Judgment : 1. Theaccused in S.C.No.111 of 1986 on the file of the Court of the learned 4th Additional Sessions Judge, Madras is the appellant. He was charged for an offence punishable under Sec 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for having been found in possession of opium (Heroin), convicted and sentenced to undergo rigorous imprisonment for a period of ten years and also to pay a fine of Rs. 1,00,000 in default to undergo rigorous imprisonment for a further period of two and a half years. 2. The prosecution has examined P.Ws.1 to 3 and marked Exs.P-1 to P-6 and material objects 1 to 8. Nowitness and documents were let in by the defence. 3. The case of the prosecution is that the accused was found in possession of three poleythene packets each containing 500 gms., 250 gms., and 250 gms., respectively in all one kilo of Opium (Heroin) on 8.8.1986 at 6.30 P.M. at the bus stop in Moolakadai, Waltax Road, Madras. P.W.1 Ravindran is a resident of Thondiarpet Madias and he was doing business in cut piece cloths. According to him, he knew the accused. While he was waiting for the bus near the bus stand at Waltax Road, P.W.1 noticed a crowd of people and P.W.1 went there to see as to what was going on there. At that time, he noticed the accused carrying a khaki bag containing some materials inside. In the crowd, one of the persons introduced himself as the Sub Inspector of Police Narcotics Intelligence Bureau and that person asked P.W.1 to be a witness at the time when he would be examining the accused. At that time, one Natara-jan was by his side who was also requested to be a witness. The officer opened to khaki bag and found three poleythene packets inside the papier packet and he seized the khaki bag and the three packets containing black substances. The Sub Inspector of Police prepared a mahazar m which P.W.1 and Natarajan were asked to attest. M.O.2 and 3 are the small packets and M.O.1 is the big packet. M.O.4 is the khaki bag and M.O.5 is the old’ Hindi newspapers with which the three packets were covered. Ex.P-1 is.the mahazar. The Sub Inspector of Police prepared a mahazar m which P.W.1 and Natarajan were asked to attest. M.O.2 and 3 are the small packets and M.O.1 is the big packet. M.O.4 is the khaki bag and M.O.5 is the old’ Hindi newspapers with which the three packets were covered. Ex.P-1 is.the mahazar. P.W.1 admitted that he did not know the contents written in Ex.P-1 by the Sub Inspector of Police P.W.1 admitted that he did not ask the Sub Inspector of Police as to what was written in Ex.P-1. 4. P. W.2 K.Natarajan is the Cashier in the court of the III Metropolitan Magistrate, G.T. Madras. His evidence is that he received the contents written in Form 95 on 9.8.1986 which were handed over to the court of 8th Metropolitan Magistrate, Madras. M.Os.1 to 5 are the items written in Form 95 and there were three packets containing 500 gms. 250 gms. and 250 gms. From each of the packets, he took out 100 gm. as per Ex.P-2 requisition given by the Sub Inspector of Police for sending them to the Chemical Examiner. Ex.P-3 is the requisition sent by the court to the Chemical Examiner. Ex.P-4 is the report given by the Analysis. M.Os.6,7 and 8 are the remaining sample and they were sent to the District Collector for custody as per Ex.P-5. 5. P.W.3 Navaneethakrishnan is the Sub Inspector of Police, Narcotic Intelligence Bureau. On the instructions given by the Deputy Superintendent of Police, P.W.3 went with the police party to the bus stand at Moolakadai, Waltax Road, Madras at 6.30 P.M. on 8.8.1986. On the information given by his informant about the accused, P.W.3 questioned the accused and the accused told his name as Om Prakash Gupta. P.W.1 asked him about the Khaki bag kept by him and in the presence of P.W.1 and Natarajan, P.W.3 examined the bagand found a packet covered with old Hindi newspaper and on further removing the cover, he found three packets within the same. The big packet contained half kilo and the small two packets contained each 1/4 kilo of opium (abin). P.W.3 seized the packets and also the bag under a mahazar Ex.P-17. P.W.1 and Natarajan attested. They are M.Os.1 to 5. P.W.3 examined the witnesses also on the spot the recorded their statements. The big packet contained half kilo and the small two packets contained each 1/4 kilo of opium (abin). P.W.3 seized the packets and also the bag under a mahazar Ex.P-17. P.W.1 and Natarajan attested. They are M.Os.1 to 5. P.W.3 examined the witnesses also on the spot the recorded their statements. Then he went to his office and registered a case in Cr.No.NIN.67 of 1986 under Sec. 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Ex.P-6 is the F.I.R. Since it was night, P.W.3 remanded the accused in Kotturpuram Police Station. On the next day i.e., on 9.8.1986 P.W3 sent the material objects and also the accused to the 16th Metropolitan Magistrate with a requisition for sending the material objects for chemical examination. Ex.P-2 is the requisition. Then, after examining P.Ws.1 and 2 he filed the charge sheet on 12.9.1986. 6. The accused when questioned under Sec.313, Crl.P.C, denied the occurrence and pleaded not guilty. On the above oral and documentary evidence, the learned Sessions Judge found the accused guilty of the offence with which he was charged, convicted and sentenced him as aforementioned. The appellant has challenged the legality of the judgment of the lower court in this appeal. 7. Learned counsel for the appellant has raised several contentions in his memorandum of appeal. Learned counsel for the appellant contended that the provisions of Secs.42, 50, 55 and 57 of the abovesaid Act have not been followed in this case meticulously and therefore, the conviction and sentence cannot be sustained. Further he contended that the prosecution has not proved its case beyond reasonable doubt. P.W.1 is only a casual witness and his evidence is that he had no place of his own for doing his cut piece business. According to him he was doing business only on cycle. He is only a street hawker. Learned counsel for the appellant contended that P.W.1 had no residence at all at Madras and he was at the mercy of the police for doing his business and he is a native of Vadagarai at Calicut. According to him he was doing business only on cycle. He is only a street hawker. Learned counsel for the appellant contended that P.W.1 had no residence at all at Madras and he was at the mercy of the police for doing his business and he is a native of Vadagarai at Calicut. According to the learned counsel for the appellant, this witness had no business to go to the bus stand to witness the alleged occurrence on 8.8.1986 at about 6.30 p.m. From the fact that he did not ask P.W.3 as to what he had written in Ex.P-1, it is clear that this witness had no interest at all in knowing the contents of Ex.P-1 and he is an obliging witness to the police. Therefore, I am unable to accept his evidence. P.W.2 is only a court staff and he knows nothing about the prosecution case excepting receiving and sending the material objects; to the Chemical Examiner for analysis. Therefore, the only evidence available is that of P.W.3 who is the Sub Inspector of Police. Unfortunately, P.W.3 had not at all followed any of the provisions of Secs.42, 48, 50, 52, 55 and 57 of the Act. Sec.50 and 57 which are mandatory, read as follows: - “50. Condition under which search of persons shall be conducted: (1) when any officer duly authorised under Sec.42 is about search any person under the provisions of Sec.41, Sec.42 or Sec.43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Sec.42 or to the nearest Magistrate. 2. If such requisition is made, the Officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in Sub-sec(1). 3. The Gazetted Officer or the Magistrate before whom any such person is brought shall if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. 4. No female shall be searched by anyone excepting a female.” “57. Report of arrest and seizure: Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure makes a full report of the particulars of such arrest or seizure to his immediate official superior.” 8. 4. No female shall be searched by anyone excepting a female.” “57. Report of arrest and seizure: Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure makes a full report of the particulars of such arrest or seizure to his immediate official superior.” 8. It is also contended by the learned counsel for the appellant that among all the persons standing in the bus stand P.W.3 has been picked up to be an attestor. The other attestor, namely, Natarajan, was not examined. Possibly, that Natarajan might not have obliged to be a false witness in this case. Therefore, the prosecution has examined P.W.1 alone as an attesting witness, as contended by the learned counsel for the appellant. P.W.3 has not stated in his evidence that he has complied with the provisions of Secs.42, 48, 50, 52, 55 and 57 of the Act. The provisions of the said Act referred to above are very stringent and they are all mandatory. The Parliament in its wisdom has made the above provisions to safeguard the interest of both the accused and also the prosecution. The accused who has been sentenced to a minimum sentence of 10 years rigorous imprisonment and a fine of Rs. 1,00,000 has to be given all the safeguards before he is convicted and similarly, the prosecution which is dealing with such matters seriously affecting the freedom and independence of a citizen, has to comply with the provisions of the Act strictly in order to enable the court to take a correct decision. P.W.3 is the Sub Inspector of Police and he was entrusted with this case. P.W.3 has not at all followed any of the provisions of the Act. Learned Public Prosecutor who conducted the case in the lower court has not at all adverted to any of the provisions of the Act. Therefore, I am unable to accept the evidence of P.Ws.1 to 3. 9. In the decision reported in Usman Haidarkhan Shaikh v. State of Maharashtra Usman Haidarkhan Shaikh v. State of Maharashtra, 1991 Crl.L.J. 232a Division Bench of Bombay High Court held that if the provisions of Secs.42, 50 and 57 of the act are not complied with, the evidence of the Police Officer who failed to comply with the provisions cannot be implicitly relied on to base conviction. In this case, as seen above, the investigating officer P.W.3 has not complied with the provisions of the abovesaid Act. I am unable to accept his evidence. There is no independent evidence to support the case of the prosecution. The provisions of the Act referred to above have been completely ignored by the prosecution. I have also held in my judgment in Crl.A.No.534 of 1989 of the same date that the provisions of the abovesaid Act are mandatory and they have to be strictly followed by the prosecution and any violation of the provisions of the abovesaid Act cannot be countenanced. Therefore, the findings of the lower court are reversed and that conviction and sentence imposed on the accused/appellant is set aside, and the accused is acquitted. The appeal is allowed. The fine amount, if paid is directed to be refunded to the appellant.