1. - This is an appeal against the judgment of the learned Special Judge, NDPS Cases, Chittorgarh, dated 04.08.2003, whereby he has convicted the accused appellant Kailash Chandra for the offence under Sec. 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred-lo as "the Act" and sentenced him to undergo ten years' R.I. and a fine of Rs. one lac and in default to further undergo one year's S.I.

2. Facts leading to this appeal are that on 30.07.2000, Durga Dutt, Dy. S.P., Chittorgarh, received a secret message that accused Kailash Chandra will sell opium to the smugglers coming from outside in between Sarthal and Bhatiyaon Ka Kheda. The information was recorded in the Rojnamcha and after taking motbirs and after sending information under Sec. 42(2) of the Act, went at the spot. At 11.25 PM, one person came walking on foot from the side of Sarthal with one gunny bag in his hand. They caught hold of him and made a search. During search, opium measuring 5.500 Kgs. was recovered. Two samples of 30 gms. each were taken and sealed. After sealing the samples and the recovered articles, the case was registered under Sec. 8/18 of the Act. The samples were sent for chemical examination. After filing of the challan, the accused was charged under Sec. 8/18 of the Act, to which he pleaded not guilty. The prosecution examined 12 witnesses. The statement of accused was recorded under Sec. 313 Cr.P.C. He produced two witnesses in defence. After hearing, the learned trial Judge convicted the accused as above.

3. While assailing the judgment of the learned trial Judge, learned counsel for the appellant has questioned the legality of the judgment only on one point i.e. with regard to non-sending specimen seal on the samples and recovered articles by Durga Dutt, Dy.S.P., which was affixed at the time of recovery and also non-examination of the Malkhana Incharge Shankerlal. He has further submitted that this provision, though being directory, has been found to be fatal to the prosecution because of the fact that in the recovery memo, it is stated that the recovered opium was in liquid form but in the FSL Report, it is described as semi solid sticky substance. According to the learned counsel, this variance in the recovery memo and the FSL Report leads to the conclusion that non-production of the seal before the F.S.L. which was affixed at the time of recovery and non-examination of Malkhana Incharge, has resulted in tampering with the recovered articles. In support of his contention, he has relied upon certain citations, which will be referred at the appropriate place.

4. Per contra, learned Public Prosecutor has supported the judgment of the trial Court and has contended that the provisions of Section 55 are directory in nature and it cannot be said that the seal was tampered, because specimen seal of the Police Station was sent to the F.S.L.

5. Having considered the rival contentions put forth and going through the evidence on record, it reveals firstly from the statement of Durga Dutt (PW 1), who prepared Ex.P. 7, recovery memo, that the recovered opium was dark brown coloured liquid substance and the seal on this recovery memo is of Durga Dutt, Dy. S.P. marked as 'D', which was destroyed on the spot but a separate specimen impression was taken on memos Ex. P. 8 and Ex. P. 9. The FSL Report Ex. P.22, wherein the description of the articles has been given as dark brown coloured semi solid sticky substance. When this inconsistency in description of articles has been given in the recovery memo and the articles sent to F.S.L., then the Court has to see as to whether the seals were intact in accordance with Section 55 of the Act so as to arrive at the conclusion that the material recovered was infact sent for the chemical examination. In this regard, admittedly, officiating Malkhana Incharge Shankerlal, to whom the specimen seal impression and the articles were given on 31.07.2000, has hot been produced. The memo