JUDGMENT 1. - This appeal is directed against the judgment of the trial court dated 3.7.1991 whereby the appellant has been convicted for the offence under section 8/18 of the Narcotic Drugs and Phychtropic Substances Act, 1985 (hereinafter referred to as `N.D.P.S. Act;) and sentenced to undergo 10 years rigorous imprisonment and also pay fine Rs. one lac, in default of payment of fine, further undergo 21/2 years rigorous imprisonment. 2. The prosecution case is that on 16.8.90, PW. 7 Heera Singh, S.H.O. Police Station Jawaja along with Dalpat Singh PW. 3 and Kishan Singh, PW. 6 were on round. While they reached at bus stand, the SHO Heera Singh, PW. 7 received a secret information from the informant that crushed capsules of pappy is being taken on camel back by one person. On that information, the SHO along with Dalpat Singh and Kishan Singh proceeded towards Dedata to Beawer road and on Dedata to Beawar road, they saw the accused appellant carrying 7 bags on camel back towards Beawar. He was stopped and was asked to disclose his identity. He was sitting on the camel and gave out his name as Durga Singh. The SHO further asked him that he wants to search the contents in bags which were in possession of the accused appellant and also told him that if he wants to be searched before a gazetted officer before search. He refused to go before any gazetted officer. Thereafter, the search was effected. 7 bags were found in possession of the appellant in presence of Mohtbirs PW. 1 Bhanwar Singh and PW. 2 Sukhdev. All these 7 bags were seized and seizure memo (Ex.P. 1) was prepared. The appellant Durga Singh was arrested and arrest memo Ex.P. 2 was prepared. Site plan (Ex.P. 3) was prepared. 7 samples were taken out of 7 bags and they were sealed. The accused along with the seized material were brought to Police Station Jawaja and FIR was lodged by Heera Singh, SHO (PW. 7). Thereafter, the statement under section 161 Cr.P.C. was recorded. The samples were sent to FSL. Site plan (Ex.P. 3) was prepared. 7 samples were taken out of 7 bags and they were sealed. The accused along with the seized material were brought to Police Station Jawaja and FIR was lodged by Heera Singh, SHO (PW. 7). Thereafter, the statement under section 161 Cr.P.C. was recorded. The samples were sent to FSL. In FSL, after analysis, it is opined:- "....On chemical examination the water extract of each of the sample contained in the packet marker A to G gave positive tests for the presence of chief constituents of opium hence the samples are of dried crushed capsules of poppy from which juice has been extracted." 3. Thereafter, the charge sheet was filed and as many as 7 prosecution witnesses were examined in the trial court. Statement of accused under section 313 Cr.P.C. was also recorded. He denied the charges and said that he has been falsely implicated by the prosecution. Considering the material on record, the trial court found guilty to the appellant for the offence under section 8/18 of NDPS Act. He has been convicted and sentenced as aforesaid. 4. Being dissatisfied, the appellant preferred this appeal. Learned counsel Mr. Bin Singh submitted that the prosecution has failed to comply with the provisions of Sections 42, 50, 55 and 57 of NDPS Act. He also submitted that in this case, PW. 7 Heera Singh, SHO is one and the same person who made the search, recovered the material, lodged the FIR and investigated the case. Therefore, no fair investigation can be expected from Heera Singh. He also pointed out that when the search was made and part of the investigation was conducted, thereafter, he lodged the FIR. Part of pre-investigation of FIR cannot be used against the accused appellant. 5. On the other hand, the learned Public Prosecutor placed his reliance on the judgment of trial court and submitted that he will file some authorities in favour of the judgment, but no such authorities were filed by him even after waiting for more than 3-4 months. Hence, I proceed with the arguments put forth by the counsel for the appellant and learned Public Prosecutor for the State. 6. Hence, I proceed with the arguments put forth by the counsel for the appellant and learned Public Prosecutor for the State. 6. The facts stated above are not in dispute that on 16.8.90 while Heera Singh, SHO along with Dalpat Singh and Kishan Singh were on round as per prosecution case, he received a secret information and they searched the appellant and 7 bags were recovered. Thereafter, the FIR was lodged by Heera Singh, SHO and he also investigated the matter. That fact has been borne out even by the statement of Dalpat Singh, PW. 3. He stated that it is true that Heera Singh, SHO has arrested the accused and recovered 7 bags of crushed capsules of poppy and he also lodged the report and investigated the matter. Similarly, the other eye witness Shri Kishan Singh, PW. 6 is also a constable and subordinate to SHO Heera Singh. He has also stated that SHO Heera Singh has lodged the report, recovered the material and investigated the matter and the statements of Sukhdev and Bhanwar Singh were recorded after registration of the FIR. Even Heera Singh, SHO (PW. 7) himself admits that he has searched the appellant, recovered 7 bags of crushed capsules of poppy from the possession of appellant, prepared site plan and lodged the FIR, and thereafter investigated the matter. Thus, there is no doubt or dispute on the fact that Heera Singh, SHO is one and the same person who recovered the material, arrested the appellant on the spot; prepared the site plan, lodged the FIR and investigated the matter, finally filed the charge sheet. Whether a fair trial (sic) can be expected from the such person in these circumstances. 7. This Court has considered similar issue in various cases including the case of Nathiya & ors. v. The State of Rajasthan (1992 (Vol. I) CCR 133) wherein the decision of their Lordships in case of Bhagwan Singh v. The State of Raj.) has been referred and observed as under:- "Investigation by a Head Constable who was himself the person, to whom bribe w'as alleged to have been offered and who lodged the F.I.R. as informant or complainant. This was an infirmity which was bound to reflect on the credibility of the prosecution case " 8. This was an infirmity which was bound to reflect on the credibility of the prosecution case " 8. It is further admitted case that after recovery, the material was seized, site plan was prepared, recovery was in presence of two Mohtbirs and thereafter, the FIR was lodged. This also is a serious infirmity in the case of prosecution. 9. In the case Nathia & ors. (supra), in para 12 of the judgment, it has been observed:- "the F.I.R. Ex.P. 16 was admittedly recorded at 1 p.m. on 28.2.87 i.e. after the policy party had reached the police station after making the recoveries. But, the recovery memo Ex.P. 1 bears the number of the F.I.R. The same is true of Ex.P. 2, Ex.P. 3 and Ex.P. 4. If the F.I.R. was registered after the alleged recoveries had taken place and after the accused-appellants had been apprehended, then these documents could not have recited the number of the F.I.R. at all. The prosecution has not explained this grave and serious discrepancy. The possibilities are that either F.I.R. had been recorded prior to the alleged recoveries and arrest or that the F.I.R. number was inserted in these documents after the F.I.R. had been registered. Both ways, it seriously reflects upon the veracity of the prosecution story and creates a good deal of doubt if recoveries had been made in the manner alleged by the prosecution." 10. The proviso of Section 42(1) requires that if the officer authorised under section 42 of the NDPS Act has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise, after recording the grounds of his belief, in writing and copy thereof be sent immediately to his official superior. In this case, no such satisfaction has been recorded by SHO Heera Singh. Therefore, there is no question of sending any copy of such satisfaction recorded by the SHO before search. 11. Section 50 of the NDPS Act requires that in case the person authorised under section 42 wants to search any person, that person be taken without unnecessary delay to the nearest Gazetted Officer. Therefore, there is no question of sending any copy of such satisfaction recorded by the SHO before search. 11. Section 50 of the NDPS Act requires that in case the person authorised under section 42 wants to search any person, that person be taken without unnecessary delay to the nearest Gazetted Officer. Though there is a mention in the statement, as well as, the report Ex.P. 11 that SHO has asked the appellant whether he be searched before a Gazetted Officer, and on his refusal, SHO himself has effected the search on the spot. Requirement of Section 50 is not a mere formality. In fact it is a right of the appellant which he can exercise with the letter and spirit of the provisions of Section 50. Therefore, before effecting the search, it should be made him clear that he has a right, if he likes he can be searched only before Gazetted Officer. But such fact is not borne out from the record and nothing is mentioned in this regard from the statement of independent witnesses viz. PW. 1 Bhanwar Singh and PW. 2 Sukhdev. Therefore, when the provisions of NDPS Act are stringent and provide heavy punishment for an offence which was stated to be a petty offence before this Act, the provisions of this Act are mandatory and be complied strictly by the Investigating Officer. 12. Even the recovery itself is not supported by recovery Mohtbirs viz. Bhanwar Singh, PW. 1 and Sukhdev, PW. 2. Bhanwar Singh was declared hostile. Even Sukhdev has stated that he does not know the appellant nor he identified him. They are the only recovery Mohtbirs who have signed on the recovery memo. Though SHO has supported his case along with two constables viz. PW. 3 Dalpat Singh and PW. 6 Kishan Singh, who were subordinate to him, in such cases, when the independent witnesses have not supported the case of the prosecution, it is not safe to convict only on the basis of statement of SHO, who himself has recovered the material, seized the material, lodged the FIR and investigated the matter along with the statements of two constables subordinate to him. 13. The perusal of record further reveals that as per statement of PW. 4 Chotulal, who stated that he received 7 packets of samples from Laxman Singh, PW. 5 on 24.8.90. Even Laxman Singh, PW. 13. The perusal of record further reveals that as per statement of PW. 4 Chotulal, who stated that he received 7 packets of samples from Laxman Singh, PW. 5 on 24.8.90. Even Laxman Singh, PW. 5 Head Constable also supported his version that he has handed over 7 samples at 6.15 a.m. on 24.8.90 to Chotulal PW. 4. But it is a matter of great surprise that FSL receipt Ex.P. 7 shows that in FSL, the samples have been received even on 23rd August, 19%. How it is possible. When Chotulal himself has taken the samples on 24.8.90 from `Malkhana;, how he Can deliver those samples a day before is FSL, Jaipur i.e. on 23.8.90. 14. Thus, in this case, there is not only non compliance of the mandatory provisions of the NDPS Act by the prosecution, but there are serious contradictions in the story of prosecution case and when the search, seizure, FIR and investigation is by one and the same person viz. Heera Singh, SHO (PW. 7), the conviction in such circumstances is not safe. Hence, I am of the opinion that prosecution has failed to prove its case beyond reasonable doubt for conviction. 15. In the result, the appeal is allowed and the conviction and sentence is set aside. The appellant be set at liberty with immediate effect if not required in any other case. *******