Honble JAIN, J.—This criminal appeal is directed against the judgment of learned Sessions Judge, Balotra dt. 1.2.1992 whereby he has convicted the appellant u/s. 17 read with S. 18 of the N.D.P.S. Act, 1985 and sentenced him to 10 years R.I. with a fine of Rs. one Lac on each count and in default of payment of fine to further undergo 2- years R.I. (2) The prosecution case in brief is that at 7.30 P.M. on 29.4.1991 on receiving a secret information, P.W.9 Talish Hussain Khanna, Dy. Superintendent of Police, Balotra accompanied by P.W.10 Bhanwar Singh, S.H.O. with other personnels viz. PW. 3 Hamsha Khan, P.W. 4 Mula Ram, Chutra Ram and Narsingh reached P,S. Mandali, where P.W. 10 Bhanwar Singh and some other police officers joined them and thereafter they reached village Kalau situated at border and sealed the border but could not recover any goods. It is alleged, on 30.4.1991 at 5.30 A.M. when the police party was patrolling the border, the Dy. S.P. got an information that one Bala Ram, s/o Kirpa Ram is dealing in opium illegally, they reached at Dhani of Bala Ram at 6.30 A.M. and recovered a polythene bag full of catechu substance weighing 1 Kg. which on smelling was found to be opium. In the presence of two motbirs a sample of 30 gms. of milk of opium was sealed separately and rest of milk weighing 970 gms. was sealed in another packet. On search of Jhumpa of Kitchen of the accused opium weighing 4 kg. was also recovered from a Urea bag. A sample of 30 gms. was taken and sealed and rest of opium was sealed in a different packet. Recoverymemo Ex.P.l and Site Plan were prepared by the Dy. Superintendent of Police. The accused-appellant was arrested on 30.4.1991 vide Ex.P.3. On the basis of recovery, a report Ex.P.9 was prepared by the Dy. S.P. on the basis of which S.H.O. Bhanwar Singh lodged an F.I.R. Ex.P. 10 u/ss. 17 and 18 of the N.D.P.S. Act. Dy. S.P. and S.H.O. Mandali Bhanwar Singh conducted investigation. A copy of Jamabandi Ex.P. 24 and map Ex. P. 25 were obtained from P.W. 11 Durgaram Patwari. After due investigation, a challan was filed against the accused u/ss. 17 and 18 and the charges were framed accordingly under the aforesaid sections. 17 and 18 of the N.D.P.S. Act. Dy. S.P. and S.H.O. Mandali Bhanwar Singh conducted investigation. A copy of Jamabandi Ex.P. 24 and map Ex. P. 25 were obtained from P.W. 11 Durgaram Patwari. After due investigation, a challan was filed against the accused u/ss. 17 and 18 and the charges were framed accordingly under the aforesaid sections. The prosecution in support of its case examined P.W.I Girdhari Singh, P.W.2 Ganpat Singh, P.W.3 Hamshkhan, P.W.4 Mularam, P:W.5 Shyamlal, P.W.6 Mehta Ram, P.W.7 Chunnilal, P.W.8 Kana Ram, P.W.9 Talish Hussain, P.W.10 Bhanwar Singh, S.H.O. and P.W. 11 Durga Ram Patwari. The accused-appellant in his statement u/s. 313 Cr.P.C. denied recovery of opium from his possession, and stated that he went to call his sister and brother-in-law at Dhani of his father which is situated at a distance of 2-3 kms. from his village Kalau Sasan where he resides and has been falsely implicated. The accused-appellant did not produce any witness in his defence. The learned Sessions Judge after considering the material on record and concluding the trial convicted the accused u/ss. 17 and 18 of the N.D.P.S. Act and sentenced him to 10 years R.I. with a fine of Rs. one Lac and in default of payment of fine to undergo further 2-1/2 years R.I. on each count. Hence, this appeal. (3) Mr. Singhvi, learned counsel for the petitioner has assailed the judgment passed by the learned court below on the ground that mandatory provisions of the N.D.P.S. Act have not been followed. Therefore, the conviction passed on the appellant cannot be maintained and the same may be set aside. (4) Smt. Chandra Lekha, learned Public Prosecutor has supported the judgment and submitted that the appellant has been rightly convicted and sentenced. (5) I have heard learned counsel for the parties and perused the record carefully as also the relevant case law. (6) Mr. Singhvi, has firstly contended that the prosecution has not complied with the Sec. 42 of the N.D.P.S. Act which is mandatory, which provides as under : — "Sec. 42. (5) I have heard learned counsel for the parties and perused the record carefully as also the relevant case law. (6) Mr. Singhvi, has firstly contended that the prosecution has not complied with the Sec. 42 of the N.D.P.S. Act which is mandatory, which provides as under : — "Sec. 42. Power of entry, search, seizure and arrest without warrant or authorisation :— (1) Any such officer (being an officer senior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs, control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset." (7) According to Sec. 42, the officer specified therein is obliged to take down in writing his reasons to believe that the personal knowledge, he possesses or information given by any person to him before he carries out any of the functions mentioned in Sec. 42 (1) (a) to 42 (1) (d). However, according to proviso to this sub-section empowers an officer to enter and search the building, conveyance or place at any time only between sun set and sun rise without a search warrant or authorisation letter after recording grounds on his behalf that a search warrant or authorisation could not be obtained without affording opportunity for concealment of evidence or facility, for the offenders to escape. Sub. S. (2) of S. 42 enjoins upon the officer to send the copy of the written information or the recorded grounds who is immediate official superior. Sub. S. (2) of S. 42 enjoins upon the officer to send the copy of the written information or the recorded grounds who is immediate official superior. Now, keeping in view it is to be seen whether in this case provisions of Sec. 42 are complied with or not. P.W. 9 Talib Hussain, Dy. S.P. has stated that he prepared a memo Ex.P.8 as required under sub-Sec. (1) of S. 42 of the N.D.P.S. Act. On the other hand, P.W.4 Moola Ram, a subordinate who was accompanying P.W.9 Talib Hussain at the time of recovery has stated that no writing was drawn. Similarly, P.W. 10 Bhanwar Singh, S.H.O. has also stated that before entering in the Dhani of the accused no memo relating to reason. to believe was recorded. Therefore, merely oh the basis of the statement of P.W. 9 Talib Hussain, Dy. S.P. it cannot be said that memo regarding reason to believe as required under sub-section (1) of Sec. 42 of the N.D.P.S. Act was recorded before entering in the Dhani. As regards, sub-section (2) of Sec. 42 is concerned it is admitted by P.W. 9 Talib Hussain that the information which was took down by him in Ex.P.8 was not sent to his immediate official superiors, and thereby it leads me to the conclusion that S. 42 has not been followed, which is fatal to the prosecution in view of the decision rendered by this Court in Bhanwar Singh and Anr. Vs. The State of Raj. (1). (8) Mr. Singhvi has next contended that the mandatory provisions of Sec. 57 of the N.D.P.S. Act have not been followed by the prosecution. (9) To appreciate the contention of learned counsel for the petitioner it will be proper to read S. 57, which provides that the person arresting or making. a seizure within 48 hours next has to make a full report of all the particulars of arrest or seizure to his immediate official superior. In the instant case, according to the prosecution a Radiogram message Ex.P. 12 was sent. In the radio-gram it is mentioned that on an information of mukhbir, the Dhani of one Bala Ram was searched and 4 Kgs. opium and 1 Kg. opium milk was recovered. A bare perusal of Ex. In the instant case, according to the prosecution a Radiogram message Ex.P. 12 was sent. In the radio-gram it is mentioned that on an information of mukhbir, the Dhani of one Bala Ram was searched and 4 Kgs. opium and 1 Kg. opium milk was recovered. A bare perusal of Ex. P 12, the alleged radio-gram shows that no outward number has been mentioned, which is also evident from the statement of P.W. 10 Bhanwar Singh. Further, Ex. P. 13 the alleged detailed report dt. 30.4.1991 also does not contain any despatch number. Apart from that P.W.9 Talib Hussain has admitted that in Ex. P. 13 the fact of recovery of opium from a drum has not been mentioned. He has also admitted that in the report Ex. P. 13 the facts regarding weighing of opium, taking of sample, preparation of Fard Baramadgi report etc. have not been mentioned. This witness has further stated that it was the accused who had supplied the key of the Kolha from which the opium was recovered, which has also not been mentioned in Ex.P. 13. Therefore, non-mention of material facts by the prosecution regarding arrest and seizure in the detailed report sent to the Superintendent of Police, it cannot be said that in this case compliance of Sec. 57 has been made in view of Rattan Lai vs. State (2). Moreso, the transmission of message by radiogram Ex. P. 12 is not a substitute of detailed report and it is not a compliance of the provisions of S. 57 in view of Bhanwar Singhs case (supra) decided on 12.9.1989, therefore, it is fatal to the prosecution. (10) Mr. Singhvi, learned counsel for the appellant has contended that Sec. 55 of the N.D.P.S. Act has not been followed. As one of the conditions of this Sec. 55 requires that an officer-in-charge of a police station shall take charge of and keep in safe custody pending the orders of the Magistrate and after the recovery, the articles must be further sealed by the seal of the officer-in charge (SHO). As one of the conditions of this Sec. 55 requires that an officer-in-charge of a police station shall take charge of and keep in safe custody pending the orders of the Magistrate and after the recovery, the articles must be further sealed by the seal of the officer-in charge (SHO). A perusal of the statement of P.W. 9 shows that according to him he had affixed his own seal on the samples and that seal was also sealed vide Ex.P.2 with the seal of P.W. 1 Girdhari Singh, which does not find corroboration with the statements of other witnesses rather P.W. 7 Chunnilal, Malkhana-In-charge has stated that the packets which were given to him were bearing seal of P.S. Mandali. Admittedly, S.H.O. P.W. 10 Bhanwar Singh has not affixed his own seal on the packets and the learned Public Prosecutor has not been able to show from the evidence otherwise. In view of the above legal position and facts and circumstances of this case, the violation of this provision creates serious infirmity and fatal to the prosecution. (11) Apart from this there is one more material infirmity in the prosecution case. According to P.W. 10 Bhanwar Singh S.H.O., the samples as well as other articles were deposited in Malkhana by him, on the contrary, P.W.9 Talib Hussain has stated that he had appended his seal. He has also stated that recovered opium and samples were handed over by him to Head Moharir (Head Constable) for depositing in Malkhana. He has clearly stated that they were not given to Bhanwar Singh. Thus, it creates doubt about the veracity of the statements of the key officials of the recovery party as to who had deposited the articles in Malkhana. (12) To have a full proved case, one more condition which is required to be followed by the prosecution is that a separate specimen seal on a separate paper should be sent to the Director F.S.L. and it should have been produced in the court alongwith the other papers submitted with challan. (12) To have a full proved case, one more condition which is required to be followed by the prosecution is that a separate specimen seal on a separate paper should be sent to the Director F.S.L. and it should have been produced in the court alongwith the other papers submitted with challan. The main purpose behind sending impression of specimen seal on separate paper is to rule out any possibility that the articles which remained in their possession may not be replaced by putting other seal afterwards so that the Director, F.S.L. could have examined the specimen seal with that on the sealed packet and he could have come to a conclusion that the seal on the sealed packet was same and intact. In the instant case, admittedly there is no evidence that the specimen seal was put on a separate paper and was sent to the F.S.L. P.W.9 Talib Hussain has stated that he had not deposited his specimen seal in Malkhana but produced the same before the Munsif, Balotra. He has also stated that the application was rejected and the seal was returned to him. There is nothing on record corroborating this statement of P.W.9 Talib Hussain that the application was not accepted and seal was returned to him. Thus, in the absence of specimen seal being sent to the F.S.L. it cannot be said that the seal on the packet containing the substance, had contained that very seal which was affixed on the packet, it creates suspicion on the prosecution particularly when recovery witnesses have not supported the prosecution case and declared hostile. In the instant case, P.W.I Girdhari Singh who is also alleged to have been Motbir in 15-20 cases has stated that he was asked to be Motbir in the present case on the pretext that it is a theft case. P.W.2 Ganpat Singh has stated that neither any exhibit was prepared in the present case by the Dy. S.P. nor anything has been recovered in his presence. P.W. 8 Kana Ram has stated that Dhani was known as the Dhani of Kripa Ram where Kripa Ram resides. He has also stated that Bala Ram was not seen at Dhani. He has further stated that they were called from school to put their signatures but they had not read the memo. P.W. 8 Kana Ram has stated that Dhani was known as the Dhani of Kripa Ram where Kripa Ram resides. He has also stated that Bala Ram was not seen at Dhani. He has further stated that they were called from school to put their signatures but they had not read the memo. Thus, in view of the above discussion and decisions rendered by this Court in Prithvi Raj vs. State of Raj. (3), Viram Vs. State (4), Gopal vs. State (5) and Chatra Ram vs. State (6), this infirmity is fatal to the prosecution. (13) In view of the above discussion, in the present case for the non-compliance of mandatory provisions of Ss. 42, 55 and 57 and keeping in view the infirmities, it cannot be said that the prosecution has proved its case beyond reasonable doubt and, therefore, the conviction passed by the learned court below on the accused-appellant Bala Ram deserves to be set aside and the sentence awarded to the appellant is also quashed. (14) Before parting with the case, it may be observed that time and again this Court while deciding the cases some of them are referred above, arising out of the N.D.P.S. Act held that provisions of Ss. 42, 55 and 57 are mandatory in nature and issued directions to the concerned authority in this regard. I have also taken a similar view while passing a detailed order in Kabul @ Khudia Vs. State (7). In that case, in para 53 it has been observed that in order to avoid any mischief by the Investigating Officer and in order to see that a fair investigation is done, these provisions have been made in the legislation. Non-compliance of several provisions of the Act create doubt and suspicion in the fairness of the investigation. When doubt is with regard to mandatory provisions, then benefit of doubt must go to the accused. But still the investigating agencies are not complying with these mandatory provisions either they are not aware of the reasons best known to them. Since, the punishment under this Act is severe the legislature in its wisdom have made such stringent provisions with the object that there should be a thorough check at various stages of the investigation and to establish a case beyond reasonable doubt and to scrutinise the cases so that truth may come out, guilty persons may not be escaped. Since, the punishment under this Act is severe the legislature in its wisdom have made such stringent provisions with the object that there should be a thorough check at various stages of the investigation and to establish a case beyond reasonable doubt and to scrutinise the cases so that truth may come out, guilty persons may not be escaped. As the substances which come under the purview of this Act are threatening the existence of whole society and injurious to the health of man kind as a whole. But due to non-compliance of the mandatory provisions the Courts have no option but to acquit such persons or to set aside their conviction and if most of the persons are left unpunished for the non-compliance of mandatory provisions, the purpose and object of enactment of this Act will be frustrated or otherwise also innocent persons are unnecessarily dragged till the case is finally decided as generally in such cases bail is only granted unless conditions of Sec. 37 of the NDPS Act are fulfilled. Under the circumstances I deem it just and proper to direct the State to see that the investigation under the N.D.P.S. Act require more care and circumspection and the concerned authority should see that their I.O. should be made aware of the mandatory provisions as early as possible and to follow them strictly. The high official should keep a track on them, so that the personnel conducting the investigation may be held personally responsible for the lapses on the part of the investigation. A copy of this order be sent to the Chief Secretary, Government of Rajasthan for necessary compliance and report within six months. (15) In the result, the appeal is allowed with the above observations. The conviction and sentence of the appellant Bala Ram u/ss. 17 and 18 of the N.D.P.S. Act is set aside. The accused Bala Ram is in jail, he shall be released forthwith, if not required in any other case.