JUDGMENT Tej Shankar, J.--1. This appeal has been directed against the order of conviction and sentence dated 10.7.90 passed by the Sessions Judge, Guna, under section 8 read with section 200fthe Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No. 61 of 1985) (hereinafter referred to as the N.D.P.S. Act) to a term of 15 years R.I. and a fine of Rs. 2,00,000/- each. 2. The facts of the case leading to the appeal are that on 8.12.1988 Virendra Kumar Sharma, Narcotics Inspector of Central Narcotics Bureau Guna received secret information that some contraband articles is to pass from Agra-Bombay road. He along with Constable Devendra Kumar Baretha went to village Gadara, district Guna at about 2 or 2.30 P.M. They were standing on the road near village Gadara. They saw an Ambassador Car of blue colour bearing No. M.R.A. 4724 coming from Guna side. Virendra Kumar Sharma stopped the car and found three persons inside it. Appellants Nos. 1 and 2 were on front seat and one person was on the back seat. He made enquiry from the driver and he gave out his name as Mahfujar Rehman i.e. appellant. No. 2. His other companion who was sitting along with him was Abdul Haq, appellant No.1 and the person sitting behind him was Jallaluddin, appellant No.3. They told they were coming from Nepal. The Inspector disclosed his identify as Narcotics Inspector and wanted to search the appellants. Appellants did not object. Search was, however, taken and Charas was recovered from polithene bags in car which was hidden inside doors and hack seat. The search was taken before Sukhdevsingh and Shambhusingh who were also present. The Charas was seized. 30 packets containing Charas were prepared and recovery memo was prepared. It was signed by two witnesses and the appellants and both the officials. 20 sample packets were prepared and sealed separately. They were sent for chemical examination. The accused persons were arrested and were taken to the office of Narcotics Department at Guna. They were produced the next day before the C.J.M. Guna and they were sent to jail. Samples were sent to Neemuch on 12.12.88. According to the report of the Chemical Examiner it was found to be Charas (Cannabis hemps). A complaint was filed before the Chief Judicial Magistrate Guna. They were produced the next day before the C.J.M. Guna and they were sent to jail. Samples were sent to Neemuch on 12.12.88. According to the report of the Chemical Examiner it was found to be Charas (Cannabis hemps). A complaint was filed before the Chief Judicial Magistrate Guna. The case was committed to the Court of Sessions which was tried by the Additional Sessions Judge hut later on withdrawn by the learned Sessions Judge. The accused person denied the charge and claimed that they were falsely implicated by the Inspector in order to get reward. The prosecution examined P.W. 1, Sukhdevsingh, P.W. 2, Shambhusingh, P.W. 3, Devendra Kumar Baretha, P.W. 4, Virendra Kumar Sharma, Inspector, Central Narcotics Bureau, Guna. P.W 5, Chandrashekharan Pillai Chemical Expert. P.W. 6, Samantsingh who had taken the samples for chemical examination and relied upon documents Ex. P-1 in support of his case. The accused persons examined one Khan Begas D.W. 1. The learned trial Court after considering the material on record and hearing the parties held the accused guilty of the offence punishable u/s 8/20 of the N.D.P.S. Act and convicted and sentenced them as aforesaid. Feeling aggrieved the present appeal has been preferred. 3. I have heard the learned counsel for the appellants as well as the State. The learned counsel for the appellants vehemently argued that in this case mandatory provisions of law have not been complied with. He argued that u/s 42 (1) of the N .D.P .S. Act if an officer receives prior information the law requires that he should take it down in writing and under proviso to section 42 (1) he has to forthwith send copy thereof to his immediate official superior. The learned counsel urged that it has not been complied with. The Hon'ble Supreme Court in the latest - pronouncement in 1994 (1) Crimes S.C. 753 (State of Punjab v. Balbirsingh) has ruled that if there is non-compliance of this provision the same affects the prosecution case and to that extent it is mandatory. The learned counsel further contended that in the same case the Hon'ble Supreme Court further held that the provisions of section 50 of the said Act are also mandatory and if they have not been complied with it vitiates the trial. The learned counsel further contended that in the same case the Hon'ble Supreme Court further held that the provisions of section 50 of the said Act are also mandatory and if they have not been complied with it vitiates the trial. Section 50 of the N.D.P.S. Act provides that it is the duty of the officer making search under the provisions of sections 41, 42 & 43 to enquire from the person whether he desires to be taken to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. If this has not been complied with it also vitiates the trial. 4. The next argument of the learned counsel is that in this case the sample was sent for chemical examination with delay. It is not clear from the material on record as to whether the alleged recovered articles were kept intact or not. The learned counsel further argued that if there is no evidence to show that during the period between the seizure and production in Court the article was kept under seal and it is doubtful that the article sent for chemical examination was the article which was sealed, no conviction can be maintained. In order to support his contention he relied on 1993 Supreme Court Cases (Cri) 1082 (Valsala v. State of Kerala). He also contended that according to the case of prosecution 20 packets were prepared, 10 packets were sent to one plece and the other 10 were sent to another place. But there is nothing to show as to what happened to the samples which were sent to Delhi. It was the duty of the prosecution to have produced the result of that examination as well. As it has not been proved that the articles which were sent for chemical examination remained intact, it is doubtful and as such the order of conviction passed by the trial Court cannot be maintained. The learned counsel took me through the statements of the witnesses examined to show that the compliance of the mandatory provisions of law referred to above has not been made. 5. The learned counsel appearing on behalf of the State contended that there was recovery of 80 kg. of charas from the possession of the appellants and it has been proved to the hilt. The appellants did not possess licence for keeping it. 5. The learned counsel appearing on behalf of the State contended that there was recovery of 80 kg. of charas from the possession of the appellants and it has been proved to the hilt. The appellants did not possess licence for keeping it. The order of conviction and sentence has been rightly passed by the learned trial Court. 6. I have considered the contentions raised before me by the learned counsel for the parties and gone through the record. 7. Before entering into the legal contentions of the learned counsel for the appellants, it is necessary to mention the relevant provisions of the Act on which reliance has been placed. The learned counsel has referred to the provisions of sections 42 and 50 of the N.D.P.S. Act. Section 42 (1) provides that the empowered officer if he has prior information given by a person he should necessarily take it down in writing. Section 50 makes a provision to the effect that before search 'of a person is made, such person should be informed that if he so requires he should be produced before the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate as provided thereunder. The contention is that these two provisions are mandatory and they have not been complied with in the present case. As these provisions have not been complied with it is fatal to the prosecution and vitiates the trial. In the aforesaid authority of the Apex Court in (State of Punjab v. Balbir Singh) has been specifically ruled that under the proviso to section 42 (1) he must record the grounds and should forthwith send a copy thereof to his immediate superior official and the provisions are mandatory to this extent. If there is total non-compliance of this provision it affects the prosecution case. Similarly it has also been held that it is obligatory on the part of such officer to inform the person to be searched. If he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. In view of this law we have to scan the evidence on record and to find out as to how far the prosecution has been able to show that the requirement" of this provision have been fulfilled. P.W. 4, Virendra Kumar Sharma, is the Narcotics Inspector of the Central Narcotics Bureau. His statement is material. He stated that on 8.12.88 he came to know from the informant that some illicit goods were likely to come. In order to implement this information he went to village Gadar along with Constable Devendra Kumar Baretha. He thereafter narrated as to what happened according to him. His statement, therefore, shows that he had a prior information about the illicit goods. The law requires as shown above, that if he has a prior information given by any person he should necessarily take it down in writing. But there is nothing in his statement to show that he had ever noted it in writing. Thus, there is no compliance of the provisions of S. 42 (1) of the N.D.P.S. Act. Not only this, the law further requires that the said officer should comply with the provisions of S. 50 before search of a person is made and such person should be informed if he so requires he shall be produced before a Gazetted Officer or to a Magistrate as provided thereunder. It is obligatory on the officer under the law. His statement does not show anything in this regard. His statement simply shows the narration of fact" as claimed by the prosecution that he reached the place of occurrence at 2 or 2.30 P.M. At about 3.30 P.M. a blue colour car No. MRA 4724 came from the side of Guna. He stopped the car and made enquiries etc. etc. He further also stated that he told those persons that he had to search their car whereupon they gave their consent. There is nothing in his statement to show that he ever informed the persons as required u/s 50 if they require they shall be produced before a Gazetted Officer or to a Magistrate as provided thereunder. etc. He further also stated that he told those persons that he had to search their car whereupon they gave their consent. There is nothing in his statement to show that he ever informed the persons as required u/s 50 if they require they shall be produced before a Gazetted Officer or to a Magistrate as provided thereunder. He also stated that the accused were searched and arrested. There is a specific statement in cross-examination of this witness which goes to show that there is total non-compliance of this provision. He clearly stated that he received information from an information on 8.12.88 at about 1 P.M. He is specific in his statement when he said: ^^eSaus bl lwpuk vkSj le; dk bUnzkt dgha ugha fd;k** Again regarding non-compliance of the provisions of S. 50 he stated specifically that he did not enquire from the accused persons whether they wanted to go to the Magistrate or to a Gazetted officer for search. He did not take the accused persons immediately after search to the Magistrate or to a Gazetted Officer. He started searching of the goods. The learned counsel for the State has not been able to show anything from his statement that the compliance of S. 42 and 50 has been made. Rather the statement shows otherwise. In this view of the matter there is a total non-compliance of the mandatory provisions of law in the present case. In view of the law laid down by the Hon'ble Supreme Court in the aforesaid authority the non-compliance of these provisions affects the prosecution case and vitiates the trial. The accused persons cannot, therefore, be convicted in the absence of compliance of these provisions. The contention of the learned counsel for the appellant must, therefore, succeed. 8. The next contention of the learned counsel for the appellants is that there is delay in sending the recovered articles and there is no evidence to show that they were kept intact before they were sent for chemical examination. In this connection, we have to revert to the statement of P.W. 4 Virendra Kumar Sharma. He stated that after search and after recovery was made, he got the recovered bags weighed through Devendra Kumar. It weighed 80 Kg. As the contents of 30 bags were smaller he took out some contents of each bag and prepared two samples of 25 gm. each. He stated that after search and after recovery was made, he got the recovered bags weighed through Devendra Kumar. It weighed 80 Kg. As the contents of 30 bags were smaller he took out some contents of each bag and prepared two samples of 25 gm. each. He also prepared samples from remaining two bags of 25 gm. each. He kept them in a cigarette packet and scaled them in white paper. He pasted slip and signed over them. He took signatures of witnesses as well as of accused persons. The Charas which was recovered from bags was sealed in the same bags. He prepared Japti panchnama at the spot which is Ex. P-l. After completing his work he went to his office at Guna and prepared First Information Report, Ex. P-l1. He entered the recovered articles in the Malkhana register and kept it in the Malkhana. On 10.12.88 he took out 10 samples from the Malkhana and sent through constable Samant Singh to Government Opium workshop Neemuch for chemical examination. He had sent these packets in sealed condition and Samant Singh had taken them to the workshop. In his cross examination he stated that he deposited the recovered articles on 23.3.89 in the Court and till then the recovered articles were in his Malkhana. He could not tell as to who are Constables and whose custody the articles were kept from 10.12.88 to 29.3.89. He could not say as to when the Malkhana was opened and closed. There is no entry in the Malkhana Register to show as to when these samples were taken out. There is nothing in the Register to show that the samples were taken out from Malkhan but he had to say if the samples were not taken out how they were sent. He again stated that when the Malkhana is opened no entry is made in the register. The samples were sent for chemical examination on 10.12.88. It is surprising as to how the samples were sent on 10.12.88 when according to him they were kept in the Malkhana from 18.12.88 to 29.3.89 and they were taken out from the Malkhana for being sent for chemical examination. Thus, there is something wrong somewhere. Again it may be mentioned that he further stated that after submitting chargesheet he sent 10 samples for examination to Delhi. It is mentioned in Panchanama that 20 samples were prepared. Thus, there is something wrong somewhere. Again it may be mentioned that he further stated that after submitting chargesheet he sent 10 samples for examination to Delhi. It is mentioned in Panchanama that 20 samples were prepared. But this fact has not been mentioned in the charge-sheet. Then there is nothing on record to show as to what happened to these 10 samples which were sent to Delhi for examination. Thus, his entire statement appears to be a confused statement and leads us nowhere. To my mind, it goes against the prosecution. It is for the prosecution to establish unequivocally that the property was kept sealed between the period of seizure and production in Court. As stated above, the goods were produced on 29.3.89 and prior to this period in Malkhana. I have detailed the facts given by the witness in his statement and it appears to be a confused statement with respect to proper custody of the goods. The benefit has to go to the accused. In the aforesaid case (Valsala v. State of Kerala) relied upon by the Counsel for the appellants one fact was found that there was absence of evidence to show that during the period of over three months between the seizure and production in Court, the seized article was kept under seal in the custody of the officer in charge of police station. It was, therefore, held it was doubtful whether the very article that was seized was sent to the Chemical Examiner. The investigation was perfunctory and evidence was insufficient, hence conviction was set aside. This authority supports the contention of the learned counsel for the appellants. In view of what has been said above, it is clear that the conviction and sentence passed by the learned trial Court cannot be maintained and the appeal must succeed. 9. It is unfortunate that due to the negligence on the part of the authority and concerned officer non-complying with the mandatory provisions of law such a case goes unpunished. The Legislture had conferred wide powers on the officers under the N.D.P.S. Act but the Legislature has also taken care that no harm is done to innocent persons and in order to avoid and minimise false plantation by the prosecution safeguards have been provided under the Act. The Legislture had conferred wide powers on the officers under the N.D.P.S. Act but the Legislature has also taken care that no harm is done to innocent persons and in order to avoid and minimise false plantation by the prosecution safeguards have been provided under the Act. If the officers entrusted with the job do not comply with - mandatory provisions of law they had to be taken to task. The concerning authority must, therefore, look to this aspect and see that strict compliance of mandatory provisions of law is made so that the very purpose of enactment is not frustrated by the negligence and carelessness of the officers. 10. In view of what has been said above, the appeal is allowed and the order of conviction and sentence passed by the learned trial Court is set aside. The order with respect to the disposal of property is, however, maintained. Let a copy of this judgment be sent to the Narcotics Commissioner, Govt. of India, Morar (Gwalior) for such necessary action as he may deem fit. The appellants shall be released forthwith, if not required in any other case.