JUDGMENT Devinder Gupta, J.—This appeal by accused-appellant is against the judgment dated 29th of June, 1990 of Sessions Judge, Solan convicting him for offence under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as the Act) and sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of rupees one lac and in the event of non-payment of fine, to undergo further rigorous imprisonment for a period of three years. 2. Prosecution case, in brief, is that on 19th of March, 1989, at 5.30 p. m., when PW 6 Gurmit Singh Sub-Inspector, S H. O. Police Station Kasauli was on patrol duty at Barotiwala alongwith Sub-Inspector Mehar Singh, Head constables Ram Kumar and Gurbux Singh and constables Jaswinder and Amrik Singh, a secret information was received by him that accused was dealing in opium and in case his premises are raided and searched, he can be apprehended red-handed. On receiving such information, PW 6 formed a raiding party constituting the aforementioned police officials and also joining with him at Barotiwala Jeet Singh (PW 1) and Darshan Sharma (PW 5). This party when reached near the house of accused situated in village Kotla, they found him standing in his court-yard with one bag on his right shoulder. On noticing them, he tried to run away. It is further the case of the prosecution that the moment accused tried to run away towards forest, he was over-powered and was questioned. Since he was to be searched, therefore, when PW 6 asked him if he wanted to be taken before a Gazetted Officer for being searched, the accused agreed for the search to be conducted by PW 6 on the spot- On being searched, one bag was recovered from the accused inside which opium weighing 1 kg. 20 gms. was found in a polythene envelope. Five gms. out of the same was kept apart by way of sample and the sample as well as the remaining contents were thereafter sealed. It was taken into possession through recovery memo Ex. PB. PW 6 prepared site plan Ex PG and simultaneously sent ruqa Ex. PD on the basis of which FIR Ex PD/l was also registered. Necessary report Ex. PH of the entire proceeding was thereafter forwarded to Deputy Superintendent of Police. On completion of investigation and on receipt of report of Chemical Examiner Ex. PB. PW 6 prepared site plan Ex PG and simultaneously sent ruqa Ex. PD on the basis of which FIR Ex PD/l was also registered. Necessary report Ex. PH of the entire proceeding was thereafter forwarded to Deputy Superintendent of Police. On completion of investigation and on receipt of report of Chemical Examiner Ex. PJ, challan Ext. PK was presented in the Court of Chief Judicial Magistrate, Solan, who committed the accused to the Court of Sessions Judge, Solan, where he was charged and tried for the aforementioned offence. 3. Prosecution examined the aforementioned two witnesses stated to be independent witnesses, namely, Jit Singh (PW 1), Darshan Sharma (PW 5) besides the Investigating Officer Gurmit Singh (PW 6). The accused when questioned under section 313 of the Code of Criminal Procedure denied the charges and claimed that he was neither apprehended, nor any raid as alleged was conducted in his house and also stated that recovery of opium was fake one. According to the accused, he was called to the Police Station where he was made to sign a blank paper. The Sessions Judge finding the requirements of sub-section (1) of section 51 and section 57 having been complied with, held charge to have been duly proved by the prosecution, convicted the accused for the aforementioned offences and sentenced him as above. The accused has preferred this appeal challenging his conviction and sentence. 4. It has been contended that neither there is any compliance to the provisions of sub-section (1) of section 52 and section 57 of the Act, nor provisions of section 100 of the Code of Criminal Procedure have been followed. Non-compliance of these provisions has not only caused material prejudice to the accused but also makes the entire prosecution case doubtful and improbable. It is further contended that PW 1 and PW 5 are neither inhabitants of the locality, nor in the facts and circumstances of the case can be said to be independent witnesses and failure to associate two or more independent and respectable inhabitants of the locality at the time of alleged search also in the peculiar facts and circumstances of the case makes the entire version doubtful. Due to the non-compliance of the provisions of law, it is urged that the conviction and sentence is liable to be quashed and set aside. 5. Due to the non-compliance of the provisions of law, it is urged that the conviction and sentence is liable to be quashed and set aside. 5. On the other hand, learned Counsel for the respondent has urged that there is sufficient compliance with the provisions of sub-section (1) of section 52 and section 57 of the Act as also requirements of sub-section (4) of section 100 of the Code of Criminal Procedure Since despite best efforts, it has not been possible to associate respectable persons of the locality, PW 1 and PW 5 who were otherwise independent and had been associated at Barotiwala, a nearby place, had given the true version and there was no reason to disbelieve them about the genuine search having been conducted by PW 6. 6. We have heard the learned Counsel for the parties and have gone through the records. A Division Bench of this Court in State of Himachal Pradesh v. Sudarshan Kumir and others, 1989 Cr LJ 1412, considering the provisions of the Act relating to procedure contained in Chapter-V thereof has held that right of a person who is about to be searched to be informed by the Designated Officer, to be taken, without un-necessary delay to the nearest Gazetted Officer, is a very valuable right which the Legislature has clothed him with and the same has been incorporated in the Act keeping in view the severity of the sentence and the rational behind this provision is manifest. A search before a Gazetted Officer or a Magistrate would impart much more authenticity and credit-worthiness to the proceedings and would verily strengthen the prosecution. It further held that there is no conceivable reason why a designated officer should shirk from affording a real opportunity to the person concerned to avail of his right, if he so desires. But for it, this valuable right would become illusory and a farce. In fact, the designated officer should, as far as practicable, make the offer in question to the person in the presence of two independent and respectable witnesses of the locality and if he fails to do so, onus would be on prosecution to prove that association of such independent witnesses was not possible in the facts and circumstances of the particular case. In view of this, the Division Bench held compliance of provisions of sub-section (1) of section 52 and section 57 to be mandatory by holding as under: — "While determining whether the above provisions to be followed after the search and arrest are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are, generally speaking, directory. The purpose is to incorporate certain procedural instructions for a strict compliance by public functionaries. Nevertheless, non-compliance of these instructions per se cannot render the acts done as null and void. In other words, it will have to be shown that such non-compliance has caused prejudice and failure of justice, in which case alone the provisions would partake the nature of being mandatory. Judging the provisions in the light of the touchstone indicated above, we have no hesitation, whatsoever, in holding that the provisions which stand incorporated in section 52 (1) and section 57 are mandatory in character." However, compliance of the remaining provisions incorporated in subsection (2) and (3) of section 52 and 55 of the Act was held to be directory. 7. To appreciate the arguments at the Bar, it will be necessary to refer to oral and documentary evidence of search and seizure PW 1 Jit Singh is a resident of village Kasauli which is at a distance of 12 kms from Kotla. He is employee in the Central Research Institute at Kasauli and had gone towards Barotiwala where he met S. H. O. Gurmit Singh, who was known to him for the last about 6/7 years when Inspector Kedar Singh had introduced him with PW 6. According to him, he was jointed in the investigation of the case at Barotiwala as the Police told him that a raid was to be conducted at Kotia to recover opium. According to this witness, Kotla is a thickly populated village having fifty to sixty houses. One or two persons from the village had come to the spot at the time when the search was conducted including Pradhan of Gram Panchayat whose statement was also recorded by the Police. He has given distance between Barotiwala and Kotla as two to three furlongs PW 5 Darshan Sharma is a Taxi owner and Driver at Kalka which is at a distance of more than 40 kms. from Kotla. He has given distance between Barotiwala and Kotla as two to three furlongs PW 5 Darshan Sharma is a Taxi owner and Driver at Kalka which is at a distance of more than 40 kms. from Kotla. According to him, he was standing outside a Tea Stall at Barotiwala after he had parked his vehicle for the purpose of repairs, when PW 6, who was already known to him for the last about 2 years came there. He was asked by PW 6 to join the raiding party which was to go to Kotla to raid the house of the accused. Before he was joined in the raiding party, PW 1 Jit Singh had already joined the raiding party. The raiding party thereafter proceeded towards Kotla where the accused was found standing outside his house in the lawn with a bag hung on his shoulder. On noticing the raiding party, he tried to run but was nabbed and thereafter search was conducted, PW 6 is the Investigating Officer, According to him, as already noticed above, on receipt of secret information, raiding party was formed associating two independent persons and proceeded towards Kotla. When accused was trying to run away, he was over-powered. He was asked as to whether he wanted his search to be carried out before a Gazetted Officer but the accused agreed to give search I before him. This witness has stated that he did not record the ground of I arrest of the accused and the accused was told verbally about his right to have the search conducted in the presence of the Gazetted Officer. He has further stated that there was no time left with him to join any other witness at Barotiwala as these two witnesses alone were immediately available Darshan Singh is stated to have met on the road leading from Nalagarh to Barotiwala whereas Jit Singh also met at the same time Both these witnesses met him per chance. He further stated that since he tried to associate independent witnesses at village Kotla but none was ready to become witness being co-villagers. He was unable to give the names of the persons alleged to have been asked to associate in the search. According to him, he was not anticipating the presence of Jit Singh and Darshan when he started from Kasauli to Barotiwala. He was unable to give the names of the persons alleged to have been asked to associate in the search. According to him, he was not anticipating the presence of Jit Singh and Darshan when he started from Kasauli to Barotiwala. He denied the suggestion that Pradhan of Gram Panchayat, Lamberdar or other persons of village Kotla also came to the spot when accused was apprehended and searched. He has stated that there were three other houses adjacent to the house of the accused where accused was apprehended and search was conducted. Ex. PG is site plan prepared and proved by PW 6. Residential house of the accused is shown by point ‘C’ Towards its west at point ‘D’ and E are shown the houses of Bhagat Ram and Munshi Ram. 7. These three houses are in a row attached to each other. In front of these houses by point A is shown an alley cum road from Barotiwala to Kotla. Across the road to these three houses, is shown by point B the house of one Sarwan Kumar. In between the house of Sarwan Kumar and the three houses aforementioned, the accused is stated to have been apprehended and searched in the alley/ road leading from Barotiwala to Kotla. It is contended on behalf of the respondents that since effort was made for associating two independent respectable witnesses of the locality but it was not possible as the villagers refused to be a witness to search and, as such, joining of Jeet Singh and Darshan at Barotiwala with the raiding party is sufficient compliance of the provisions of sub-section (4) of section 100 of the Code of Criminal Procedure. As observed above, PW 6 was not in a position to name the persons alleged to have been contacted by him who, according to him, refused to become witnesses of search being co-villagers. He has not mentioned as to what efforts were made for collecting two independent witnesses of locality, Village Kotla is a thickly populated village with SO to 60 residential houses. In the month of March at 5.30 p. m. it is not difficult to get hold of persons from a thickly populated village No reason has been assigned as to why the three neighbours whose houses are located within 20 yds. of the house of the accused were not associated. In the month of March at 5.30 p. m. it is not difficult to get hold of persons from a thickly populated village No reason has been assigned as to why the three neighbours whose houses are located within 20 yds. of the house of the accused were not associated. PW 6 has denied the presence of Pradhan and other villagers whereas PW I has stated that Pradhan had come to the spot whose statement was also recorded. PW 1 and PW 5 who are alleged to be independent and respectable witnesses cannot be said to be witnesses from the locality as Jit Singh belongs to Kasauli which is at a distance of 72 kms. and Darshan Kumar is from Kalka more than 50 kms. away from Kotla. Both of them are chance witnesses. Even no effort was made to associate any other person from Barotiwala which is at a distance of about 2 to 3 kms. from village Kotla. Moreover, there is material contradiction in the version of PW 1, PW 5 and PW 6. According to PW 1, when he was associated by the raiding party at Barotiwala, Darshan Kumar (PW 5) was already alongwith the Police but according to Darshan Kumar (PW 5) when he was asked to join the raiding party, Jit Singh was already with the Police Darshan Kumar states that he was standing outside tea shop taking the tea and had parked his vehicle for getting it repaired, whereas, according to PW 6, Darshan Kumar met him on his way from Nalagarh to Barotiwala. Both PW 1 and PW 5 are persons who were already known to PW 6. According to PW 1 the Investigating Officer was already known to him for the last 6/7 years and he was introduced to him by Kedar Singh Inspector. PW 6 has denied this suggestion that he was introduced to PW 1 Jit Singh at Parwanoo by Inspector Kedar Singh. Material contradictions in the version of these three witnesses makes the entire seizure evidenced by document Ex. PB doubtful and must be regarded as such for the reason that the seizure was not made in accordance with the salutary provisions of sub-section (4) of section 100 of the Code of Criminal Procedure. Material contradictions in the version of these three witnesses makes the entire seizure evidenced by document Ex. PB doubtful and must be regarded as such for the reason that the seizure was not made in accordance with the salutary provisions of sub-section (4) of section 100 of the Code of Criminal Procedure. The intendment of sub-section (4) of section i00 of the Code of Criminal Procedure is that two responsible persons of the locality shall be joined in investigation before conducting search in order to create confidence that the recovery had been made in the presence of the inhabitants of the locality. Locality referred to in sub-section (4) of section 100 does not mean as the same quarter or place but is comprehensive enough and includes places within reasonable proximity of the place to be searched or where seizure is made. In the instant case, entire village Kotla can be considered to be locality and not places like Kasauli and Kalka located at a distance of more than 50 kms. away. None of these witnesses belong even to Barotiwala which is at a distance of two to three kms. For these reasons both PW 1 and PW 5 cannot be termed as witnesses from locality- They are mere chance witnesses. In such like cases, burden is always on prosecution to explain circumstances under which it was not possible to comply with the requirements of this provision of law of associating two independent witnesses of the locality. Merely stating that other persons were asked who did not associate without anything else is not enough. Necessity of saddling the prosecution with the burden to justify the breach of the salutary provision of section 100 (4), Cr. P. C. flowed from the constitutional requirement of "reasonable procedure" inscribed in Article 21 of the Constitution which enjoined a positive duty on the Court to carefully and judicially screen the evidence of search and seizure in the light of the relevant legal provisions in a case whereon the evidence of articles seized, the accused was liable to be convicted for any offence. 8. Learned Counsel for respondent by placing reliance upon the judgment of Supreme Court in AIR 1989 Supreme Court 1966, Durand Didier, Appellant v. Chief Secretary, Union Territory of Goa. 8. Learned Counsel for respondent by placing reliance upon the judgment of Supreme Court in AIR 1989 Supreme Court 1966, Durand Didier, Appellant v. Chief Secretary, Union Territory of Goa. Respondent, urged that even if the witnesses were not from locality but from other locality, it may amount only to irregularity not affecting legality of the proceedings. No doubt, non-compliance of the provision of sub-section (4) of section 100 may be an irregularity not affecting the legality of the proceedings but each case will have to be judged on its own merits. In the facts and circumstances of the case, as we have found, the entire proceedings of search and seizure are rightly doubtful in nature. Not only this but what we also find is a non-compliance of provisions of section 57 of the Act of not making full report to his immediate superiors within 48 hours. Though PW 6 has stated that such a report was sent by him within this period but when he was cross-examined, he was not in a position to give either the despatch number or receipt number of the receipt of the report. We have seen the report in the instant case from the record of the Sessions Judge. There is nothing on record to show that such report was sent within 48 hours of the search Even document Ex PA relied upon by prosecution in support of its version that accused was informed of his right to have the search in presence of Gazetted Officer cannot be relied upon. Ex, PA purports to be the statement of accused in which it is stated that he is resident of Kotla and is an agriculturist by profession. He has been arrested by the Police red-handed in dealing with the act of sale and purchase of Opium He was asked by the Police that he is to be searched before Gazetted Officer at Solan but the accused stated that he wanted to give his search before the Police on the spot. The entire reading of Ex. PA also makes the version of the prosecution of the requisite information as provided in sub-section (I) of section 50 as doubtful. Till the accused had been actually searched, there was nothing with the Police to show that the accused had been found red-handed in selling and purchasing of Opium. The entire reading of Ex. PA also makes the version of the prosecution of the requisite information as provided in sub-section (I) of section 50 as doubtful. Till the accused had been actually searched, there was nothing with the Police to show that the accused had been found red-handed in selling and purchasing of Opium. PW 6 even failed to record any reasons about his suspection of the accused dealing with the trade of opium. 9. Since we find in the instant case non-compliance with the provisions of sub-section (1) of section 50,52 and also section 57 of the Act which have been held in Sudarshan Kumars case (supra) to be mandatory in character and which judgment was later on followed in Bansi Lal v. State of H. P. (Criminal Appeal No. 456/88 decided on July 12, 1990, published in 1991 (1) Sim LC 99 and Criminal Appeal Mo. 239/81, Jawahar Lal v. State of H. P., decided on 15-3-i991, and non-compliance of sub-section (4) of section 100 of the Code of Criminal Procedure, we hold that the conviction recorded against the accused cannot be sustained in law. 10. In view of the above, we accept the appeal, set-aside the impugned judgment of conviction and sentence and direct the accused-appellant to be released forthwith unless he is required in connection with commission of any other case. The case property shall be disposed of in accordance with law. Order accordingly.