JUDGMENT : Alok Singh, J. 1. Present appeal is directed against judgment and order dated 15.02.2006 passed by Special Judge, Uttarkashi in Special Sessions Trial No. 3 of 2003 whereby appellant was found guilty for the offence punishable under Section 8 read with 20(b) ii (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”) and was sentenced to undergo three years rigorous imprisonment and to pay fine of Rs. 5,000/- and in default of making payment of fine, to undergo additional imprisonment of sixth month. 2. Brief facts of the present case, inter alia, are that Sub Inspector Seth Pal Singh (PW5) lodged a check FIR No. 1 of 2003 on 14.02.2003 at 4.00 p.m. with police station Purola, District Uttar Kashi stating therein that on 14.02.2003 at about 09.45. 2. Brief facts of the present case, inter alia, are that Sub Inspector Seth Pal Singh (PW5) lodged a check FIR No. 1 of 2003 on 14.02.2003 at 4.00 p.m. with police station Purola, District Uttar Kashi stating therein that on 14.02.2003 at about 09.45. a.m., one police informer passed a secret information that some persons, carrying charas, would pass from Yamuna bridge near Kyara Cheena area between 02.00 p.m. and 02.30 p.m.; receiving this information, PW 5 Seth Pal Singh requested the Tehsildar, Badkot Sri S.S. Panwar to accompany them for search of accused; Tehsildar Badkot arrived at the police station with his driver; thereafter, SI Seth Pal Singh (PW5), Tehsildar Sri S.S. Panwar, Constable Praveen Kumar, Constable Virendra Singh Chauhan, Constable Pradeep Kumar, Constable Jagmal Singh, Constable Sandeep Kumar, Constable Bhopal Singh and police informer went to the spot; SI Seth Pal Singh took measuring scale and measurements from the shop of Narendra Singh @ Bobby situated in Damta market; police party tried to have independent witnesses, however, none could agree to become independent witness; thereafter, members of the police party, searched each other and having satisfied that none of them was carrying any illegal thing proceeded towards Kyara Cheena; they stood behind one shop; after some time, they saw five persons were coming across the Yamuna bridge; police informer pointed out towards them and told the police party that these were the persons, who were carrying charas with them; having pointed out the police, informer left the place; police party encircled them; on search, pieces of black substance were recovered from each of the five accused and they had disclosed their names as Bhola, Raj Singh, Sandeep, Nagendra, Dinesh; PW5 Seth Pal Singh smelled the black substance recovered from the polythene bags carried by the five accused and found that the black substance was charas; he asked for license but they failed to produce it; 50-50 gms. of charas was taken out from each polythene bag, for the sample purpose and were kept in two different seal covers and rest of the contraband, so recovered from the appellants, were kept in different seal covers; seizure memo and arrest memo were prepared on the spot; all the accused were brought to the police station and thereafter, check FIR was registered in the police station. 3. 3. PW 4 Layak Singh Yadav conducted the investigation in the matter, who submitted a charge-sheet against the appellant on 04.05.2003. 4. Learned trial court framed charge against the appellant for the offence punishable under Section 8/20(b) (ii) (B) of the NDPS Act. Appellant denied charges and claimed trial. 5. To prove the prosecution story, PW1 Constable Praveen Kumar, PW2 Tehsildar S.S. Panwar, PW3 Constable Atar Singh, PW4 SI Layak Singh Yadav Investigation Officer and PW5 SI Seth Pal Singh were examined. Statements of appellant were recorded under Section 313 Cr.P.C. 6. Learned trial court, having perused the entire material made available on record, vide judgment and order under appeal convicted and sentenced the appellant, as mentioned hereinabove. Feeling aggrieved appellant has preferred present appeal. 7. Heard Mr. Ramji Srivastava, Advocate for the petitioner and Ms. Pushpa Bhatt, Deputy Advocate General for the State of Uttarakhand and perused the record. 8. As per the statement of PW5 Sub Inspector Seth Pal Singh, he had searched and arrested the appellant; he kept the contraband, so recovered from the appellant and sample thereof, in different seal covers, sample seal was also prepared on the spot. PW 2 S.S. Panwar, Tehsildar nowhere stated that sample seal was prepared before him. Five accused were arrested, all of them were carrying contraband in blue polythene; as to how PW 5 Seth Pal Singh has differentiated the charas recovered from five accused is not known. 9. I have perused the entire record very meticulously with the help of learned counsel for the parties but I could not find entries of Maalkhana register and sample seal, so prepared by PW5 Seth Pal Singh on the record. 10. It seems that Maalkhana register was not produced on record. From the perusal of record, it seems that vide order dated 05.03.2003 sample, so drawn by the PW5 on the spot, was sent for chemical examination through Constable Ram Niwas and Constable Ram Niwas was not produced to prove that he carried the samples under the seals and signatures of PW5 along with sample seal and there was no tempering with the seal in the intervening period i.e. from the time samples were handed over to him from Maalkhana and till the time, he had handed over the same to FSL. 11. In the opinion of this Court, sample seal is a very important piece of link evidence. 11. In the opinion of this Court, sample seal is a very important piece of link evidence. In this regard, Hon'ble Apex Court in the case of State of Rajasthan Vs. Gurmail Singh reported in 2005 (3) SCC 59 has observed 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 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the seal was sent along with the sample to 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.” 12. In the firm opinion of this Court, in the absence of sample seal of PW5 and entries of Maalkhana register prosecution has failed to produce very important link evidence, therefore, prosecution story cannot be said to have been proved beyond reasonable doubt. 13. In view of the observations made hereinabove, in the considered opinion of this Court, prosecution has miserably failed to prove prosecution version beyond reasonable doubt. Consequently, conviction of the appellant, merely on the basis of suspicion, cannot be upheld, therefore present appeal is allowed. Impugned judgment and order dated 15.02.2006 passed by Special Judge, -Uttarkashi in Special Sessions Trial No. 3 of 2003 is hereby set aside. Appellant stands acquitted. Appellant is on bail. He need not to surrender before the court unless wanted in any other case. His bail bonds are cancelled and sureties are discharged. 14. Let copy of this judgment be sent to the trial court along with lower court record.