In order to secure a conviction under the NDPS Act, the prosecution must prove beyond reasonable doubt that the sample of the seized substance sent to the FSL was the same sample that was seized from the accused.

1. - This appeal arises out of the judgment dated 22.1.96 passed by learned Special Judge, NDPS Act Cases, Jodhpur whereby the appellant has been held guilty of the offence under Section 8/18 of the NDPS Act, 1985 (hereinafter referred as `the NDPS Act') and sentenced to undergo 10 years R.I. and a fine of Rs. 1,00,000/- or in default to undergo two years R.I.

2. The prosecution case is that Shri Vikram Singh, SHO, Bhojasar received information by Mukhbir on 24.3.94 at 2.30 PM that the appellant Shri Ram is engaged in the trade of contraband opium and opium is lying in his shop. SHO, Vikram Singh reached on the shop and found the appellant standing outside, who was served the notice under section 50 of the NDPS Act and on search of the shop the appellant himself produced from his shop one polythene packet containing 220 grams of contraband opium. The sample was taken and sealed and after recording the FIR and usual investigation, a charge-sheet was submitted against the appellant. The appellant denied the charge. The prosecution produced oral and documentary evidence. The learned Special Judge, NDPS Act Cases, replied upon the testimony of PW 8 Vikram Singh, PW 4 Motisingh, PW 5 Ugamsingh and PW 7 Bhanwar Singh and recorded the conviction and the sentence as stated above.

3. I have heard learned counsel tor the appellant and the learned Public Prosecutor for the State. Learned counsel for the appellant has argued that the compliance of mandatory provision under Section 50 of the NDPS Act has not been made. The opium has not been recorded from the exclusive and conscious possession of the appellant as the shop did not belong to him. Mukhbir information taken down by Shri Vikram-Singh was not sent to the superior officer and prosecution has also failed to prove that the sample remained intact until it was delivered to the Forensic Science Laboratory, Rajasthan, Jaipur. On the other hand, learned Public Prosecutor has submitted that the offence under section 8/18 of the NDPS Act has been proved beyond reasonable doubt. The opium has been recovered from the shop in his possession and not from his person, therefore, compliance of the provision under section 50 of the NDPS Act was not required at all. The prosecution has also proved that the sample remained intact and was not tampered with in any manner until it was deposited with the Forensic Science Laboratory Rajasthan, Jaipur.

4. I have carefully considered the rival contentions. The appellant has challenged his conviction on numerous grounds but it is not necessary to deal with all the grounds as the appeal can be disposed of on the ground alone that whether the prosecution has established that the sample remained intact and there was no possibility of tampering with the sample.

5. The learned lower court has discussed this aspect of the case in para 18 of the judgment and it has been held that a specimen seal has been separately sent on a memo that it has not been affixed in the Malkhana register maintained in the Police Station. It has been held that the SHO, wrote a letter Ex.P-11 to Superintendent of Police, Jodhpur for sending a sample Mark A to the FSL Jaipur and with this letter the memo of impression seal in triplicate has also been sent to Superintendent of Police Office. The SP also forwarded the specimen seal letter with the sample by its letter Ex.P-9 to FSL, Jaipur. The learned lower court has also observed that the FSL report Ex.P 14 shows that seal on the sample mark A was tallied with the impression seal and it was found intact. Therefore, the learned court has come to the conclusion that impression seal was sent to the FSL, Jaipur of the seal by which the sample were sealed at the time of search and seizure. The learned lower court has also dealt with the testimony of other relevant witnesses who were involved in keeping the sample in the Malkhana and carrying the sample to SP Office and ultimately to FSL, Jaipur. According to the learned lower court it i