( 1 ) THIS appeal by Rajan Ali is directed against the judgment dated ,3rd April 1993 convicting him under Section 18 of Narcotic Drugs and Psychotropic Substances Act (for short the Act ) and also the order dated 8th April 1993 sentencing him to undergo R I for 10 years and pay Fine of Rs. one lac, passed by an Additional Session Judge. In default of payment of Fine appellant was further to undergo Rl for two years.

( 2 ) CASE of the prosecution as borne out from the chargesheet Filed under Section 173 Cr. P. C. , is that SHO Dharam Pal Singh, PW- 5 had information that some persons from UP supply opium in the jhuggies at Majnu-ka-tila and from there is was sold in retail to the drivers who park the trucks and buses in the nearby parking. ASI Bakhtawar Singh, PW-6 and Constable Hari Singh were deputed by PW-5 to develop and verify the said information. On 28th information. On 28th January 1989 on receipt of information from an informer by PW-5 that a person having opium would come to the jhuggies, a raiding party consisting of Constables Hari Singh, Dharamvir Singh PW-3, Matwar Singh and ASI Bakhtawar Singh, PW-6 under the supervision of PW-5 was organised at about 1. 45 PM and all of them alongwith the informer left in Government vehicle No. DID-4672. On the way Sawran Singh, Haridev Joshi, Karan Singh and Narain Dass were asked to join the raiding party but they expressed their inability. In the meantime Charan Singh PW-4 met PW-5 and he on being informed about the secret information agreed to join the raiding party. Around 2. 30 PM members of the raiding party took positions near the jhuggies opposite to Punjabi Basti. It is further alleged that at about 3. 15 PM the informer told that the concerned person had come to the jhuggi with the opium. Thereupon the members of the raiding party rushed towards that jhuggi. Around 3. 25 PM accused-appellant came out of the jhuggi holding a bag of white colour in his right hand and on seeing the police party he tried to run away in a gali behind the jhuggi. He was, however, overpowered at a distance of 10 to 12 paces. Appellant was given notice in writing under Section 50 of the Act Ex. PW3/a, and the contents thereof were also read over to him. He was told that if he so desired his search could be taken either before a Gazetted officer or Magistrate. Appellant, however, declined to be searched in the presence of either of them and in token of that denial his thumb impression was obtained on Ex. PW3/a, he being illiterate. On search of the appellant by ASI Bakhatawar Singh, PW-6 substance of black colour wrapped in a momi envelope was found kept in the bag and on smelling it was suspected to be opium. On weighing, opium was found to be 5 Kg 200 grams out of which 50 grams was separated as sample. Sample and the remaining opium were converted into two parcels and sealed with the seal of BS of PW-6. PW-5 also affixed his seal of DPS on both the parcels and those were taken into possession vide memo Ex. PWS/b and handed over to PW-5. CFSL form was filled up. Rukka EX. PWI/b was sent to the police station and on the basis thereof FIR (carbon copy EX. PWI/a) was registered under Section 18 of the Act against the appellant. Sample parcel was sent to CFSL for chemical analysis and as per the CFSL report representative sample gave positive test for morphine with approximate 9. 7%.

( 3 ) IN the statement under Section 311 Cr. P. C. , plea taken by the appellant is of plain denial.

TO bring home the charge against the appellant the prosecution examined 6 witnesses in all.

( 4 ) HAVING heard learned counsel for both the parties I am of the opinion that this appeal deserves to be allowed on a short point that the prosecution has failed to produce the link evidence that the CFSL form which allegedly bore the seals of BS and DPS which seal impressions were also affixed on the sample parcel, was not deposited alongwith the case property in the malkhana nor was it sent together wit