JUDGMENT 1. - This is an appeal against the judgment of the Sessions Judge, Jhalawar in Sess. case No. 70/90 whereby each of the appellants, namely, Rashid, Laxminarain and Madhosingh, has been convicted under Section 8/18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act') and sentenced to undergo 10 years' R.I. with a fine of Rs. one lac (in default of payment of fine, further one year's R.I.). 2. The facts leading to this appeal are thus. A secret information is said to have been received by the Narcotics Department, Kota. On the basis of which, a raiding party consisting of V.P.Saxena SI, Bhisham Dev SI, Parmanand Meena SI in addition to sepoys namely, Arjun Lai, Badrilal, Chhotu Singh, Amarlal, after necessary orders from the Superintendent, Control Room Kota, departed from Kota on 12.10.1989 and reached valley of Doongar village. According to the complaint-cum-report, on 13.10.1989, at about 17.30 hours three persons having raxine sacks in their hands were descending at the road slope of the valley from Doongar village, and they were instructed to stop then and there but they tried to flee away so, immediately sub-inspectors, namely Saxena and Meena, chasing them caught hold of but, in between that one person fled away throwing rexine sack from his hand. The caught hold persons were interrogated by Bhishamdev and then they gave out name of person who fled away, as Laxminarain, whereas person who was caught hold of by Sub-Inspector, Saxena, disclosed his name as Madho Singh while other person who was caught hold of by Sub-Inspector Parmanand Meena, gave out his name as Rashid Khan. 3. It had also been alleged in the report that since at the spot, no other person was found, so, sepoys namely, Arjunlal and Amarlal were choosen as witnesses to the scene at the place of incident; and that, before making search, Bhisham Dev asked Madho Singh and Rasheed Khan as to whether they would like to make search of them before Magistrate or gazetted officer, but to which, they responded that they may be searched in the presence of the witnesses. Thereafter, the raxine sacks in the hands of Madho Singh and Rashid Khan and thrown by Laxminarain while fleeing away from the scene of occurence, were searched out and its memo was prepared through Badrilal Meena, and then it was found that three of the rexine sacks contained black substances like opiums. The contraband opium recovered was got weighed through Chhotu.Singh Sepoy.The following weights were found of the recovered rexine sacks containing contraband opium- Rexine sack of Weight including sack. Weight of opium contained in the sack. Madho Singh's 6 kilos 300 gms. 6 kilo 200 gms. Rashid Khan 5 kilos 150 gms. 5 kilo 50 gms. Laxmi Narain 3 kilos 50 gms. 2 kilo 950 gms. 25 gms of opium each in two samples were taken out of each of the recovered and seized rexine sacks for chemical analysis and the samples were filled in blank packets of cigarette and then wrapped with papers and sealed them. The balance opiums containing in each of the rexine sacks were sealed after wrapping in a cloth and stitching its. The proceedings of recovery, seizure and sealing the contraband articles are said to have been completed at the place of incident where inquest and other momos were also prepared in the presence of the witnesses and the seizure officers. Madho Singh and Rashid Khan were arrested at the some of occurrence for the offence of possession and transportation of contraband opiums, punishable under Section 8/18 of the NDPS Act.Thereafter on 13.10.1989 at about 21.30 hours Bhishamdev submitted his report alongwith seized, sealed and recovered contraband opiums, before the District Opium Officer Jhalawar in Khanpur. The District Opium Officer Jhalawar took all the articles presented by Bhisham Dev alongwith his report into custody, and got the case registered in their record as numbered 2/89 on 13.10.1989 and the complainant, Mahesh Kumar was appointed to investigate into the matter. 4. The 'investigating commenced. During investigation, Parmanand, Sub Inspector gave out that he knew the person who fled away from the spot and he was Laxminarain inasmuch as was known very well to him (Parmanand) since before. Other officials of the department gave out that upon identification they would be a position to identify Laxminarain. 4. The 'investigating commenced. During investigation, Parmanand, Sub Inspector gave out that he knew the person who fled away from the spot and he was Laxminarain inasmuch as was known very well to him (Parmanand) since before. Other officials of the department gave out that upon identification they would be a position to identify Laxminarain. On 17.11.1989, the investigating Officer, Mahesh Kumar after obtaining three samples of opium in sealed condition, from District Opium Officer, Jhalawar, sent the samples through/per messanger, Jahin Ahmed Sepoy, to the Govt. Opium and Alkaloid Works, Neemuch (M.P.). But, since the samples are alleged to have been lacking of some formalities of sealing etc., therefore,they were returned back to the investigating officer. It is alleged that thereafter, on 25.11.1989, the samples were again re-sealed and then on the very day, were sent through Babulal Tailor for analysis purpose to the Neemuch works. 5. As per chemical examination report, the samples sent for chemical analysis contained the following consistence and % morphine- Sample seized from Consistence % Morphine 1. Madho Singh 76.00° 11.76% 2. Rasheed Khan 73.25° 14.96% 3. Laxminarain (absconded) 78.25° 11.76% According to the chemical examiner, each of the three samples is found by qualitative and quantitative analysis to be opium within the meaning of section 2(xv) of Narcotics Drugs and Psychotropic Substances Act, 1985. 6. After usual investigation, a complaint was filed in the Court of Judicial Magistrate, Jhalawar who committed the case for trial to the court of Sessions. The appellants were charged under Section 8/18 of the Act. They denied to the charge and pleaded not guilty and then claimed trial. 7. The prosecution examined 11 witnesses in support of the charge. The appellants were examined under Section 313, Cr. P.C. In their explanation, appellants, Rasheed Khan and Madho Singh deposed that the officials of the opium department were hand in gloves with Radhey Shyam and. Nihal Singh who were left free of accused. Laxminarain stated that he was not present at the spot. Their defence was that the witnesses are all departmental employees and they bore grudge against them and on account of animosity, they have falsely been implicated. 8. After hearing both the parties, the appellants were convicted and sentenced as indicated above. Hence this appeal. 9. Laxminarain stated that he was not present at the spot. Their defence was that the witnesses are all departmental employees and they bore grudge against them and on account of animosity, they have falsely been implicated. 8. After hearing both the parties, the appellants were convicted and sentenced as indicated above. Hence this appeal. 9. Learned counsel for the appellants contended that there are incongruities and infirmities which go to the root of the case and which casts doubt on the varacity of the prosecution case, in respect of material particules, viz. that, weights and weighing scales were fetched either from Kota while proceeding on raiding or from either from other place; that the recovery of the contraband articles is tainted with and was made in the presence of no independent witnesses, and that the seal with which the contraband articles were sealed, was not found intact while it was received by the chemical examiners for analysis purpose and in this manner, the sealing and packing of the recovered articles were tempered with.Significant point urged by the learned counsel for the appellants is that there is non-compliance of the provisions contained in Section 42, 43, 50, 52 and 55 of the Act and thereby the defence of the accused-appellants has been jeopradised and the trial has vitiated, warranting interference in the impugned conviction. 10. The learned Public Prosecutor has merely supported the findings arrived at by the learned trial court by contending that the prosecution has added reliable evidence consisting of no infirmities inasmuch as the infirmities pointed out by the learned counsel for the appellants are not sufficient to alter the conviction into acquittal as no prejudiceness is pointed out to have caused to the accused-appellants by those alleged infirmities. 11. 11. Having considered the rival contentions of the parties and perused the material on record, I am of the opinion that it is a case where all the witnesses produced in witness box are officials of the Narcotic Department, inasmuch as the attesting and motbir witnesses are also officials of the department and, in this state of thing, they cannot be straight way said to be independent witnesses as no independent witness has been produced in the witness box so as to corroborate or support the V r. version given by the officials-witnesses as to the compliance with mandatory provisions of the Act, in respect of the seizure, recovery and sealing of the contraband articles etc. 12. As to the fetching of weighing scale and weights two versions have come out in the evidence of the prosecution. Arjun Lal (PW2), Sepoy of Narcotics Department, in cross-examination admitted that the weighing scale or balance with weights were not taken by the raiding party from Kota, rather they were fetched by sending Chhotu Singh, Sepoy as directed/instructed by the Inspector, Amarlal (PW3) and Chhotu Singh (PW4) on the other hand stated that the weighing balance was not sent for rather they brought it with them. It is a material contradictions. This creates doubt as to the recovery of opium. 13. Different versions have come out in the evidence of the prosecution as to the distance of Dungar village from the place of seizure. Site plan (Ex.P. 14) shows that Dungar village was away at a distance of half a kilometer. Arjunlal (PW 2) is one of the attesting/panch witnesses of the site plan, but he in his cross-examination admitted that the Doongar village was at a distance of 3-4 Kms. Amarlal is also one of the panch witnesses to the site plan but he also admitted in his cross-examination that the village Doongar was at a distance of only half a furlong from the place of seizure in question. Badrilal Meena (.PW 6) who was also accompanying the raiding party, however, in his cross-examination pleaded ignorance as to the distance of village Doongar. Vishnu Prasad Saxena (PW 8) has also signed at the site plan but, he in his cross-examination stated that he did not know as to at what distance, the village Doongar was away from the place of the impugned seizure. Vishnu Prasad Saxena (PW 8) has also signed at the site plan but, he in his cross-examination stated that he did not know as to at what distance, the village Doongar was away from the place of the impugned seizure. Parmanand (PW 7) states that the distance was of half a kilometer from the place.of seizure from the village Doongar. 14. According to the versions given out in the first information report (Ex. P. 1) and the Panchnama (Ex. P. 11), when three persons were warned to stop themselves, they tried to flee away but were chased and two of them were caught hold of by V.P. Saxena and Parmanand Meena but third one succeeded to flee away by throwing the sack which was in his hand, and thereafter upon interrogation the caught hold of persons gave out their names as Madho Singh and Rasheed Khan respectively, and the name of fled away person was given out as Laxminarain. However, before the trial court, when the prosecution witnesses including afore two named persons (witnesses) were examined, they have come out with a version that the person who fled away from the spot by throwing the sack of contraband opium was Laxmi Narain and was very well known to Parmanand (PW 7). This shows that the witness has exaggerated the version in whole hog to support the prosecution case. Parmanand (PW7) in his examination in-chief admitted that he did very well know Laxminarain by face and name since before the impugned incident. In cross-examination, he failed to explain as to why did he not state or give out such a thing to Bhishamdeo when Panchnama or report or any other memos were being prepared. Then he only answered that it is not known why such a version was not noted down in the memos though he had given out so at that time. In this regard, other witnesses who were accompanying the raiding party or who are the panch witnesses/attesting ones, have also not given corroboratory version. 15. Then he only answered that it is not known why such a version was not noted down in the memos though he had given out so at that time. In this regard, other witnesses who were accompanying the raiding party or who are the panch witnesses/attesting ones, have also not given corroboratory version. 15. On the one hand, Amarlal (PW 3), Chhotu Singh (PW 4), Badrilal (PW 6) V.P. Saxena (PW 8) and Bhisham Dev (PW 9) admitted that except the present accused, no other person or motor vehicle was searched at the place of impugned seizure, whereas other witnesses who are also panch witnesses and were accompanying the raiding party as members of the party, admitted that other vehicles and persons were also searched not only in between the way but also at the place of the impugned seizure. 16. Arjunlal (PW 2) admitted in cross-examination that at the place of impugned recovery, the buses and trucks were passing through one by one at ,a few of the intervals, and the raiding party was checking those vehicles also after stopping them at the place of incident. Parmanand (PW 7) in his cross-examination admitted that in the way from Kota to Dungargaon, the vehicles were stopped for checking but, pleaded ignorance to the question as to how much vehicles were checked at the place of incident. V.P. Saxena (PW 8) clearly deposed in cross-examination that they had not checked any other vehicles except the impugned search right from their departure from Kota to the place of impugned incident; in as much as no vehicle or person was searched or checked at the place of the impugned incident. 17. Arjunlal (PW 2) in his cross-examination admitted that the search of the accused was taken by Badrilal Sepoy and not by their Inspector Sahib. Amarlal (PW 3) admitted that he and his other co-members of the raiding party and Inspector Saxena Sahib had not given their search to any other person called by them. In examination-in-chief Amarlal (PW 3) stated that the sacks were got searched through Chhotu Singh. Chhotu Singh in cross-examination deposed that the accused were not searched by him and he does not state in his examination-in-chief that the sacks were got searched through him. In examination-in-chief Amarlal (PW 3) stated that the sacks were got searched through Chhotu Singh. Chhotu Singh in cross-examination deposed that the accused were not searched by him and he does not state in his examination-in-chief that the sacks were got searched through him. According to him as has been given out by him in cross-examination, from Kota they straight forward went to the place of impugned incident, and in between the way, no checking was done of any person or vehicle, inasmuch as no checking was done at the place of impugned incident. He admitted further that when the opium was seized and its memo was prepared, sample of seal was affixed at that memo but it is correct that Ex.P. 11 contained no such sample of seal. 18. Parmanand deposed that the sacks were got searched through Badrilal but he does not state as to from whom they got weighed the weight of sacks containing the alleged opium. Bhishamdev (PW 9) deposed that the accused were got searched through Badrilal Sepoy. But, from a careful perusal the statement of Badrilal Sepoy, I find that he does not state that the accused or the sacks of contraband-opium were got searched through him. 19. I may observe that it is a case where no doubt it must be held that the statements of the witnesses who were stamped as panch witnesses to the memos of seizure etc. are departmental personnel and their evidence is not one of an independent witness. They definitely must be stamped as a witness who could be amenable to their superior officers-sub-inspectors or inspectors who are said to have laid the trap of impugned seizure. Therefore, no reliance could be placed on their evidence on any of the particulars. Thus, once the Narcotics department officers personnel who raided the accused had taken the panch witnesses and when out of the said panch witnesses is examined in court as a prosecution witness and it is clear from the evidence that they atleast 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 to contend that to discard the evidence of panch witness and rely on the evidence of the department personnel only who raided the accused. 20. Let me turn over to other significant aspect of the matter. 20. Let me turn over to other significant aspect of the matter. There are several other indications in the present case on the basis of which it could be said that the raiding party which raided the accused, dealt with the case in a very rough manner and even did not try to comply with the provisions of various sections of the Act. According to Section 42 of the Act, if an information is received from any person in respect of the offence punishable under Chapter IV of the Act, the officer who received the information must take down in writing the said information. Admittedly, no such writing was effected. There is no explanation forthcoming rather in answer to the question to the required explanation, no proper explanation was given, inasmuch as from the material on record it is clear that such an information was received a few days before the raid was laid. But that apart, nothing was reduced in writing nor any such writing has been produced in evidence on record, nor such a writing was shown during the recording of the evidence and putting question at the time of the cross-examination. 21. Arrest memoes (Ex. P. 12 and P. 13) of Madho Singh and Raseed Khan show that there is cutting at portions E to F and G to H respectively upon careful loot at portion E to F I find that it bears signature of Madho Singh in Ex. P. 13 (arrest memo of Rashid Khan) and similarly at G to H in Ex.P. 12 (arrest memo of Madho Singh), it bears writing/signature of Rasheed Khan and these writings of signatures were afterwards crossed with linings. This makes it clear that on blank papers, the signatures were taken and subsequently, the memoes were prepared. It is a fatal to the prosecution. 22. There was also non-compliance of Section 50 of the Act. Section 50 contemplates that if a search of any person under the provisions of Sections 41, 42 or 43 of the 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 obligation on the raiding/seizuring officer who is incharge 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 each and every member of the raiding party, the evidence is tried to be led before the court that the accused was informed and asked as to whether they wanted the search to be taken in the presence of a gazetted officer or a Magistrate. Their evidence is like a parrot version right from the F.I.R. till the recording of the evidence before the court. It is, therefore, clearly a lame attempt made by the prosecution through the evidence of the officials accompanying raiding party. I have no doubt that in the present case the accused were definitely not informed about their right provided under Section 50 of the Act. 23. It must be mentioned here that in the absence of any public witness being joined, the statements of the department personnel are required to be scrutinised with due care and caution in order to see whether the offence is brought home to the appellant/accused beyond reasonable doubts. I have noted down the discrepancies, indicated above. These discrepancies would not have appeared in the statements of the above witnesses only on account of lacunae and lapses. The appellants had no other way to show that a false case has been foisted on him inasmuch as they have come out with specific defence in their explanation under Section 313 Cr.P.C. that in fact Nihal Singh and Radhey Shyam were got raided but they were scot free after hand in gloves with them, and they have been falsely implicated out of sheer enmity with those named persons. They had no option but to show that the Narcotics officials are not telling the truth when they are making such discrepant statements on material aspects of the case. The material aspects of the case were such as to how the secret information was received and raiding party was formed and what efforts were made to join the public witnesses and in what manner the proceedings were carried out at the spot. On all these aspects discrepant statements had come from the statements of these important witnesses. The material aspects of the case were such as to how the secret information was received and raiding party was formed and what efforts were made to join the public witnesses and in what manner the proceedings were carried out at the spot. On all these aspects discrepant statements had come from the statements of these important witnesses. Therefore, I do not agree with the view expressed by the trial court that all these discrepancies do not go to the root of the matter in the present case. 24. Parmanand (PW 7) in cross-examination specifically admitted that the officer-in-charge of their raiding party was Shri Bhagwan Das. But none of other prosecution witnesses stated so, nor Bhagwan Das has appeared in the witness box. All the prosecution witnesses are said to be members of the raiding party, but curiously enough, it is surprise that the members of the raiding party were having no knowledge as to whether the weighing balance and weights were with them or not. Most and few of the prosecution witnesses clarly admitted in their deposition that many a vehicles and persons were passing through there and even some of them have gone to the extent saying that some and few of the vehicles and the persons were stopped and checked. But then, it is surprised why no efforts were made to join the public witnesses. 25. From the discussion of the evidence, supra, it is clear that the search was taken by Badrilal or Chhotu Singh either of the accused or the sacks of the contraband opium. Admittedly, Badrilal and Chhotu Singh both are sepoys and of constable rank, inasmuch as the officials of the rank of sub-inspectors and inspectors were accompanying the raiding party, then it is surprised why the search was got taken/made by the sepoys, in breach of Sections 41 and 42 of the Act. All the accompanying witnesses of the raiding party state merely that the opium was seized and sealed but none of them stated as to which of the seal was put to the memoes or the recovered/seized contraband articles and its containers/sacks. 26. There is also non-compliance of Section 57 of the Act. All the accompanying witnesses of the raiding party state merely that the opium was seized and sealed but none of them stated as to which of the seal was put to the memoes or the recovered/seized contraband articles and its containers/sacks. 26. There is also non-compliance of Section 57 of the Act. Section 57 contemplates that whenever any person makes any arrest or seizure under the 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 raiding party consisted of two officers of the Inspector and was constituted under the direction of the Superintendent Incharge at Kota. Thus, the immediate superior officer of the raiding party was either Bhagwan Das or the Superintendent Incharge, Narcotics Department, Kota. There is no evidence on record to show that any full report of all the particulars of impugned arrest or seizure was made to the aforesaid immediate superior officers by the personnel of the raiding party. PW 1 cannot be said to be immediate superior officer. Therefore, in the present case, there is no compliance of Section 57 of the Act. 27. I am clearly of the view that is being adopted from the observations made in Usman Haridarkhan. v. State of Maharashtra, 1991 Cr.LJ. p. 232 that where officers had failed to comply with provisions contained in S. 50 and 57 of the Act, their evidence cannot be implicitly relied on to base conviction. 28. Further from Ex.P. 4 it is clear that for the first time, on 20.11.1989, the samples were allegedly received by the Chemical Examiner though the articles were allegedly recovered on 13.10.1989. There is no explanation for the delayed dispatching the samples for analysis purpose to the Chemical examiner. Moreover, from Ex.P. 4 it is also clear that the Chemical examiner sent back the samples to the District Opium Officer, Jhalawar with the remark that quantity seized, sample drawn from each seized stuff may please be indicated on the test memo clearly, as indicated in Zapti chit with special marking on each packet and on the test memo. Thus, it is obvious that the samples-were not with proper seal marking on each packet and the test memo. Thus, it is obvious that the samples-were not with proper seal marking on each packet and the test memo. After receipt of Ex.P. 4, again the packets of the samples were got sealed and then sent to the Chemical examiner for analysis purpose vide Ex.P. 5. Such a lapse is admitted by the prosecution witnesses in their statements before the court. Thus, there is no evidence that the seal remained intact on the samples and that apart, there is no entry of specimen seal in the malkhana register as affixed on the samples. The prosecution evidence as regards the sealing of the contraband opium recovered on the spot itself is not true or that there was a tampering with the packets of the samples sealed at the time of the search before it was sent to the chemical examiner. The prosecution has not explained this discrepancy and therefore, a doubt arises as to whether the samples packets received by the chemical examiner are or not the same packets of the samples allegedly recovered from the appellant at the time of the raid. That being so, the link between the alleged recovery. of the contraband opium from the person of the appellants and the packets of the samples sent to the chemical examiner has not been established with the result the prosecution has failed to prove that the appellants were found in possession of the contraband opium. So, it is also the case of non-compliance of Section 55 of the Act. This failure of the prosecution is fatal as it touches the essential ingredients of an offence punishable under the Act. 29. All these facts lead me to hold that the prosecution had failed to bring home the offence to the appellants and there appers a lingering doubt about the truthfulness of the story of the prosecution. I have lent support from the decisions reported in 1988(2) RLR p. 322; 1990 Cr.L.J. 2521; 1990(2) Crimes, 246; 1989(2) RLR 125 ; and 1990 Raj. Cr. Cases 268. 30. For the foregoing reasons supra, I allow this appeal, set aside the conviction and sentences of the appellants and I acquit them of the charge. The appellants who are in jail, be set at liberty forthwith if not required in any other case, and who are on bail, need not surrender to their bail bonds.Appeal Allowed. *******