JUDGMENT Asis Baran Mu'kherjee, J. : The appeal arises out of judgment of conviction and sentence passed by Additional Sessions Judge, 5th Court, Alipore in Sessions Trial No. 3(11) of 1990 whereby the learned Judge convicted and sentenced the accused/appellant to suffer rigorous imprisonment for 16 years and to pay a fine of Rs. 1,50,000/- in default to suffer R. I. for 4 years under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "Act"). 2. The prosecution case as appears from the G. D. Entry No. 31 dated 1.5.88, of Ekbalpur P. S. which has been treated as F. I. R. is that Sub-Inspector (section Z) on the. basis of a source information conducted a search at 18A, M. P. Road on that day between 14:00 hours and 14:30 hours in presence of two local witnesses. Seeing the arrival of police the accused/appellant who was present in his room tried to conceal himself but the police party caught hold of him, conducted search of his person and found 35 small paper packets weighing about 12 grams in all containing heroin powder wrapped-up in an ashcoloured handkerchief which was kept in his left trouser's pocket. A seizure list was prepared on the spot in presence of witnesses after observing all legal formalities. The room was also searched but no further incriminating articles could be found. The paper packets were numbered and kept in an envelope which was also sealed. On return to the P. S. Sub-Inspector recorded the seizure list and also took up the case for further investigation as per direction of the O. C. The accused was kept in the P. S. and seized articles were kept in P. S. Malkhana. A telephonic message was also sent to A. C. and also D. C. (DD. II) In-charge of the Narcotic Cell. 3. The seized articles were sent to the Central Public Health and Drug Laboratory, Government of West Bengal. On analysis the Government Analyst certified the contents to be heroin. After completion of investigation, charge-sheet was submitted. The learned C. J. M. concerned took cognizance of the offence and after supply of copy committed the case to the Court of Sessions. 4. During trial, the prosecution examined five witnesses. The defence, however, did not examine any witness or exhibit any document. The defence case is a plea of innocence. After completion of investigation, charge-sheet was submitted. The learned C. J. M. concerned took cognizance of the offence and after supply of copy committed the case to the Court of Sessions. 4. During trial, the prosecution examined five witnesses. The defence, however, did not examine any witness or exhibit any document. The defence case is a plea of innocence. The learned Trial Judge on a consideration of the materials on record came to the conclusion that the accused/appellant was in possession of 35 packets of heroin without any legal authority to do so. Accordingly, he convicted and sentenced the accused in the manner as stated earlier. 5. Being aggrieved, the present appeal has been preferred alleging, inter-alia, that there was non-compliance of mandatory provisions of the Act by the Police .Officer, that the evidence of disinterested witnesses were not given any weight and the alleged seized articles were actually not sent to the Public Analyst. But the learned Trial Judge drew a distorted inference on the basis of materials which strictly speaking were not admissible in evidence. 6. The point for determination is whether the judgment of conviction and sentence of the learned Trial Judge can sustain. 7. The learned Advocate appearing for the accused/appellant in course of his argument drew our attention to different provisions of the Act in order to show that there was complete non-compliance of mandatory provisions of the Act rendering the prosecution without any legal basis. It was specifically argued that section 42 and section 50 of the Act, both of which are mandatory, have not at an been observed, as a result of which the conviction and sentence cannot sustain. In support of his contention he has relied on different provisions of the Act and also some observations of the Hon'ble Supreme Court and also of some other High Courts in this matter. 8. We have given our careful consideration to the submissions made by the learned Advocate appearing for the accused/appellant. We have also carefully scrutinized the evidence on record and the case laws relied on by the defence. On a consideration of the above, we are of opinion that the conviction and sentence cannot sustain. 8. We have given our careful consideration to the submissions made by the learned Advocate appearing for the accused/appellant. We have also carefully scrutinized the evidence on record and the case laws relied on by the defence. On a consideration of the above, we are of opinion that the conviction and sentence cannot sustain. At this stage, it may be stated that during the course of the hearing of the appeal, no Advocate appeared on behalf of the State since the concerned Advocate was not prepared to file any paper showing his engagement in the case by the learned P. P. High Court, Calcutta. Before taking up the decisions cited at the Bar, we think it necessary to scrutinize the evidence adduced in this case. 9. P.W.1 and P.W.3 are two alleged witnesses to the search and seizure. They are men of the locality and as per prosecution story they were present all along during search. They are also stated to have lend their signatures on the seizure list and also the envelope within which the sample packets were alleged to have been kept. But both the witnesses when examined by the prosecution stated that they were called by Police Officers to Ekbalpur P.S. where they were asked to sign on blank papers which they did and thereafter left the P. S. Both of them pretended their complete ignorance about any incident of search and seizure. Consequently, the prosecution declared both the witnesses as hostile and in course of cross-examination by the prosecution both of them denied their alleged statements to the Police in course of investigation as also particulars of the search and seizure. The learned Trial Judge as we find from the judgment, relied on the statements of these two witnesses recorded under section 161 Cr. P. C. and ignored the fact that none of these witnesses stated anything specific about the search and seizure. Obviously, statements recorded u/s. 161 Cr. P. C. are not substantive evidence and, as such, the reliance placed by the learned Trial Judge on such statements is not in accordance with law. 10. The learned Trial Judge gave much emphasis on the evidence of P.WA, the Inspector of Police who at the relevant point of time was posted at Ekbalpur P. S. in his capacity as Sub-Inspector of Police. This officer actually led the police party while conducting alleged search and seizure. 10. The learned Trial Judge gave much emphasis on the evidence of P.WA, the Inspector of Police who at the relevant point of time was posted at Ekbalpur P. S. in his capacity as Sub-Inspector of Police. This officer actually led the police party while conducting alleged search and seizure. He also investigated the case for a considerable period and the only part played by the second I.O. namely, P.W.5 was to obtain the report of the Public Analyst and submit charge-sheet. On a scrutiny of the evidence of P.WA, we get that on 1.5.88 he received an information from a reliable source at 13:30 hours to the effect that one Ali Hossain alias Dulal was selling heroin in Mominpur Busti area and that he would be available in his residence. Accordingly, he made a G. D. Entry, being No. 27 of even date and left with a police party at about 13:45 hours to work out the information. They reached the residence of Ali Hossain at 18A, Mominpur Road and before entering the house, picked up two persons from the onlookers. They found Ali Hossain trying to conceal himself. Then they caught hold of him and thoroughly searched his person when they got 35 small paper packets containing heroin powder wrapped up in an ash coloured handkerchief which was kept in his trouser's pocket, Seized article formed the basis of a seizure list made on the spot. Apart from the signature of the witness, the L.T.I. of accused Ali Hossain were also taken on the same. The packets were numbered and all were kept in brown coloured envelope which was also seized. The signature of the witnesses were also affixed on that envelope apart from L.T.I. of the accused. They returned to the P.S. along with the seized articles and the accused. He made a G.D. Entry, being No. 31 of even date which was treated as F.I.R. and Ekbalpur (section Z) P. S. Case No. 93 of even date u/s. 21 of the N.D.P.S. Act was started. After obtaining permission from the O.C. he started investigation after conveying a telephonic message to his superior authority like AC. II, P.D. and D.C. intimating them about the seizure. Seized articles were kept in the Thana Malkhana and the accused was detained at the Police lock-up. Later, he was forwarded to the Court on the next day. After obtaining permission from the O.C. he started investigation after conveying a telephonic message to his superior authority like AC. II, P.D. and D.C. intimating them about the seizure. Seized articles were kept in the Thana Malkhana and the accused was detained at the Police lock-up. Later, he was forwarded to the Court on the next day. He examined two local witnesses who were witnesses to the seizure on the same day. Paper packets were sent to Government Analyst for analysis. On 20.6.89 he made over charge of investigation to the O.C. as he was transferred. 11. We get from his cross-examination that one Head Constable and three other Constables accompanied P. W. 4 during raid but none has been examined. We also get from him that a Malkhana Register is maintained at the P.S. In-charge of one AS.I. We also get from him that from 1.5.88 to 4.7.88 the alleged seized articles were In-charge of Malkhana Officer. The articles are stated to have been forwarded to the Analyst only on 4.7.88 as per Exhibit 5. Neither the Malkhana register has been produced nor the AS.I. In-charge of the same has been examined in this case. The witness categorically admits that he has no personal knowledge through whom the seized articles were sent to the Analyst. 12. As we have stated earlier the second La. namely, P. W. 5 practically did nothing towards investigation. The evidence given by him is not at all material for our purpose. 13. The other witness in this case is P.W.5, the Director of the Laboratory where the articles are stated to have been sent as per his evidence. The articles were received in sealed packet from O.C. Ekbalpur P.S. on 14.7.88. It was subjected to Chemical Analyst and it was found to contain dismorphin that is heroin. Exhibit 3 is the report of Public Analyst. In cross-examination the witness could not give the date of examination of the sample. The report is dated 1.8.89. Therefore, it is not known as to how long the said sample was lying in the Laboratory before they were subjected to Chemical Analyst. A scrutiny of the Exhibit 3 reveals that there is no mention therein of the number of packets which were received for analysis. This is all about the evidence on record regarding search, seizure and analysis. 14. A scrutiny of the Exhibit 3 reveals that there is no mention therein of the number of packets which were received for analysis. This is all about the evidence on record regarding search, seizure and analysis. 14. We have seen that P.WA acted on the basis of an information derived from his source and he made a G.D.Entry before he left P.S. to work out the information. G.D.Entry No. 27 which is the relevant entry reads as follows : "Left for Mominpur with force for working out an information". 15. The point to be decided is whether this G.D.Entry satisfied the requirements of section 42(1) of the Act. In our considered opinion, the G.D.Entry is not at all sufficient inasmuch as it does not contain the particulars of information received by him. While narrating the case as also analysing the evidence of P.W.4, we have shown the information which was gathered by the Police Officer. This information did not find any place in the G.D. Entry recorded by him. The said G.D.Entry is cryptic and does not satisfy the requirements of section 42 (1) of the Act. 16. The Police Officer also did not comply with the requirements of section 42(2) of the Act inasmuch as he did not send a copy of the said information in writing to his immediate superior officers. 17. While analysing the evidence of the Police Officer, we have shown that after the alleged seizure he conveyed the fact of seizure to A.C. and also D.C. over phone. The learned Trial Judge has opined that G.D. Book is in the custody of the O.C. and, as such, the latter must be due to have knowledge of the contents of the same and, as such, there was sufficient compliance of section 42(2) of the Act. In our opinion, this is far from so. As we have said earlier that G. D.Entry No. 27 dated 1.5.88.does not satisfy the requirements of section 42(1) of the Act. In our opinion, this is far from so. As we have said earlier that G. D.Entry No. 27 dated 1.5.88.does not satisfy the requirements of section 42(1) of the Act. Similarly, making of a G.D. even if it would have been exhaustive cannot be considered to be a compliance of section 42(2) of the Act simply because O.C. being the Head of the P.S. is In-charge of the papers and registers maintained at the P.S. including the G.D. The requirements of section 42(2) of the Act demands that attention of the superior officer need be drawn to the information derived by the Officer from persons in accordance with section 41(1) of the Act. 18. Next comes the question of search. We get from the Police Officer that as soon as they caught hold of the accused/appellant, they searched him thoroughly till recovery was made. It goes without saying that the Police Officer did not offer the accused/appellant to be searched in presence of a Gazetted Officer of the concerned Department or a Magistrate. The learned Trial Judge is under the mis-conception that offer need not be given but the person to be searched is required to state of his intention of being searched in presence of the Gazetted Officer or a Magistrate. This is not the interpretation of section 50 of the Act as has been done by the Hon'ble Supreme Court and also other High Courts in several decisions. A common man is not expected to know all the legal rights given to him under the Statute unless his specific attention is drawn to those rights. We shall discuss the case laws on this point presently. 19. The evidence of P.W.2, the Public Analyst is also not without any fault. We do not get from his evidence that he compared the seal on the envelope with the specimen seal sent to him separately but was satisfied that the seal on the envelope was intact and accordingly, proceeded for analysis. 20. The learned Advocate appearing for the accused/appellant has also drawn our attention to some other factors in the matter of alleged seizure. It has been argued that signature of the accused/appellant has been taken on the seizure list and also on the envelope. This is also the evidence of P.W.4. 20. The learned Advocate appearing for the accused/appellant has also drawn our attention to some other factors in the matter of alleged seizure. It has been argued that signature of the accused/appellant has been taken on the seizure list and also on the envelope. This is also the evidence of P.W.4. While there is absolutely no scope for taking the signature of person searched on the envelope, the signature of the said person on the seizure list can be taken only as a token of supplying a copy of the seizure list to him. But in the seizure list (Ext. 1) there is the endorsement "signature of the person whose room was searched and from whose possession articles seized" appearing above the L.T.I. of the accused/appellant. This is absolutely illegal and amounts to testimonial compulsion. 21. While analysing the oral evidence, we have shown that the articles were lying at Thana Malkhana from 1.5.88 to 4.7.88. There is no explanation for the articles being kept at the P.S. for such a long period. We have shown that the Malkhana register has not been exhibited and the Officer-in-Charge of the register has not been examined. The Police Officer examined, namely P.W.4 is not in a position to say who actually carried the articles to the Government Laboratory for analysis. As per the evidence• of the Public Analyst, articles were received at the Laboratory on 14.7.88. We can take Judicial notice of the fact that it does not take even an hour for a person to carry the articles from Ekbalpur P.S. to Convent Lane, Calcutta where the Laboratory is situated. As such, the prosecution is to explain the period from 4.7.88 to 14.7.88 and is required to satisfy the Court that for these 14 days the articles were in the safe custody. This has not been done. For all these reasons, there is considerable substance behind the argument advanced on behalf of the accused/appellant that the articles alleged to have been seized were not sent to Government Analyst. This being the factual position, we now propose to discuss the case laws relied on by the learned Advocate appearing for the accused/appellant. 22. The law relating to N.D.P.S. Act and its application has been laid down by the Hon'ble Supreme Court in the case of the State of Punjab vs. Balbir Singh reported in 1994 C Cr. This being the factual position, we now propose to discuss the case laws relied on by the learned Advocate appearing for the accused/appellant. 22. The law relating to N.D.P.S. Act and its application has been laid down by the Hon'ble Supreme Court in the case of the State of Punjab vs. Balbir Singh reported in 1994 C Cr. Law Reporter (SC) at Page 121. It has been stated that to avoid harm to innocent person and also to avoid abuse of the provision of the Act certain safeguards have been provided in the Act itself which are to be observed strictly. Those provisions are obligatory in nature. On receiving information, the Officer is to reduce the same in writing and also record reasons for the belief while carrying out the search. Failure to comply with this mandatory provision affects the prosecution case and, therefore, vitiate trial. Regarding section 50 of the Act, it has been stated that it is imperative on the part of the Officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. This provision is mandatory. 23. Law laid down in the aforesaid case has also been followed by the Hon'ble Supreme Court in a case reported in JT 199J5 (3) SC 489 being Siyad Md. Siyad Umar and others vs. The State of Gujrat, where it has been laid down that it is imperative on the part of the Officer to inform the person to be searched of his right. Cogent evidence has to be produced to show that the said person was made aware of such right and there is no question of drawing any presumption u/s. 114 illustration(e} of the Evidence Act. Protection u/s. 50 of the N.D.P.S. Act to the accused is sacrosanct and cannot be disregarded. 24. Some principle has also been enunciated in another case reported in 1992 Cr. L. J. 2342, where it has been laid down that in case of an offence under N.D.P.S. Act the investigation should be done by an independent agency and not by the person conducting search and seizure. In another case reported in 1994 C Cr. Law Reporter (SC) page 4, delay in sending seized articles to the Chemical Examiner has been held to be fatal. In another case reported in 1994 C Cr. Law Reporter (SC) page 4, delay in sending seized articles to the Chemical Examiner has been held to be fatal. It has further been held that in the absence of proper evidence on the point of custody of articles and in the presence of any missing link conviction cannot sustain. In our case, we have shown that there was considerable delay in sending the seized 'articles to the Laboratory and there was also a long gap between the actual date of sending the articles and the receipt of the same by the Laboratory which remains unexplained. It has also been reiterated in another case reported in AIR 1995 SC 1208 that provision of section 42 and section 50 are all mandatory and in the event of non-compliance, the accused is entitled to be acquitted. 25. The learned Trial Judge in the face of the state of evidence given by the seizure witnesses relied on the evidence of P.W. 4 being the sole witness on the point of search and seizure and for this purpose relied on a case reported in AIR 1978 SC 1511 . But in our opinion, the said case has no relevance in the case at hand because the N.D.P.S. Act prescribes a specific provision for all matters regarding search, seizure etc. and it is obligatory to comply with provision of the same. The case relied on by the Ld. Trial Judge is on general law relating to search and seizure and, as such, cannot have any overriding effect so far as N.D.P.S. Act is concerned. Besides, we have shown the trend of the judicial decisions quoted in the case referred to by the appellant and discussed by us. 26. To sum up the Police Officer conducting the raid did not comply with the provisions of section 42(1) and also section 42(2) of the N.D.P.S. Act. He also did not act in accordance with section 50 of the N.D.P.S. Act and no option was given to the accused. The reliance on the statements of two hostile witnesses recorded u/s. 161 Cr. P.C. is not in accordance with law. The long delay in sending alleged seized articles for Chemical Analysis remains unexplained. So, also there is no evidence regarding proper custody of the said materials. The reliance on the statements of two hostile witnesses recorded u/s. 161 Cr. P.C. is not in accordance with law. The long delay in sending alleged seized articles for Chemical Analysis remains unexplained. So, also there is no evidence regarding proper custody of the said materials. The whereabouts of the alleged seized articles from the date of sending the same from the P.S. to the date of receipt of the same by the Public Analyst is a mystery. It is true that trafficking in Drugs and Narcotic Substances is a menace to the society. But it is also true that the interest of common man must be safeguarded while administering the N.D.P.S. Act by the officers specially in view of the deterrent nature of the sentence provided in the Act as also the shifting of onus on the accused to explain possession of Drugs and Narcotic Substances which is a deviation from common law of the land. 27. In the result, the order of conviction and sentence cannot sustain. Accordingly, the appeal be allowed and the conviction and sentence passed by the learned Trial Judge be set aside. The accused/appellant be sent at liberty forthwith if not wanted in any other case. Seized articles be destroyed in accordance with law. S. N. Mallick J. : I agree. Appeal allowed. Conviction and sentence set aside.