JUDGMENT - I.G. SHAH, J.:---The accused who has been convicted of the offence punishable under section 20(b)(ii) of the Narcotic Drugs and Psycohotropic Substances Act, 1985 and is sentenced to R.I for 10 years and a fine of Rs. 1,00,000/-, in default further R.I. for 2 years in Sessions Case No. 576/87 on the file of the Sessions Judge, Thane, has preferred this appeal. 2. Briefly stated the facts giving rise to this appeal are as under:--- Accused Usman is a resident of Bhiwandi. P.S.I. Jadhav, Head Constable Kasurde Head Constable Pathan and Constable Gaikwad of Bhoiwada Police Station, Bhiwandi were attached to the Divisional Detection Branch, Bhiwandi in September, 1987. On 23-9-1987 they were on patrolling duty after about 5.00 p m. and while they were patrolling and when they reached near a hotel by name Tohfa on Kalyan Road at about 6.45 p.m. an informant approached them and gave them information that the accused was selling charas tablets in front of Apsara Talkies find that he was sitting on a parapet wall of a well. The police. Therefore, called two panchas and proceeded along with the panchas and the informant towards the reported scene of offence and the informant pointed out from a distance the accused who was sitting on a parapet wall of a well, The informant then went away. The police thereafter want near the accursed and caught him and affected, search of his person. In the search a plastic bag containing 69 tablets of charas is alleged to have been found in the pocket of the trouser of the accuser. Police seized the said contraband articles and after completing the formalities of effecting panchanama of seizure of the said articles, took the accused and the contraband Articles seized from the accused to Bhiwandi Town Police Station and the same were then produced before the Head Constable Kadam who was the Police Station Officer. An offence under C R. No. III-232-87 was registered and P.S.I. Dhonnar was entrusted with the investigation. On completion or investigation and receipt of the C.A. report in respect of the contraband articles alleged to have been seized from the accused, a charge sheet was filed against the accused. 3. The learned Sessions judge before whom the accused was tried, framed charge in respect of the offence under section 20(b)(ii) of the N.D. P.S. Act. On completion or investigation and receipt of the C.A. report in respect of the contraband articles alleged to have been seized from the accused, a charge sheet was filed against the accused. 3. The learned Sessions judge before whom the accused was tried, framed charge in respect of the offence under section 20(b)(ii) of the N.D. P.S. Act. The accused pleaded not guilty and claimed to be tried. His defence was of total denial. 4. On the strength of evidence led before the learned Sessions judge, he found that the prosecution had established that the accused was found in possession of charas as claimed by the prosecution and, therefore, convicted and sentenced the accused as stated earlier. Being aggrieved by the said order of conviction and sentence, the appellant-accused has come in appeal to this Court. 5. On behalf of the appellant accused, it is contended that the evidence produced by the prosecution is not trustworthy and suffers from number of infirmities and, therefore, the learned Sessions Judge was in error in holding that the prosecution has proved that the accused was found in possession of the contraband articles as claimed by the prosecution. It is also contended that the various provisions of the N.D. P S. Act which are mandatory were not complied by the police while raiding the accused and, therefore, also the alleged seizure of contraband articles from the accused cannot be relied upon. 6. The prosecution in order to prove the case against the accused, examined P.W.1-Head Constable Kasurde, P.W. 2 . Pujari, the panch witness, P.W. 3-Head Constable Pathan and P.W. 4 P.S. I Dhonnar. The learned Sessions judge has accepted the evidence of the bald prosecution witnesses as reliable and relying on their evidence he found that the prosecution had established that the accused was in possession of the contraband articles. 7. On behalf of the accused, it is contended that the prosecution no doubt has examined panch witness Pujari P.W. 2, but it is clear from his evidence that he is a panch witness who has been used as such in a number of narcotic cases, it is also pointed out that not only that he has been used as a panch witness in the cases, but he has acted as a panch witness in 5-6 cases lodged by Head Constable Kasurde-P.W.1. Now it is true that P.W. 2- Pujari, the panch witness in his deposition admitted that he was summoned as a witness in one another narcotic case about a fortnight before, his evidence was recorded in the present case. He further admitted that he was a panch witness in 5-6 cases lodged by Head Constable Kasurde. Relying on this evidence, it is very strenuously contended on behalf of the accused that this evidence is sufficient to show that the said panch witness is actually a stooge in the hands of the police. It is therefore further contended that when the prosecution relies on the evidence of such panch witness, who cannot be considered as an independent witness, no reliance could be placed on his evidence. It appears that the learned Sessions Judge did not consider the said infirmity as fatal to the prosecution. The learned Sessions Judge, it appears has relied upon the ruling reported in (Abdul Sattar v. State)1, 1989 Cri.L.J. 430. In the said decision it has been observed:--- "It is true that whenever a search is conducted, it is always advisable, as required by section 100(4) of the Cr.P.C., to have two independent and respectable witnesses who are residents of the locality. It is also true that if a case, particularly a case under the Narcotic Drugs Act, is sought to be proved only through police officers and no independent witness is examined, such evidence is to be scrutinized carefully and is, ordinarily, doubtful. However the mere fact that witnesses who are not residents of the locality are taken by a raiding party to witnesses a raid, is not sufficient to vitiate the proceedings. However the mere fact that witnesses who are not residents of the locality are taken by a raiding party to witnesses a raid, is not sufficient to vitiate the proceedings. Similarly, even if no, independent witnesses but only police officers are examined to prove the case that will not by itself constitute fatal infirmity, for that would warrant and require a very cautious end careful, examination of their evidence, but not discarding it summarily on that count." In the said ruling it has been further observed--- "That on the facts the evidence of the panch who was a Home Guard was reliable and it was corroborated on all essential points by other witnesses and there was nothing on record to make doubtful his integrity and independence." Now, therefore, Shri Mundargi, the learned Counsel appearing for the appellant accused, very strenuously contended that the said decision of, this Court relied upon by the learned Sessions Judge in fact does not any down the proposition which would help the prosecution. It was contended that in the said decision also it is said down that the evidence of the panch witness must be of an independent witness and the panch witness must be of man of integrity. He, therefore, contended that in the face of the admissions given by the panch witness when it is clear that the same Head Constable Kasurde who was with the raiding party, had taken him as a panch witness in 5-6 cases, is sufficient to show that he cannot be considered as an independent witness. There is a force in this contention. At any rate, the said admissions clearly show that panch witness Pujari at least could be considered as an amenable witness to the said Head Constable Kasurde who was a member of the raiding party. There is also evidence on record of P.W. 3---Head Constable Pathan who has very clearly stated that it was Head Constable Kasurde who called the two panch witnesses. It is also further clear that even the second panch witness who is not examined in this case, was also a person who had acted as a panch witness. In other cases by Head Constable Kasurde and that at the time when the evidence in that case was recorded he was residing in the same compound where Head Constable Kasurde was residing. In other cases by Head Constable Kasurde and that at the time when the evidence in that case was recorded he was residing in the same compound where Head Constable Kasurde was residing. The learned Additional Public Prosecutor appearing for the State contended that merely because the said panch witnesses who were taken at the time of the raid were taken at panch witnesses in some cases earlier by itself would not be sufficient to discard their evidence totally. Now as far as evidence of panch witness Pujari is concerned, no doubt it must be held that it is not the evidence of an independent witness. He definitely must be stamped as a witness who could be amenable to Head Constable Kasurde, the member of the raiding party and, therefore, no reliance could be placed on his evidence. 8. The learned Additional Public Prosecutor also tried to contend that even if the evidence of the panch witness is discarded, there is sufficient evidence of the police officers who were in the raid and their evidence sufficiently establishes that the appellant accused was found in possession of 69 tablets of charas and they were seized by the police and then were sent to C.A. for analysis and admittedly the C.A. report shows that they were of charas. In this respect it must be stated that once the police who raided the accused had taken the panch witnesses and when one out of the said panch witnesses is examined in Court as a prosecution witness and it is clear from hie evidence that he at least could be held to be a person amenable to a member of the raiding party, it does not lie in the mouth of the prosecution now to contend that discard the evidence of panch witness and rely on the evidence of the police officers only. 9. Apart from this there are several other indications in the present case on the basis of which it could be said that the police party which raided the accused, dealt with the cases in a very casual manner and even did not try to comply with the provisions of various sections of N D. P.S. Act. 9. Apart from this there are several other indications in the present case on the basis of which it could be said that the police party which raided the accused, dealt with the cases in a very casual manner and even did not try to comply with the provisions of various sections of N D. P.S. Act. Section 42 of the said Act provides that if information is received from any person in respect of the offence punishable under Chapter IV of the said Act, the officer who received the said information must take down in writing the said information. Admittedly no such writing was effected. The explanation which is sought to be given by the prosecution end which has been readily accepted by the learned Sessions Judge, is that they had no time to reduce to writing the said information as they had to immediately raid the accused. The said explanation definitely cannot be accepted in view of the fact that it is clear from the evidence of the witnesses on record that after the informant gave the information, Head Constable Kasurde called for the panchas. Necessarily some time must have elapsed between the receipt of the information from informant and the arrival of the panch witnesses. There were several persons including P.S.I, in the raiding party and, therefore, in this period the information which was only that the accused was seiling charas tablets sitting on the parapet wall of the well, definitely could have been reduced to writing. It would have hardly taken a couple of minutes to write the said information. Further it is also clear that there was also non-confidence of section 50 of the N.D. P.S. Act The said section provides that if a search of any person under the provisions of sections 41, 42 or 43 of the said Act is to be taken, the person whose search is to be taken if requires that the search should be taken in the presence of the Gazetted Officer or the Magistrate, he should be taken to such officer or the Magistrate and then only the search should be taken. This provision Implicitly makes it obligatory on the police officer who is in charge of the raid to inform the accused of the said writing and thereafter only if the accused declines to resort to such search in the presence of the Gazetted Officer or the Magistrate, then only he should be searched. In the present case, through the mouth of the police officers who are examined as prosecution witnesses, evidence is tried to be led before the Court that the accused was in formed and asked as to whether he wanted the search to be taken in the presence of a Gazetted Officer or a Magistrate. This evidence led through the mouth of the police officer is clearly an after-thought. It is an attempt made by the prosecution to improve upon its case with a view to fill in the lacunae which were present in the present case. This is obvious because panch witness P.W. 2---Pujari in his deposition also does not make any referred to this fact. Neither in the panchanama nor in the F.I.R. there is a whisper about it. It therefore is clearly a same attempt made by the prosecution though the evidence of the police officer. We have absolutely no doubt that in the present case the accused definitely was not in formed about his right provided under section 50 of the Act. There is also no compliance of section 57 of the said Act. Section 57 provides that whenever any person makes any arrest or seizure under the said Act, he shall, within 48 hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. Admittedly, the P.S.I, who was the main member of the raiding party, did not report about the said arrest or seizure to his immediate official superior. The prosecution, it appears, triad to contend before the learned sections Judge that in the remand memo submitted to the Magistrate seeking the remand of the accused when he was produced before the Magistrate on the next day, the particulars of arrest and the seizure are mentioned and the Magistrate could be considered as an Immediate official superior . The learned Sessions Judge also accepted the said contention and held that there was sufficient compliance of the provisions of section 57. The learned Sessions Judge also accepted the said contention and held that there was sufficient compliance of the provisions of section 57. It is difficult to agree with the view taken by the learned Sessions Judge. The Magistrate definitely could not be considered as the immediate official superior of the P.S.I. In the present case, there is definitely evidence on record that the D.C.P. was the Immediate official superior of the P.S.I. It is clear that this provision definitely made with a view to have a check on the investigating Officer. It is his superior in the department who alone can keep check on the investigating Officer and, therefore, there is absolutely no doubt that by immediate official superior the legislature intended to mean the official superior of the department only. In the present case, therefore, there is no compliance of the said provision also. It appears that the learned Sessions Judge felt that the said provisions in respect of which, as stated earlier, there has bean a breach, are not mandatory and, therefore, even if there is some breach in respect of them, it would not affect the prosecution case. Now without entering into the question as to whether the said provisions are mandatory or not, it must be said that the said provisions definitely have been made with a purpose. The purpose obviously would be to have certain checks on the investigating agency as the offences under Chapter IV of the N.D. P.S. Act are very serious offences and are punishable to the minimum sentence of 10 years and fine of Rs. 1,00,000/-. When there is non-compliance of these provisions. It must be held that at any rate the evidence of the police officer who failed to comply with the said provisions, cannot he relied upon implicitly to base the conviction. Once the evidence of the panch witness P.W 2---Pujari is rejected, the prosecution necessarily has to fall back only on the evidence of the police witnesse. In the circumstances. As stated above, it would be hazardous to accept the evidence of the police witness as trustworthy and hold that the accused was found in possession of the contraband articles. The learned Sessions Judge, therefore, was in error in holding the accused guilty of the offence punishable under section 20(b)(ii) of the N.D. P.S Act. In the circumstances. As stated above, it would be hazardous to accept the evidence of the police witness as trustworthy and hold that the accused was found in possession of the contraband articles. The learned Sessions Judge, therefore, was in error in holding the accused guilty of the offence punishable under section 20(b)(ii) of the N.D. P.S Act. In the result, the conviction of the accused of the offence and the sentence awarded thereunder will have to be set aside. Hence the order. 10. The appeal is allowed, the order of conviction and sentence of the offence punishable under section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 is set aside. The appellant- accused shall be released forthwith if not required in any other case. Fine if recovered be refunded is the appellant. Appeal allowed. -----