JUDGMENT 1. - The petitioner has preferred this revision petition against the judgment dated 06.08.1997 passed by the learned Additional Sessions Judge, Bali in Criminal Appeal No.19/1992 affirming the judgment and order dated 03.12.1992 passed by the learned Judicial Magistrate, Desuri in Criminal Case No.115/1981 whereby the petitioner was convicted for the offence under Section 4/9 of Opium Act and was sentenced to undergo six months' rigorous imprisonment with fine of Rs. 500/-, in default whereof to further undergo 15 days' simple imprisonment. 2. The brief facts of the case are that in the midnight of 15/16.06.1981, at about 12.30 a.m., when a Roadways Bus No.RRB 4896 reached at Desuri Ratelav Choraha, it was inspected by the police officials of P.S. Desuri. On inspection, the petitioner-accused Vensingh was found in possession of 7.750 kg. opium and other accused Badri was also found in possession of 1.500 kg. of opium. Thereafter, after taking samples of 30 gm. each, and after sealing the same, a case was registered and investigation commenced. The samples were sent for chemical examination and after getting report, challan was filed against the petitioner-accused. Thereafter, after hearing, charge for the offence under Section 4/9 of the Opium Act was framed against the petitioner to which he denied and claimed trial. 3. After hearing the learned counsel for the parties, the learned trial court, vide judgment and order dated 03.12.1992, convicted and sentenced him as aforesaid. Being aggrieved of the aforesaid judgment and. 4. order dated 03.12.1992, the petitioner-accused preferred appeal before the learned appellate court, which was dismissed vide judgment dated 06.08.1997. 5. Again dissatisfied with the aforesaid judgments and order, the petitioner-accused has preferred this revision petition, which was admitted for hearing vide order dated 13.08.1997 and the record of both the courts below was called for. 6. I have heard Mr. Pradeep Shah, learned counsel for the petitioner and Mr. MS Panwar, learned Public Prosecutor. 7. Mr. Shah, learned counsel appearing on behalf of the petitioner submitted that the link evidence regarding the fact that the samples remained intact till they reached to the FSL is missing. The malkhana incharge and the malkhana register were not produced in the court below. Thus, the prosecution has failed to prove its case beyond reasonable doubt. 8. It was also submitted by him that samples of opium weighing 30 gm. The malkhana incharge and the malkhana register were not produced in the court below. Thus, the prosecution has failed to prove its case beyond reasonable doubt. 8. It was also submitted by him that samples of opium weighing 30 gm. each was taken from each packet and in the FSL Report (Ex.P/10), it has been mentioned that the weight of the samples were 40 gms. and 42 gms. and thus there was difference in weight. Thus, it also creates a doubt as to whether the samples remained intact till it reached to the FSL, Jaipur. He further submitted that no explanation was sought for from the petitioner-accused regarding FSL Report while his examination under Section 313 Cr.P.C. and thus the whole proceedings stand vitiated. In support of his contention, he has placed reliance upon the judgments delivered in the cases of Sharad Birdhichand Sarda v. State of Maharashtra [ AIR 1984 SC 1622 ] ; State of Rajasthan v. Kumari Vyasa Sharma [2008(2) Cr.L.R. (Raj.) 1661] and State of Rajasthan v. Pillu @ Prahalad [2009(1) Cr.L.R.(Raj.) 294] , wherein benefit of doubt was given to the accused and thereby acquitted him. 9. Per contra, learned Public Prosecutor supported the impugned judgment of conviction and order of sentence and submitted that the prosecution was successful in proving its case and the learned trial court, while considering all the aspects of the matter, rightly convicted and sentenced him and was further rightly upheld by the appellate court, which does not warrant any interference by this court. 10. I have considered the submissions made by the learned counsel for the parties and perused the record. 11. From a careful scrutiny of evidence, it is clear that the main witnesses are the official witnesses, who have stated about the search of bus, recovery of opium, sealing of samples etc. It also reveals that the malkhana incharge and malkhana register was not produced. It has simply been stated that after taking and sealing the sample, the same was deposited in the malkhana from where the same was sent to the FSL after obtaining forwarding letter from the office of Superintendent of Police. Thus, the prosecution has failed to establish complete link in the evidence. It further reveals that the samples taken were weighing 30 gms. each but when the same reached at the FSL, it was found to be weighing 40 gm. and 42 gm. Thus, the prosecution has failed to establish complete link in the evidence. It further reveals that the samples taken were weighing 30 gms. each but when the same reached at the FSL, it was found to be weighing 40 gm. and 42 gm. each. Hence it could not be proved beyond all the shadows of doubt that the samples which were deposited in the FSL, Jaipur for chemical examination were the same which were duly sealed by the Search and Seizure Officer on the spot. 12. In the case of Sharad Birdhichand Sarda (supra), the Hon'ble Supreme Court has held that unless the circumstances appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him. 13. In the present case, no explanation was sought for regarding the FSL Report from the petitioner-accused while his examination under Section 313 Cr.P.C. and no other evidence was led to prove that the recovered contraband was opium. Thus, in absence of this, his conviction cannot be sustained. 14. In the case of State of Rajasthan v. Kumari Vyasa Sharma (supra) and State of Rajasthan v. Pillu @ Prahalad (supra), the learned trial court, after considering the fact that there was difference in the weight of samples taken and samples forwarded to the FSL, acquitted the accused and the Coordinate Benches of this Court in the aforesaid cases, did not find it proper to interfere with the finding arrived at by the learned trial court. 15. In view of the above, this revision petition deserves to be allowed, which is hereby allowed. The impugned judgment and order of the learned trial court dated 03.12.1992 and that of the learned appellate court dated 06.08.1997 are set aside and the petitioner-accused is acquitted from the offence under Section 4/9 of the Opium Act. He is on bail. His bail bonds are cancelled and he need not to surrender. A copy of this order with the record of this case be sent to the learned court below.Revision Petition allowed. *******