JUDGMENT S.I. Jafri 1. The instant appeal has been preferred by Shafiq Ahmad against his conviction under section 8/20 (b) (i) of Narcotic Drugs and Psychotropic Substance Act, 1985 and sentence of 10 years' R. I. coupled with fine of Rs. 100000/- and in default of payment of fine, the appellant was directed to under go one year's R.I. recorded by Sri Amar Sinha, Additional Sessions Judge, Lucknow by his judgment and order dated 23rd March 1988 in Sessions Trial no. 432 of 1986. 2. To embark upon the prosecution case, it is alleged that appellant Shafiq Ahmad was apprehended by P. Saran, Custom Inspector PW 1 on 26th of July 1986 at about 3.20 A.M. at Charbagh Roadways bus stand Lucknow in the presence of K. C. Agnihotri, Lalmani, Rajiv Agarwal, Brij Lak and Ram Asrey and recovered 9 kg. of Charas (hempt) from a container kept in a bag from the possession of the appellant. Thereafter along with the bag, appellant Shafiq was taken to the Custom Office which lay at a distance of six Kms. from Charbagh bus stand. The aforesaid Customs Inspector P. Saran while taking the accused from Charbagh bus-stand to his office took with him two persons namely, Ajai Kumar and Ram Lakhan from amongst the crowd gathered at the time of arrest and proceeded to the custom office Lucknow and there a recovery memo Ex. Ka 2 was prepared by P. Saran, Custom Inspector in the presence of public witnesses, Ajai Kumar and Ram Lakhan. Thereafter, signatures of the aforesaid witnesses, namely, Ajai Kumar and Ram Lakhan were obtained on the said recovery memo Ex. ka 2. Later on, a confessional statement Ex. ka 1 of the accused was extracted in the writing of the accused itself. Subsequently, the accused was sent to jail the same day. On 22-10-1986, a complaint was filed against Shafiq Ahmad, accused by P. Saran, Custom Inspector in the Court of Chief Judicial Magistrate, Lucknow and the learned Magistrate took cognizance of the case against the accused and committed him to the court of sessions to stand his trial under section 8/20 (b) (ii) N. D. and P. S. Act. 3. The accused pleaded not guilty to the charge before the trial court and denied the recovery adding that the confessional statement had been extracted from him under duress. 4. 3. The accused pleaded not guilty to the charge before the trial court and denied the recovery adding that the confessional statement had been extracted from him under duress. 4. In support of its case, the prosecution examined three witnesses namely, P. Saran, Custom Inspector and Lalmani, Central Excise Inspector on the point of arrest as well as recovery of contraband (charas) from the accused. K. K. Wasi was examined as a court witness in order to prove that the contraband recovered from the accused was found to be Charas on examination by him vide his report Ex. ka 5. P. Saran PW 1 Custom Inspector has dwelt upon the prosecution story in detail deposing that he found Shafiq Ahmad accused moving about in suspicious circumstances at Charbagh Bus Stand at about 3 20 A.M. on 26-7-1986 and looking for Kanpur bound Bus, upon which he got suspicious and took search of his bag, in the presence of Lalmani PW 2, K. C Agnihotri and others and upon search, he found nine Kg. Charas from a container placed in the bag. Thereafter, he took the accused along with recovered contraband to the Custom Office lying at a distance of six Kms. from Chargagh Road-ways bus stand consequent to the request made by the accused as he was much upset there On way to the Custom Office, the witness took with him Ajay Kumar and Ram Lakhan from amongst the crowd in order to witness the recovery. He further deposed that on reaching the office, he prepared a recovery memo Ex. ka 2 of the recovery of charas from Shafiq Ahmad after about 7 A.M. in the presence of the aforesaid witnesses and the witness namely, Ajai Kumar and Ram Lakhan also put their signatures on the said recovery memo. He further deposed that the accused had made a confessional statement Ex. ka 1 in his own writing wherein he pleaded guilty. 5. K. K. Wasi was examined as court witness. He deposed that the recovered contraband from the accused was found to be Charas on examination by him. In support of his statement, he proved his report Ex ka 5. 6. ka 1 in his own writing wherein he pleaded guilty. 5. K. K. Wasi was examined as court witness. He deposed that the recovered contraband from the accused was found to be Charas on examination by him. In support of his statement, he proved his report Ex ka 5. 6. The learned Sessions Judge upon a consideration of the evidence adduced in the case, arrived at a conclusion that the prosecution had succeeded in bringing home the guilt to the accused and he accordingly convicted and sentenced the accused as enumerated above. Sri Imtiaz Murtaza, learned counsel for the appellant contended that the evidence adduced by the prosecution is tarred with material infirmities which has rendered the prosecution evidence unworthy of being relied upon and in support of his contention he pointed out that admittedly P. Saran, Custom Inspector, PW 1 did not prepare the recovery memo vouching for the recovery of Charas at Roadways bus stand shortly after the arrest of the accused, while there was no earthly reason for P. Saran PW 1 to have deferred the preparation of recovery memo at the aforesaid bus stand and had prepared the recovery memo Ex. ka 2 at the custom office after a gap of four hours. The explanation put in by P. Saran, PW 1 is that he had taken the accused to the custom office lying at a distance of six Kms. from Charbagh bus stand on the pleading of the accused and hence the aforesaid delay. The aforesaid explanation is not quite plausible and is difficult to be accepted and under the circumstances, the learned counsel also submitted that the evidence of P. Saran PW 1 and Lal Mani PW 2 is unworthy of reliance and deserves to be discarded. 7. I have devoted my anxious thought to this aspect of the matter. There appears to be substance in the contention put forth by the learned counsel for the appellant-taking into account that generally preparation of recovery memos follows shortly after the arrest and personal search of the accused in order to lend assurance to the factum of recovery and the testimony of the recovery witnesses. There appears to be substance in the contention put forth by the learned counsel for the appellant-taking into account that generally preparation of recovery memos follows shortly after the arrest and personal search of the accused in order to lend assurance to the factum of recovery and the testimony of the recovery witnesses. Once the prosecution fails to prepare recovery memo of the recovered articles from the accused shortly after the arrest and personal search and if the recovery memo is prepared later on at a place other than the place of arrest and recovery from the accused, a reasonable doubt takes birth rendering the oral testimony of the recovery witnesses regarding the recovered articles, tainted. From a scrutiny of the record, it appears that circumstances were not so compelling warranting deferment of the preparation of the recovery memo at the place of recovery and any other explanation is unacceptable in the circumstances of the case. I have myself been taken through the contents of the recovery memo Ex. ka 2 which contains a mention that the recovery memo itself was prepared at the spot whereas the recovery witnesses, namely, P. Saran and Lal Mani deposed before the trial court that the recovery memo was prepared at the custom office lying at a distance of six Kms. from the place of occurrence. My attention has also been drawn to another significant discrepancy in the prosecution case that even the two public witnesses mentioned as recovery witnesses in the recovery memo Ex. ka 2 namely, Ajai Kumar and Ram Lakhan have not been produced to support the prosecution case. I may observe here that even their production would not have helped the prosecution in any way in as much as their evidence on the point of recovery is unworthy of any credence in view of inherent blatant infirmities in the prosecution case as pointed out above. 8. I am quite alive to the fact that menace of smuggling in Narcotic drugs is on the increase in the length and width of the country like (sic) and it requires an iron hand to deal with this menace in order to nip and chek it but it does not mean that a court of law should over look such an obvious and apparent discrepancy in the prosecution case as is inherent in the instant case. It should be the endeavour of the prosecution case to act in such a way as to assurance confidence in its case and the evidence adduced by it. The evidence must be cogent, reliable and convincing. In the instant case, in view of the fact that recovery memo is at variance with the evidence given by P. Saran PW 1 and Lal Mani PW 2 in the court, that there was an indigestible gap of four hours in preparation of the recovery memo after the arrest and recovery from the accused. It is difficult to hold that the contraband weighing nine Kgs were recovered from Shafiq Ahmad at about 3.20 A.M. at Charbagh Road-ways Bus stand Lucknow by P. Saran, PW 1. 9. In his turn, the learned counsel for the State submitted that non- preparation of the recovery memo shortly after the arrest of the accused ' at the place of arrest by P. Saran, is merely an irregularity and it can easily be overcome by over-looking the same in the instant case in view of the grievous nature of the offence. It is further contended by the learned counsel for the State that besides the evidence of recovery, there is confessional statement Ex. ka 1 of the accused in his own writing testifying to the veracity of the recovery of the contraband from the accused. 10. The submissions of the learned counsel for the State as mentioned above, to my mind is devoid of any merit. In this case, the non-preparation of the recovery memo shortly after the arrest at Charbagh road-ways bus stand cannot be over-looked taking into account the reasons enumerated above as there were no compelling circumstances warranting deferment of the preparation of the recovery memo at the place of occurrence and the explanation put in by the prosecution is unacceptable. Now coming to the confessional statement of the accused, it is observed that the aforesaid confessional statement of the accused Ex. ka 1 has been retracted by the accused in the court and in view of the statement of the accused that the confessional statement was extracted from him under duress, the possibility cannot be ruled oat that circumstances were so created for the accused that he was compelled to make a confessional statement. ka 1 has been retracted by the accused in the court and in view of the statement of the accused that the confessional statement was extracted from him under duress, the possibility cannot be ruled oat that circumstances were so created for the accused that he was compelled to make a confessional statement. Besides, once the evidence of recovery from the accused has been held to be unreliable, the conviction of the accused cannot be based merely on the retracted confessional statement. A confessional statement can be used as a corroborative evidence but in the absence of any positive and substantive evidence, it would be highly unsafe to act upon confessional statement, which has been retracted, for the conviction of the appellant. In the result, the appeal is allowed. The conviction and sentences recorded by the trial court against the appellant are set aside. The appellant is in jail. He shall be released forthwith unless wanted in any other case. 11. Office is directed to comply with the aforesaid order forthwith.