contraband and on the packet containing the sample were intact and remained intact till the time same were taken out; in the absence of entries of Malkhana Register, it cannot be said that contraband and sample thereof, in fact, remained in the safe custody of Malkhana. 9. Hon’ble Apex Court in the case of State of Rajasthan Vs. Gurmail Singh, reported in (2005) 3 SCC 59 , in paragraph 3 has held as under:- “We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. Hon’ble Apex Court in the case of State of Rajasthan Vs. Gurmail Singh, reported in (2005) 3 SCC 59 , in paragraph 3 has held as under:- “We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. 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 along with the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent.” 10. In view of the dictum of the Hon’ble Apex Court, prosecution was duty bound to produce on record 6 Constable Rajendra Singh, sample seal and malkhana register. However, none of them is available on record. 11. Therefore, the prosecution has failed to produce very important link evidence. Therefore, conviction of the appellant seems to be totally unjustified. 12. Consequently, the appeal is allowed. Impugned judgment and order passed by the learned Sessions Judge in Special Sessions Trial No. 63 of 2007 dated 20th July, 2009 is hereby set aside. 13. Appellant stands acquitted from the charges leveled against him. Appellant is in jail. He may be released forthwith, if not wanted in any other case. 14. Let copy of the judgment alongwith L.C.R. be sent back to the lower court for information and compliance.