JUDGMENT 1. - This appeal has been directed against the judgment dated 4.6.92 passed by the learned Special Judge, N.D.P.S. Act Cases, Jodhpur whereby he convicted the appellant for the offence under section. 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short `the Act') and sentenced him to R.I. for ten years and a fine of Rs. one lac and in default of payment of fine to further undergo R.I. for two years. 2. Briefly the facts necessary for disposal of his appeal are that Shri Balesh Kumar, Assistant Collector (Customs), Jodhpur on receipt of a secret information, directed PW 2 Shri Y.P. Badhvar, Superintendent, Customs, Jodhpur to organise a raid party and lay `Nakabandi' on National Highway No. 15. In pursuance thereof, on 16.2.90, PW 2 Y.P. Badhvar alongwith Customs Inspectors PW 3 Bhanwar Singh, PW 4 Anil Sharma, M.L. Sera, S.K. Bhaskar and other Custom Officers reached around 7.30 PM near Bap Bifurcation (Phanta) in a Govt. Gypsy vehicle. From there, motbirs PW 5 Dhanraj and PWt7 Mangilal were taken. Thereafter at about 8.30 PM, the said raid party proceeded on National Highway No. 15 and laid `Nakabandi' near a culvert, situated at a distance of about 11 kms. from village Bap towards Bikaner. The said raid party checked/searched light vehicles, which passed through that road. It is alleged that at about 9.30 / 9.45 PM, a Jonga Jeep coming from Bap side was sighted, which slowed down about a one furlong away from the raid party and after putting off its head lights, went down on the left side off the road in `Kachha'. However, its parking lights were visible. The said Jonga stopped after covering a distance of about 600 yards. This place was horizontally about 500 yards away from the culvert, where the raid party was standing. PW 2 Y.P. Badhvar instructed PW 4 Anil Sharma and M.L. Sera to approach near the suspect vehicle and to gather information about its activities. It was a pitch dark night. After about half an hour, Anil Sharma returned and informed Y.P. Badhvar that voices of some persons were being heard and that some articles were being unloaded from the said Jonga. Thereupon, two parties were formed. The Foot Party consisted of PW 4 Anil Sharma and M.L. Sera and Madan Singh, Sepoy. It was a pitch dark night. After about half an hour, Anil Sharma returned and informed Y.P. Badhvar that voices of some persons were being heard and that some articles were being unloaded from the said Jonga. Thereupon, two parties were formed. The Foot Party consisted of PW 4 Anil Sharma and M.L. Sera and Madan Singh, Sepoy. The other party, which was seated in the Gypsy, consisted of PW 2 Y.P. Badhvar, PW 3 Inspector Bhanwar Singh and motbirs PW 5 Dhanraj and PW 7 Mangilal and other officials. Both parties proceeded towards the place where the Jonga was standing. The Foot Party approached in `Kachha' in northern direction, while the party in Gypsy went down off the road in the `Kachha' through which the suspect Jonga had earlier passed. It is the case of the prosecution that when the Gypsy covered a distance of about 150 yards, a gun shot was fired from the side of the suspect vehicle. Thereupon, all the lights of the Gypsy were switched off. After waiting for about five minutes, the Gypsy was again started and when it covered a distance of another 100 yards, again a gun shot was fired by the culprits in the air. There upon after the head lights of the Gypsy were switched on, it was speedly driven towards the suspect vehicles. It is the case of the prosecution that in the head lights of Gypsy, a Jonga jeep was seen and at that moment of time, somebody amongst the culprits shouted "Are Bhago, Sadiq Bhag". Meanwhile, a tall person having well built body was also seen running towards the left side of the Jonga. Three more persons were also seen boarding in the said Jonga from its rear side. It is alleged that PW 3 Bhanwar Singh, who was sitting on the rear seat of Gypsy as also PW 4 Anil Sharma, who was on foot, identified two persons Gajida and Khudia. The suspect Jonga speeded away and the culprits made good their escape. The raid party did not immediately pursue/chase the suspect Jonga. It is further the case of the prosecution that when the Gypsy party & Foot party reached the place of occurrence, where the suspect Jonga was previously stationed, two gunny bags and four H.D.E.P. bags and a pail of shoes were found lying. The raid party did not immediately pursue/chase the suspect Jonga. It is further the case of the prosecution that when the Gypsy party & Foot party reached the place of occurrence, where the suspect Jonga was previously stationed, two gunny bags and four H.D.E.P. bags and a pail of shoes were found lying. It is alleged that after 5-7 minutes, the Reserve Party consisting of PW 1 Prakash Rao, Superintendent (Customs), Phalodi, PW 6 U.K. Verma, Inspector; who were earlier informed by Y.P. Badhvar on wireless set while proceeding from place of `Nakabandi' towards the suspect Jonga, also etched there. Thereafter, motbirs Dhanraj, Mangilal and Anil Sharma and some officials of the Customs Department, were left on the site to look after the articles found lying there and in two Govt, vehicles, Y.P. Badhvar, Prakash Rao and other customs officials went in search of the culprits. The Chasing party returned empty handed after about three hours as neither the Jonga could be traced nor the culprits were apprehended. Y.P. Badhvar and others opened those bags and found packets of Charas and Heroin therein. Those gunny bags and pair of shoes were loaded in the Gypsy, wherein motbirs were sitting and the raid party reached the Canal Guest House, Phalodi at about 3 AM where weighing scales and weights were sent for. In presence of motbirs, those bags were opened wherefrom 199 packets each wrapped in polythene bags containing black resin (Charas) and ten packets of heroin were found. The detailed weightment lists of those packets Ex. P.2 and Ex. P. 2/1 to Ex. P.2/7 were prepared. Those packets also had foreign marks and details thereof were jotted down in memos Ex. P. 6 and Ex. P.7. The gross weight of `Charas' packets and that of Heroin were 202 kgms 100 grams and 10 kgms 815 grams respectively. Seven lots of charas bearing separate marks were formed. All the packets of heroin bore similar marks. Hence a separate lot of those packets was formed . Two sets of samples (Representative sample and duplicate sample) each weighing 25 grams of Charas from the seven lots 6f Charas packets and two samples (Representative sample and duplicate sample) of five grams each from the ten packets of heroin, contents of which were found to be uniform by the aid of U.N. Drug Kit, were drawn and those were sealed in separate plastic covers. Those samples were then wrapped in official envelopes, which were also sealed. The seized packets of Charas and Heroin were also sealed. Those were placed in separate packets, which were also sealed ai.a a detailed Panchnama Ex. P. 1 was prepared. These proceedings were completed by 10.30 AM on 17.2.90. It is alleged that site plan Ex. P.5 was prepared on the spot on the night intervening 16th and 17th Feb. 1990 immediately after the Chasing party had returned. It is the case of the prosecution that on the basis of the secret information as also from the incident, the Customs party had reasonable grounds to believe that Saddiq s/o Nizamuddin r/o Hindal Ka Gol was connected with the recovered contraband articles. Therefore, on 17.2.90, the Customs Party after obtaining the search warrant under section 41 of the Act went to village Hindal Ka Gol to take the search of his house but he was not found there. However, Saddiq was apprehended in that village by one Custom Officer. In the meanwhile, about 50-60 villagers assembled there. They attacked on the Customs party, tried to snatch the rifle of Loonkaran, Sepoy and some person from the crowd also fired in the air. It is alleged that during that hustle bustle, Saddiq made good his escape and joined the crowd, the Customs party without taking the search of Saddiq's house returned and an F.I.R. was lodged at P.S. Phalodi in respect of that incident. It is further the case of the prosecution that on 18.2.90, the Customs Officers took search of the house of Saddiq, but he was not available and nothing incriminating except a number plate of a vehicle was found. On 20.2.90, the sealed packets of the samples were sent to the Central Revenue Chemical Laboratory (C.R.C.L.) alongwith test memos Ex. P. 10 to Ex. P.16. The CRCL after chemical examination found that those samples were of Charas and Heroin. 3. It is the case of the prosecution that on 15.3.90, a notice under section 67 of the Act was issued against appellant Gaji Khan, who appeared on 16.3.90 before PW 1 Prakash Rao, Superintendent (Customs) and his statement Ex. P.3 was recorded. It is alleged that in statement Ex. 3. It is the case of the prosecution that on 15.3.90, a notice under section 67 of the Act was issued against appellant Gaji Khan, who appeared on 16.3.90 before PW 1 Prakash Rao, Superintendent (Customs) and his statement Ex. P.3 was recorded. It is alleged that in statement Ex. P.3, the appellant admitted that he was present at the time of alleged incident; that the seized contraband Charas and Heroin belonged to co-accused Saddiq; that on 16.2.90, Saddiq had engaged him as a driver for transporting some articles for a remuneration of Rs. one thousand; that he drove a petrol Jonga, which did not have any number plate; that from the house of Saddiq, Saddiq, Khudia and Nabi Bux went alongwith him in that Jonga and that from a place situated at a distance of about 30 K.M. on the left side of Nokh road, Saddiq, Khudia and Nabi Bux loaded some gunny bags and that on the direction of Saddiq, he had driven the said Jonga on Bap-Bikaner road. The appellant is further alleged to have stated in his statement Ex. P.3 that thereafter they reached the place of the occurrence, where Saddiq, Khudia and Nabi Bux unloaded those bags and that at that time, Saddiq had told him that those bags contained Charas and heroin; that thereupon, he (appellant) showed his resentment but Saddiq threatened him by showing a pistol and asked him not to leave that place; that thereafter an encounter took place with the Customs Officials and they fled away in the said Jonga. After completion of investigation, PW 1 Prakash Rao submitted a criminal complaint dated 11.6.90 Ex. P.4 under section. 200 (a) Criminal Procedure Code and under sections 8 (c) read with Sections 21, 22, 23 and 29 of the Act against the appellant in the court of learned MJM, Phalodi, who committed the case to the learned Sessions Judge, Jodhpur, and from where the case was ultimately transferred to the court of learned Special Judge, NDPS Act Cases, Jodhpur. 4. The learned trial Judge framed charge for the offences under sections. 8/22 and 23 of the Act against the appellant, who denied the indictment and claimed trial. The prosecution examined as many as eight witnesses. 4. The learned trial Judge framed charge for the offences under sections. 8/22 and 23 of the Act against the appellant, who denied the indictment and claimed trial. The prosecution examined as many as eight witnesses. The appellant in his plea recorded under Section 313 Criminal Procedure Code categorically denied the circumstances appearing against him in the prosecution evidence and claimed that a false case has been foisted against him. He also separately submitted his written statement under section 233 (2) Criminal Procedure Code. wherein he asserted that he was innocent; that on 27.4.88, Shri Nemi Chand, Superintendent (Customs), Shri M.L. Sera, Inspector (Customs), Nandlal, Sepoy and Rajendra, Driver of the Customs Department had come to his house situated in village Chodhariyan; that when his father Basant asked them to disclose their identity, they inflicted fist and kick blows to his father and his brother Nihal Khan and forcibly took them in their jeep to the Jaisalmer Dak Bungalow and illegally confined them in a room. They also procured their signatures on blank papers giving them threats and demanded Rs. ten thousand for releasing them; that for the said incident, his brother Nihal Khan filed a criminal complaint dated 30.4.88 Ex. D. 4 in the court of CJM, Jaisalmer against Nemichand and aforesaid officials of the Customs Department, which was sent to the S.H.O., P.S., Mohangarh and whereupon Crime No. 28/88 under sections. 385, 386, 327, 342, 323, 365 and 147 Indian Penal Code was registered and after investigation, a challan Ex. D.7 was filed against them. The appellant in his statement further stated that in the said criminal case, those Customs Officials were arrested by the police; that they filed bail application Ex. D.8 and were released by the learned CJM vide order dated 27.6.88 Ex. D.10. The appellant has further stated that due to that criminal case, the officers of the Customs Department became angry and openly threatened him that he would be implicated in some criminal case and for that, he had also sent complaint dated 10.8.89 Ex. D.11 to Collector (Customs), Jodhpur; another complaint dated 21.9.89 Ex. D.13 to the then Home Minister and Commissioner (Customs) and other officials through registered post AD vide postal receipts Ex. P.14 to Ex. P. 23 and AD receipts Ex. P. 24 to Ex. P.3D. D.11 to Collector (Customs), Jodhpur; another complaint dated 21.9.89 Ex. D.13 to the then Home Minister and Commissioner (Customs) and other officials through registered post AD vide postal receipts Ex. P.14 to Ex. P. 23 and AD receipts Ex. P. 24 to Ex. P.3D. The appellant in his statements further stated that he has been falsely implicated in this case at the instance of Nemichand, Superintendent Customs and Mr. Sera, Inspector. He also denied to have given statement Ex. P.3 and asserted that his signatures were procured thereon under duress by administering threats and even the said statements was not read over to him. He had, thus, completely disowned and retracted from the contents of statement Ex. P.3. In his defence, the appellant also examined himself as DW 3 besides DW 1 Umed Ali and DW 2 Nihal Khan. After trial, the learned trial Judge by his impugned judgment convicted and sentenced the appellant in the manner indicated above. Hence this appeal. 5. I have heard S/Shri Mridul Jain and L.D. Khatri, learned counsel for the appellant and Shri S.S.Lal, Standing Counsel for Union of India, at length and carefully perused the record of the lower court in extenso. 6. The impugned judgment has been assailed on behalf of the appellant on multiple grounds. Firstly, it has been strenuously contended that the learned Sessions Judge has not correctly examined, discussed and evaluated the evidence recorded in this case and ignored material contradictions and substantial improvements made by the prosecution during trial. Secondly, it is asserted that it was a pitch dark night; that it was not at all possible to identify any person from a distance of about 200- 300 yards even in the lights of the Gypsy; that in the Panchnama Ex. P.l, the parentage or the place of residence of the appellant or any other co-accused have not been mentioned and that on the other hand, it has been vaguely written therein that on of the officials of the Customs Department had stated that "Khudia Aur Gajida Bhi Sath Mein Hai". It has been urged that no efforts were made to apprehend the appellant till 15.3.90; that in the report dated 17.2.90 Ex. D.l under section 57 of the Act about the incident sent by PW 1 Prakash Rao, Superintendent (Customs) to the Asstt. It has been urged that no efforts were made to apprehend the appellant till 15.3.90; that in the report dated 17.2.90 Ex. D.l under section 57 of the Act about the incident sent by PW 1 Prakash Rao, Superintendent (Customs) to the Asstt. Collector (Customs), Jodhpur and Director, Revenue Intelligence, New Delhi, a different version of the alleged incident was incorporated and the name of appellant also does not find mention therein. Even in the encounter report dated 17.2.90 lodged by the Customs Department pertaining to this incident at Police Station, Mohangarh, appellant's name is conspicuously missing. It is urged that no test parade of the appellant was got conducted after his arrest from the prosecution witnesses, who admittedly did not know the appellant. Another limb of argument advanced on behalf of the appellant is that the material link evidence to show that the seals of the samples, which were alleged sealed at Canal Guest House, Phalodi on 17.2.90 remained intact and that those were not tampered with till they are received in the CRCL on 21.2.90, is missing; that the prosecution has deliberately not examined Lal Singh Bisht, Customs Superintendent, who is alleged to have handed over the sealed packets of the samples of PW 6 U.K. Verma, Inspector, who in turn took them to C.R.C.L. Even the sealed packets of seized contraband article; "Mudda Maal" have not been produced in the court and got exhibited. The malkhana entries have also not been filed and got exhibited by the prosecution. It has been argued that the alleged secret information has also not been placed before the court. It is urged that from the prosecution evidence, it is abundantly apparent that some secret information regarding the alleged transport and deal of Charas and Heroin was received by the Asstt. Collector, Customs Jodhpur and on whose directions, the Customs officials laid. `Nakabandi' and checked and searched the vehicles between 8.30 PM to 9.30/9.45 PM on 16.2.90 and in such circumstances, it was incumbent on the concerned Custom Official to have reduced that secret information in writing and to have sent the same immediately after the alleged seizure of contraband articles to his immediate official superior. Thus, there has been a total non-compliance of the mandatory provisions of Section 42 (1) and (2) of the Act and hence the entire trial has vitiated. Thus, there has been a total non-compliance of the mandatory provisions of Section 42 (1) and (2) of the Act and hence the entire trial has vitiated. It has also been vehemently contended that the alleged confessional statement Ex. P. 3 is not voluntary and truthful; that the same has been retracted by the appellant and that the learned trial Judge has committed patent illegality in relying on the said statement and convicting the appellant. 7. On the other hand, Shri S.S. Lal has reiterated the reasonings given by the learned trial Judge and supported the impugned judgment. The written arguments on behalf of the Union of India have also been filed, wherein it has been asserted that from the prosecution evidence, it stands proved beyond reasonable doubt that a huge quantity of Charas and Heroin were recovered; that at the time of the alleged occurrence, appellant alongwith co-accused Saddiq and Khudia were identified by two Custom Inspectors namely Bhanwar Singh and Anil Sharma, who knew them previously; that not holding the test parade of the appellant is not fatal in this case and that appellant had voluntarily given his statement under section. 67 of the Act; which is admissible in evidence. In the written arguments, it has been admitted that the secret information received in this case was documented. It has also been specifically mentioned therein that the said documented secret information shall be produced before the court for its perusal. But no such secret information has been submitted either for perusal nor has been placed on record & duly proved in this case. It has been asserted that a report dated 17.2.90 Ex. D. 1 under section. 57 of the Act about the incident was sent by the I.O. to the Asstt. Collector (Customs), Jodhpur Division and also Director, Revenue Intelligence, New Delhi and, therefore, the provisions of Sections 52 and 57 of the Act were complied with. It has been submitted that it was not necessary to mention the name of the appellant in report Ex. D. 1 and the encounter report dated 17.2.90 and the FIR which pertained to subsequent incident, which took place on 17.2.90 at the house of co-accused Saddiq. It has been submitted that it was not necessary to mention the name of the appellant in report Ex. D. 1 and the encounter report dated 17.2.90 and the FIR which pertained to subsequent incident, which took place on 17.2.90 at the house of co-accused Saddiq. It has been asserted that the prosecution has adduced dear and cogent evidence to show that the seals of the packets of the representative samples were not tampered with and that those remained intact till they reached the C.R.C.L. Thus, no material link evidence is missing in this case. 8. I have given my most anxious and thoughtful consideration to the rival submissions made at the bar. 9. Before I embark upon to deal with the rival contentions, first of all it will be conducive to carefully scrutinise, scan and assess the evidence recorded in this case. 10. PW 2 U.K. Verma, Superintendent (Customs), Jodhpur was incharge of the Raid party. PW 3 Bhanwar Singh and PW 4 Anil Sharma, Inspectors (Customs), Jodhpur had accompanied him and took part in laying Nakabandi near the place of occurrence on National Highway No. 15. PW 5 Dhanraj and PW 7 Mangilal are the motbirs, who were at Bap bifurcation. PW 1 Prakash Rao, was Superintendent (Customs), Phalodi, who alongwith PW 6 U.K. Verma, Inspector (Customs), Phalodi after receiving a wireless message on 16.2.90 at about 10.30 PM from PW 1 Prakash Rao reached the place of occurrence after the culprits had fled away in the Jonga. PW 8 Kedamath, was the Inspector (Customs), Phalodi, who had also accompanied PW 2 Y.P. Badhvar alonwith the raid party. 11. PW 2 Y.P. Badhvar deposed that on 16.2.90 on receipt of secret information and the direction of Shri Balesh Kumar, Asstt. Collector (Customs), Jodhpur Division, he had proceeded from Jodhpur at about 3.30 PM and reached Bap bifurcation via Phalodi at about 7.30 PM; that the raid party included Customs Inspectors PW 3 Bhanwar Singh and PW 4 Anil Sharma, M.L. Sera and S.K. Bhaskar, Manprakash, S.P. Kalra, Madan Singh Sepoy, Mangilal and Rajendra Singh, Driver. At Bap bifurcation, he procured two independent motbirs namely Dhanraj and Mangilal and thereafter reached near a culvert, which was situated about 11 kms. away from village Bap towards Bikaner side on the National Highway-15. The raid party had gone in Govt. Gypsy and started checking the vehicles for about an hour. At Bap bifurcation, he procured two independent motbirs namely Dhanraj and Mangilal and thereafter reached near a culvert, which was situated about 11 kms. away from village Bap towards Bikaner side on the National Highway-15. The raid party had gone in Govt. Gypsy and started checking the vehicles for about an hour. He stated that at about 9.30/9.45 PM, a vehicle was sighted coming from Bap side; that about a furlong away from them, the said vehicle went down off the road in the Kachha on the left side of the Highway; that when the said vehicle covered a distance of about 500 yards in `Kachha' its head lights were switched off; that for about half an hour, the raid party did not move and tried to watch the activities of the suspect vehicle, but nothing could be ascertained; that thereafter he directed Inspectors Anil Sharma and M.L. Sera to go near the suspect vehicle and gather information about its activities. He further stated that those Inspectors returned after about half an hour and informed him that the suspect vehicle was a Jonga jeep; that about four persons were standing near that vehicle and that they had also heard the spund of some articles being unloaded therefrom. This witness further stated that thereupon he formed two parties, one party consisting of Anil Sharma and M.L. Sera was directed to make advance towards the suspect vehicle on foot while he alongwith motbirs, PW 3 Bhanwar Singh Inspector and other Customs officials, slowly proceeded in the Gypsy after switching on its parking lights towards the suspect vehicle from the same Kachha route wherefrom the suspect vehicle had earlier passed. He further stated that when the Gypsy covered a distance of about 150 yards in Kachha, they heard sound of a gun shot fired from the side of the suspect vehicle; that thereupon the lights of the Gypsy were switched off and the Gypsy was stopped. After waiting for some time, the Gypsy without switching on its lights proceeded in the direction of the Jonga and when they covered a further distance of about 150-200 yards, they again heard the bang of a gun shot. He deposed that thereupon the head lights of the Gypsy were switched on and the Gypsy was driven with speed towards the suspect vehicle; that the Custom party also fired from revolver in the air. He deposed that thereupon the head lights of the Gypsy were switched on and the Gypsy was driven with speed towards the suspect vehicle; that the Custom party also fired from revolver in the air. He deposed that in the lights of the Gypsy, he saw three persons boarding in the Jonga from its rear side, while one person having a well built body, was running on foot on the left side of Jonga and that at that moment of time, somebody from the Jonga shouted "Sadiq, run away". He stated that Inspector Bhanwar Singh, who was sitting behind him in the Gypsy told that Khudia and Gajida were also there. PW 2 Y.P. Badhvar also stated that while he was proceeding towards the suspect vehicle, he had flashed a message from his wireless set to the Reserve party at Phalodi to immediately reach there. He stated that the said Jonga Jeep was driven away by the culprits without switching on its lights and that when the Customs Party reached the place of incident, two gunny bags and four H.D.E.P. bags and a pair of shoes were found lying there. He told that by that time, the Foot party led by PW 4 Anil Sharma, and the Reserve Party also reached there; that thereafter, he directed the members of the Foot party and the motbirs to keep watch on those articles and left the place of the occurrence in two Govt, vehicles in hot pursuit of those culprits, but they could not be traced. He deposed that after three hours, he alongwith the Reserve Party returned to the spot where those bags were lying; that he opened those bags and found that those contained 199 packets of Charas and that in one H.D.E.P. bag, ten packets of heroin were also found; and that thereafter he inspected the site and prepared site plan Ex. P.5 He told that since on the spot, there was no arrangement for weighing and examining the contraband articles, he got all those bags and the pair of shoes loaded in the Gypsy, wherein motbirs were sitting and took those articles and reached Canal Guest House, Phalodi at around 3.30 AM. It may be mentioned here that a bare perusal of site plan Ex. P.5 unmistakably reveals that it was prepared as per Panchnama Ex.P.l dated 16/17th Feb. 1990. It may be mentioned here that a bare perusal of site plan Ex. P.5 unmistakably reveals that it was prepared as per Panchnama Ex.P.l dated 16/17th Feb. 1990. It is an admitted position that Panchnama Ex.P. 1 was prepared and completed on 17.2.90 at 10.30 AM. It is also admitted position that it was a dark night and for that reason, it is alleged that the contraband articles were taken to the Canal Guest House, Phalodi, which is at a distance of about 30-35 kms. away from the place of occurrence. In such circumstances from the contents of site plan Ex. P.5 itself, it is evident that the statement of Y.P. Badhvar that he prepared the site plan Ex. P.5 on the spot before Panchnama Ex. P.l was prepared, is patently false and against the record.He stated that at the Canal Guest House, balance and weights for weighing the contraband articles were sent for; that 199 packets containing Charas and ten packets containing heroin were separately weighed and weightment list of those packets Ex. P.2 and Ex.P. 2/1 to Ex.P.2/7 were prepared and that the gross weight of those 199 packets of Charas amounted to 202.100 kgms, while the gross weight of ten packets of heroin weighed 10.815 kgms; that seven lots of Charas packets each having similar marks were prepared, while one bunch lot was formed of ten packets of heroin, which on examination by the aid of U.N. Drug Kit, were found to have contained same material. He deposed that two sets of samples weighing 25 grams each of Charas and two sets of samples weighing 5 gms each of heroin were taken from those packets and those were separately sealed in polythene packs. The packets of the recovered Charas and heroin were also seized and sealed in separate packets and put in different bags. He proved the panchnama Ex.P.l, memos containing details of the various marks found on the packets of Charas and Heroin Exs. P.6 and 7. In his cross examination, he admitted that in Customs Department, Rojnamcha is not maintained, but officers maintain their daily diaries. He stated that on 16.2.90, he did not receive any wireless message about the secret information but the Asstt. Collector (Customs), Jodhpur had given him oral directions to lay Nakabandi and that he did not know the contents of secret information. He stated that on 16.2.90, he did not receive any wireless message about the secret information but the Asstt. Collector (Customs), Jodhpur had given him oral directions to lay Nakabandi and that he did not know the contents of secret information. He stated that he also did not meet the mukhbir (Source). He admitted that he as also Inspectors Bhanwar Singh, Anil Sharma and M.L. Sera had their service revolvers with them alongwith cartridges. He further admitted that Customs Officers are authorised to open fire on the smugglers and their vehicles in case they try to run away and that at the time of alleged incident, his raid party did not have any arrangement for making light; that initially the suspect Jonga was sighted from a distance of 1 km.; that the members of the raid party did not put any obstacle on the road nor stand on the road; that since the suspect Jonga went down off the road in the Kachha at a distance of about 600 yards from the place of Nakabandi, they became suspicious as to way that vehicle had gone in the Kachha and, therefore, the member of the raid party watched the activities of that vehicle. He told that at that time, the raid party did neither try to stop the vehicle by surrounding the same nor they immediately approached towards that vehicle which had stopped at a distance of about 500 yards in Kaccha from the place of Nakabandi. He admitted that at that time, he did not have any search warrant for searching the said vehicle, but volunteered that it was not necessary to have the search warrant because it was an open place and if need had arisen to search the suspect Jonga then he himself would have issued the search warrant for which he was empowered. He stated that he did not know the number of that Jonga as it was dark and that when the suspect Jonga was driven away, he did not think it proper to immediately chase the same as he considered it necessary first to secure possession of those gunny bags and for that reason, the Custom Party also did not chase that person, who had fled away on foot. This explanation does not appear to me sound and satisfactory. The Customs Party consisted of about 9-10 persons. All the officers were armed with service revolvers. This explanation does not appear to me sound and satisfactory. The Customs Party consisted of about 9-10 persons. All the officers were armed with service revolvers. If in fact they had seen one culprit running on foot and others in the Jonga, their natural conduct ought to have been to chase and apprehend at least that culprit, who had fled away on foot. Hence, this conduct of the raid party appears to me quite unnatural. 12. PW 2 Y.P. Badhvar stated that he stayed on the spot for about 5-7 minutes for finding out as to what was contained in those bags, but did not prepare any memo at that time. He told that since the distance of the suspect Jonga was not within the effective range, the Customs Party did not fire. It will be pertinent to mention here that as per statement of PW S.P. Rao, on 16.2.90 at 10.30 PM, he had received the message of Y.P. Badhvar on wireless set at Phalodi that an encounter had taken place with the Customs Party and he was asked to immediately reach at the place of incident with Reserve Party; that the distance between Phalodi and the place of incident was about 46- 47 kms and that he had reached there after half an hour. Thus, the Reserve Party had reached there at-least after half an hour the culprits had fled away. Therefore, the statement of Y.P. Badhvar that the Reserve Party reached the place of occurrence within 5-7 minutes, is patently false. PW 2 Badhvar clearly admitted that in the Panchnama Ex. P.l, it was not mentioned that Inspector Bhanwar Singh had seen and identified the appellant Gajida and co-accused Khudia. It is pertinent to note that in Panchanama Ex. P.l, it has only been mentioned that the appellant and Khudia were seen by one officer sitting in the Jonga. Even in criminal complaint dated 11.6.90 Ex.P.4, it has been averred that one officer had exclaimed that Gajida and Khudia were also there. But later on the prosecution improved its version that two officers namely Bhanwar Singh and Anil Sharma had identified Gajida and Khudia. PW 2 Badhvar admitted that in Panchanama Ex. P.l neither the parentage nor the place of the residence nor the features of Gajida and Khudia have been mentioned. Fie further admitted that he had never gone to village Chodhariyan, where the appellant resides. PW 2 Badhvar admitted that in Panchanama Ex. P.l neither the parentage nor the place of the residence nor the features of Gajida and Khudia have been mentioned. Fie further admitted that he had never gone to village Chodhariyan, where the appellant resides. He pleaded ignorance as to whether in the said village, there were four person by the name of Gajida. He admitted that there is one smuggler by name Gaji alias Chhotiya r/o Jaisalmer and that he did not know any of those culprits, who had fled away. He also did not identify the appellant during trial. He did not remember whether the specimen seal impressions were given to the motbirs or not. He admitted that a report about the encounter which took place at the time of the alleged incident, was lodged at P.S., Bap but that report has not been filed by the prosecution in this case. The prosecution has thus suppressed this material document, which could throw light about the names of the culprits with whom the Customs Party had an encounter at the time of the incident. However, this witness stated that in that encounter report, it was not necessary to mention the names of the culprits and, as such, the name of the appellant was not mentioned in that report. In my considered opinion, this is not at all a satisfactory explanation for the omission of the names of appellant Gajida and other culprits to wit Khudia & Sadique, who were alleged to have been identified on the spot. As per prosecution version, there was exchange of fire between the culprits & Customs Party in the alleged encounter. Therefore, if in fact appellant and other co-accused persons Khudia and Sadique were identified during the incident, it was all the more necessary to have mentioned their names in the encounter report lodged at P.S., Bap and omission of their names in that report, raises a strong suspicion in the prosecution story and specially the fact that the appellant and other co-accused persons were identified by the Customs Inspectors during the incident. 13. It may also be pointed out here that the prosecution deliberately did not file the report of the alleged incident `Ghatna Prativedan", which was sent by PW 1 Prakash Rao, Superintendent (Customs) Range Phalodi, Investigating Officer, to Asstt. Collector (Customs), Jodhpur Division, Camp Phalodi and Director, Intelligence Revenue, Directorate, Delhi. 13. It may also be pointed out here that the prosecution deliberately did not file the report of the alleged incident `Ghatna Prativedan", which was sent by PW 1 Prakash Rao, Superintendent (Customs) Range Phalodi, Investigating Officer, to Asstt. Collector (Customs), Jodhpur Division, Camp Phalodi and Director, Intelligence Revenue, Directorate, Delhi. However, the true copy of the said report dated 17.2.90 Ex.D.l was got produced from him. This report Ex. D.l has been admitted by the prosecution witnesses. In this report, only the name of Sadique S/o Nizamuddin r/o Hindal Ka Gol has been mentioned and the name of the appellant or that of Khudia or any other co-accused does not find mention. In report Ex.D.l at portion A to B, it has been mentioned that Nakabandi was laid on the night intervening 16th and 17th Feb. 90 at about 10 kms. away from the Bap bifurcation towards Bikaner side on N.H. 15; that contraband articles were unloaded by the smugglers from Jonga and were being brought by those smugglers near the culvert on the road; that thereupon when the Customs Party raised an alarm, the smugglers opened fire and rushed towards the Jonga and taking advantage of darkness, fled away; that the Customs Party also returned fire in private defence; that none was injured; that out of those smugglers, who were fleeing away, Sadique was identified and that some other culprits had also accompanied him This portion `A to B' of report Ex.D.l has been clearly admitted by PW 1 Prakash Rao. This fact also indicates that the appellant & co-accused Khudia were not identified by Customs Party at the place of alleged occurrence. Admittedly, Prakash Rao was present, when Panchnama Ex. P.l was prepared, wherein the names of Gaji and Khudia find mention. Had appellant Gaji and co-accused Khudia been identified by Bhanwar Singh and Anil Sharma, Inspectors, then this fact must have been specially mentioned in the report Ex. D.l, which was sent under section. 57 of the Act by the I.O. to his immediate official superiors. Hence, the omission of the names of appellant Gaji and Khudia in report Ex.D.l, raises an irresistible conclusion that the appellant Gaji and Khudia were not identified by the Customs Party till report dated 17.2.90 Ex.D.l under section. D.l, which was sent under section. 57 of the Act by the I.O. to his immediate official superiors. Hence, the omission of the names of appellant Gaji and Khudia in report Ex.D.l, raises an irresistible conclusion that the appellant Gaji and Khudia were not identified by the Customs Party till report dated 17.2.90 Ex.D.l under section. 57 of the Act was sent by the I.O. and that their names have been later on added after the subsequent encounter with the Customs Party, which took place at village Hindal Ka on 17.2.90, while taking the search of co-accused Sadique. 14. PW 2 Y.P. Badhvar also pleaded his ignorance about the criminal complaint filed by Nihal Khan, the brother of appellant, against Nemichand, Superintendent (Customs) and other officials of the Customs Department as also the factum of their arrest in that case. He denied the suggestion that appellant Gajida has been falsely roped in at the instance of the said Nemichand and M.L. Sera. It is worthy to note that in this incident, M.L. Sera Inspector was also member of the raid party in this case but the prosecution has deliberately not examined him apparently to conceal the facts that previously criminal litigation launched by the appellant's brother Nihal Khan vide criminal complaint dated 30.4.88 Ex.D.4 against Nemichand, M.L. Sera etc., wherein appellant's father Basant Khan and his brother Nihal had sustained injuries vide MLRs. dated 29.4.88 Exs.D.5 and 6 and after investigation challan Ex.D.7 was filed by the S.H.O., P.S., Mohangarh against them in the court of CJM and that in that case, Nemichand and M.L. Sera had moved their bail application Ex. D.8 dated 27.4.88 and were bailed out vide order dated 27.6.88 Ex.D.10. 15. The appellant also filed complaint dated 9.8.89 & 10.8.89 Ex.D.11 and 12 respectively against Nemichand, Superintendent, M.L. Sera and other officials of the Customs Department to the Collector (Customs) and other higher officials of the Customs Department through registered post A.D. vide postal receipts Ex.D.14 to Ex.D.23 and A.D. receipts Ex.D.24 to Ex.D.30. In such circumstances, the possibility of false implication of the appellant in this case cannot be ruled out. 16. In such circumstances, the possibility of false implication of the appellant in this case cannot be ruled out. 16. PW 3 Bhanwar Singh, Inspector deposed that he was present at the time of the alleged incident and sitting on the rear seat of the Gypsy; that when the Gypsy proceeded towards the suspect Jonga by switching on its parking lights and covered a distance of about 100 yards, a gun shot was fired; that the lights of the Gypsy were switched off and the Customs Party waited for about five minutes and again proceeded towards the suspect Jonga switching off its lights and that when they had covered a distance of about 100 yards, again a gun shot was fired from the side of the Jonga and that thereupon the lights of the Gypsy were switched on and it was driven with speed towards the Jonga and that at that time in the lights of the Gypsy, he saw a Jonga; that three persons, who were running, boarded therein from its rear side and that one person from the Jonga was shouting "Sadique Bhag Sadique Bhag". Bhanwar Singh has stated that at that moment of time, he got down from the Gypsy on the direction of Shri Badhvar and fired from his service revolver in the air. But PW 2 Badhvar has not deposed likewise. It may be mentioned here that this fact also does not find mention either in the statement dated 17.2.90 Ex. 12 of this witness recorded under section. 67 of the Act or in the criminal complaint dated 11.6.90 Ex.P.4. Therefore, it is abundantly apparent that this witness has unsuccessfully tried to make a substantial improvement during trial simply to show that he had identified the appellant and other co-accused persons. Bhanwar Singh admitted that he had seen those three persons, who were boarding in the Jonga from their back side and identified two persons namely Gajida and Khudia. He clearly admitted that when the head lights of the Gypsy were switched on, the distance between the Gypsy and the suspect Jonga was 200 yards. In his cross examination, he admitted that he did not have any secret information but such an information was with Y.P. Badhvar, who was the Incharge of the raid party and under whose directions, the recovery proceedings were conducted. In his cross examination, he admitted that he did not have any secret information but such an information was with Y.P. Badhvar, who was the Incharge of the raid party and under whose directions, the recovery proceedings were conducted. He further admitted that in every case, as and when any Customs Officer returns to the headquarter, he maintains his daily diary in Form XT-1 and that in this case, he had made entries and signed in his diary XT-1 but again the prosecution has not cared to produce that diary. If that daily diary would have been submitted by the prosecution then all the facts of the incident including the fact that appellant Gaji Khan and co-accused Khudia were identified by Inspector Bhanwar Singh, could have corroborated his statement. Therefore, non-production of such a material document also raises an adverse inference against the prosecution; that no such entry regarding the alleged identification of the appellant Gaji and Khudia by this witness was incorporated therein. This fact also lends support to the contention of the appellant that he has been falsely implicated in this case later on. 17. PW 3 Bhanwar Singh further admitted that he could not see the number plate of the suspect Jonga; that the said Jonga was speedily driven away at about 10-11 PM from the place of occurrence. He further admitted that he did not know as to who was driving the said Jonga. It may be mentioned here that as per prosecution case, appellant was driving that Jonga. If he was driving that Jonga then positively he was not amongst those three persons, who boarded therein from its rear side. This witness initially failed to give any description of the culprits and about the dresses which they had put on at the time of the incident, but later on, he improved his statement and told that appellant Gaji Khan was putting on a long shirt, a `tehmad' and a white `Safe' on his head. But no other prosecution witness has corroborated this part of his statement. He admitted that he did not remember as to whether he had given any description of the face or dress of the appellant during investigation or not. He stated that the suspect Jonga had a canvas cover, but he did not see any curtain /cover on its rear side. He admitted that he did not remember as to whether he had given any description of the face or dress of the appellant during investigation or not. He stated that the suspect Jonga had a canvas cover, but he did not see any curtain /cover on its rear side. He specifically admitted that he had seen those three culprits only from there back side and that he did not fire on the tyres of the Jonga, because Shri Badhvar had not directed him to do so. He stated that the other person, who was running away on foot had also fired towards the raid party from a small firearm, but on this count also, his testimony has not been corroborated by any other prosecution witness. He also admitted that it was a dark night; that at police station, Bap, Inspector M.L. Sera had lodged a report about this encounter incident and that in that report, it was not necessary to have mentioned the name of the appellant Gaji, because that report pertained only to encounter by firearms. As mentioned earlier, if the culprits had been identified during encounter, it was essential for the Customs officials to have mentioned the names of those culprits, who had fired towards the Customs Party and non-mention of the name of the appellant in that report positively indicates that he was not at all identified at the time of the incident. This witness has further admitted that he had never gone to village Chodhariyan and that he did not know whether in that village, Gaji Khan s/o Bachhal, Gaji Khan s/o Amin, Gaji Khan s/o Bhalu Khan besides appellant Gaji Khan s/o Basant Khan reside. He also admitted that there is one smuggler by name Gaji Khan alias Chhotiya in Jaisalmer. He further admitted that he had not disclosed the description of the appellant nor his parentage nor his village when Panchnama Ex. P.1 was being prepared and it was signed by him. He also did not know as to when the appellant was arrested. He, however, denied the suggestion that appellant has been falsely roped in this case at the instance of Nemichand, Superintendent (Customs) and M.L. Sera, Inspector. The prosecution has not adduced any evidence to show that the appellant was earlier involved in any smuggling case, or was arrested therein or was interrogated by Inspectors Bhanwar Singh or Anil Sharma. He, however, denied the suggestion that appellant has been falsely roped in this case at the instance of Nemichand, Superintendent (Customs) and M.L. Sera, Inspector. The prosecution has not adduced any evidence to show that the appellant was earlier involved in any smuggling case, or was arrested therein or was interrogated by Inspectors Bhanwar Singh or Anil Sharma. Hence, in my considered opinion, the oral and uncorroborated testimony of PW 3 Bhanwar Singh and PW 4 Anil Sharma to the effect that they knew appellant Gaji Khan prior to the alleged incident lacks credence and in such circumstances, non-holding of the test parade of the appellant by them and by other members of Raid Party including Y.P. Badhvar, Kedar Nath and motbirs is entirely fatal to the prosecution. 18. PW 4 Anil Sharma also unsuccessfully attempted to make substantial improvements during trial. In his statement dated 17.2.90 Ex. P.3, recorded under section. 67 of the Act, he has not given any account about the alleged incident. On the other hand, he has stated therein that on 17.2.90, when the Customs Party had gone to the house of co-accused Sadique in Hindal Ka Gola, the villagers attacked on the Customs Party and rescued Sadique. In that statement Ex.P.3, he told that he knew the appellant Gaji Khan and Khuda Bux, who were involved in smuggling of narcotic substances and that he had seen them in Jodhpur and Jaisalmer. However, he did not give any description of I the appellant. On the other hand, in Ex.P.3, he has given the description of Khuda Bux and Sadique. He had further stated in Ex.P.3 that if appellant Gaji Khan, Khuda Bux Sadique were shown to him then he could identify them. Therefore, as mentioned earlier, in such circumstances, it was incumbent and imperative on the part of the I.O. to have got arranged the test parade of the appellant after his arrest before a Magistrate. 19. PW 4 Anil Kumar admitted that initially, when he went near the suspect Jonga he had heard the voices of certain persons and the sound of unloading some articles, but he could not see and identify any of those person, because it was a pitch dark night. 19. PW 4 Anil Kumar admitted that initially, when he went near the suspect Jonga he had heard the voices of certain persons and the sound of unloading some articles, but he could not see and identify any of those person, because it was a pitch dark night. He stated that later on when he was asked by Shri Badhvar to approach near the suspect Jonga alongwith the Foot Party, he proceeded towards the Jonga; that a bang of fire from V the side of the Jonga was heard and that when the lights of the Gypsy were switched on then in that light, he saw three persons boarding that Jonga by jumping therein from its rear side and that those persons were also firing at that time. Apparently, such is not the statement of either PW 2 Badhvar or PW 3 Bhanwar Singh. This witness has stated that he had also fired. Even no such account of the incident finds mention in criminal complaint dated 11.6.90 ES..P.4. Hence it is manifest that this witness has unsuccessfully attempted to invent a new story on this count, which cannot be relied upon. In his cross examination, he stated that he did not know as to who had received that secret information which was received by his superious. He also does not know as to who had received that secret information. He admitted that when he had reached near the suspect Jonga in the first instance and was at about 20 paces therefrom and heard the voices of some persons and sound on unloading some articles from the said Jonga, he did not open fire towards the Jonga. On the other hand, he went to Shri Badhvar and informed him about the activities of the culprit. He admitted that the Foot Party did not have any arrangement for light; that when the lights of the Gypsy were switched on, the distance between him and the suspect Jonga was 300-400 yards and that he had seen all those three culprits from their back side, when they were boarding in the Jonga. He also admitted that he had never been to the house of the appellant and did not know about his family members and whether there were four persons in village Chodhariyan by name of Gajida. He further admitted that he never made any effort to arrest the appellant. He also admitted that he had never been to the house of the appellant and did not know about his family members and whether there were four persons in village Chodhariyan by name of Gajida. He further admitted that he never made any effort to arrest the appellant. He also admitted that Panchnama Ex.P.l was scribed by PW 2 Kedar Nath, Inspector and that nobody had given any dictation to him. It is pertinent to mention here that an explanation has been given by the prosecution that since Panchnama Ex.P.l was dictated by the motbirs, the parentage and the place of residence of appellant Gaji Khan and co-accused Khudia and Sadique were not mentioned therein. In my considered opinion, this explanation is far from satisfactory and is nothing but a creature of an after thought, which cannot be accepted. 20. Motbir PW 5 Dhanraj has not supported the prosecution case and has been declared hostile. He stated that on the day of the incident, he had gone to the Bap bifurcation, where he was called by Custom Inspectors, who took him to the Rest House; that those Inspectors gave him a draft paper and asked him to write the contents of that draft paper on a separate sheet of paper in his own handwriting, which he did accordingly. It may be pointed out here that the statement of Dhanraj dated 17.2.90 Ex.P.8A alleged to have been recorded under section 67 of the Act, is written in the handwriting of Dhanraj. During trial, this witness specifically deposed that in his presence, neither any bus, jeep, or Jonga was stopped nor `checked by the Customs Party nor any articles were recovered in his presence nor any encounter and exchange of fire had taken place in his presence. In his cross examination, he however admitted his signatures on Panchnama Ex.P.l. He further deposed that the statement Ex.P.8A was in his- handwriting, but he had not voluntarily written the same. He admitted that he was also not given a copy of the letter of request Ex.P.9 and that he does not know the appellant. He stated that he was called at Canal Rest House at about 8 AM, where Customs Officers alongwith six-seven Inspectors were staying and that he was asked to copy out that draft letter. He admitted that he was also not given a copy of the letter of request Ex.P.9 and that he does not know the appellant. He stated that he was called at Canal Rest House at about 8 AM, where Customs Officers alongwith six-seven Inspectors were staying and that he was asked to copy out that draft letter. He, however, stated that he did not protest to the Customs Officers that his signatures have been taken under duress. Therefore, this witness does not help the prosecution nor he proves the factum of the alleged incident. 21. PW 7 Mangilal, motbir, stated that he was called by Custom Officers and asked to become a motbir; that he accompanied the raid party and sent to the place, where Nakabandi was laid; that at about 9-9.30 PM, a jeep was coming from Bap side, which went down off the road in the Kachha; that one of the officers of the raid party went there to find out its activities; that thereafter the Gypsy, wherein he was sitting, went towards that suspect vehicle; that he heard the sound of a gun shot; that the lights of the Gypsy were switched on and that at that time, he saw a Jonga from which somebody was shouting "Sabir Chalo Gadi Aa Rahi, Isaliye Apan Yehan Se Bhago"; that thereafter that Jonga was driven away before the Gypsy reached there and that at that time, he heard a bang of one more fire. He stated that 3-4 gunny bags were lying there and that at that time, site plan Ex.P.5 was prepared which bears his singnatures at portion C to D. However, this witness has specifically deposed that those gunny bags which were found on the spot, remained lying there throughout the night; that he was taken, to Rest House, Phalodi in the night, which is about 40 kms away from the place of incident and that on the next day morning, the Customs Party alongwith him again went to the place of the occurrence, where those gunny bags were still lying, which were brought to Rest House, Phalodi and that thereafter, those gunny bags were opened and samples of Charas' and `Heroin' were taken separately therefrom and sealed. He admitted his signatures on the Weighment lists Ex.P.2 and Ex.P.2/1 to 2/7. He also admitted to have given statement Ex.P.8. He admitted his signatures on the Weighment lists Ex.P.2 and Ex.P.2/1 to 2/7. He also admitted to have given statement Ex.P.8. It may be mentioned here that this witness has not been declared hostile by the prosecution. In his cross-examination, he admitted that the Customs officials had marked the place where those gunny bags were found lying that night and that thereafter all the Customs officials alongwith him had come to the Canal Rest House, Phalodi, where they reached at about 12.30 AM. He deposed that no custom official was left at the place of the occurrence for keeping watch on those gunny bags and that next day morning, they reached on the spot at around 9 AM and those gunny bags were brought at Phalodi Guest House on 17.2.90 at about 11 AM; that it took about 4-5 hours in weighing packets and in preparing the memos and that he was allowed to go to his house on 17.2.90 around 5 PM. He specifically stated that till he remained at Phalodi Guest House, it was not known as to whom the contraband articles belonged. He also stated that the samples of Charas and Heroin were poured in different glass bottles and those were sealed, which is apparently wrong, because it is the case of the prosecution that representative samples were sealed in polythene packs. In such circumstances, motbir PW 7 Mangilal also has not supported the prosecution story. To my mind, the learned trial Judge has committed grave error in relying on the statement of this witness and in holding that he has proved the substratum of the incident. 22. PW 1 Prakash Rao, Superintendent (Customs) Phalodi stated that on 16.2.90 at 10.30 PM, he received a wireless message that an encounter between the smugglers and Customs Party has taken place about 11 kms away from village Bap and that he was directed to reach there for the assistance of the Customs Party; that thereupon he alongwith PW 6 U.K. Verma Inspector and other staff went in a Govt vehicle and reached the place of occurrence within half an hour, where he saw Badhvar and his party; that some articles lying on the ground and that they informed him that there was an encounter; that one Jonga had speeded away in darkness and he was requested to assist Badhvar's party in tracing the culprits. He further deposed that thereupon he left some members of his staff near those articles and went in a Govt, jeep in search of the Jonga, which could not be traced; that thereafter those gunny bags and pair of shoes were loaded in a Govt, vehicle and brought to the canal Rest House, Phalodi, where those were opened and therefrom, packets of Charas and Heroin were recovered. It is pertinent to note that PW 1 Prakash Rao has investigated this case. He stated that only five samples of 25 grams each of charas and the packet of 5 gm. Heroin were taken from those packets and those were sealed separately by seal No. 1 of Superintendent (Customs), Jodhpur, whereas as per the prosecution case, two sets of seven samples of Charas and Heroin were taken. Hence on this count, the statement of this witness is against the record. This witness does not say anything about the identification of the appellant or any other accused. He deposed that on 17.2.90, all those seven samples and the seized contraband articles were deposited in the Customs Malkhana/ Phalodi and that thereafter on the same day, those samples and the recovered contraband articles were handed over to Lal Singh Bist, Customs Inspector. 23. The prosecution has neither cared to produce the said Malkhana entries of the Customs office, Phalodi nor the Malkhana Incharge nor Lal Singh Bist, who is alleged to have taken those samples and the recovered articles and deposited those in the Collector (Customs), Jodhpur Division's Office. Even entries of malkhana register of Customs Office, Jodhpur have not been produced. Non-production of these important and material documents snaps the material link of evidence. The prosecution has, thus, miserably failed to adduce clear, cogent and complete material link evidence to prove that the sealed packets of the representative samples were kept in safe custody at Phalodi Malkhana and thereafter at Collector (Customs) Division Office Jodhpur's Malkhana by L.S. Bist and till they were delivered in C.R.C.L. This basic infirmity is fatal to the prosecution. 24. PW 1 Prakash Rao stated that he deposited seven samples in the Malkhana, Phalodi, whereas as per panchnama Ex.P.l and Ex.P.2, as many as eight representative samples were ta ken. 24. PW 1 Prakash Rao stated that he deposited seven samples in the Malkhana, Phalodi, whereas as per panchnama Ex.P.l and Ex.P.2, as many as eight representative samples were ta ken. He clearly admitted that he was not present at the time of the a alleged encounter and that he had reached the place of the occurrence after the Jonga had been driven away. He admitted that he had sent the report of this incident dated 17.2.90 Ex.D.l under section 57 of the Act to his immediate official superior and that in that report, only the name of Sadique finds mention. He also admitted that contents of portion A to B of report Ex D1 written by him are correct. But at portion A to B of report Ex.D.l, a different version about the incident has been given. It has been mentioned therein that the smugglers after unloading the contraband articles from the Jonga had brought those near the culvert and the road and that on the alarm raised by Customs Officers, the smugglers opened fire and rushed towards the Jonga and taking advantage of darkness, fled away. Apparently, in the criminal complaint as also during trial, a different version of the incident has been given by the prosecution. Thus, there is a major and material contradiction of vital nature regarding alleged incident in the initial version given in report Ex.D.l, in the criminal complaint dated 11.6.90 Ex.P.4 and the statement of members of Customs Party, which makes the prosecution story highly doubtful. The learned trial Judge has conveniently ignored these aforementioned basic infirmities, inconsistencies and contradictions in the oral and documentary evidence adduced in this case. 25. PW 1 Prakash Rao also admitted that the names of appellant Gajida & Khudia were neither mentioned in report Ex.D.l nor in the encounter report dated 17.2.90, which was lodged at P.S., Bap. This fact unmistakably establishes that names of appellant Gajida & Khudia amongst those smugglers/culprits were not known to the custom officers till the evening of 17.2.90 when report. Ex.D.l under section 57 of the Act and encounter report were lodged at Police Station, Bap. 26. PW 1 Prakash Rao further admitted that from 17.2.90 to 15.3.90, he did neither make any effort to arrest the appellant nor so to his house. Ex.D.l under section 57 of the Act and encounter report were lodged at Police Station, Bap. 26. PW 1 Prakash Rao further admitted that from 17.2.90 to 15.3.90, he did neither make any effort to arrest the appellant nor so to his house. He stated that from the statement of Bhanwar Singh and Anil Sharma, Ex.P.2 and Ex.P.3 respectively, recorded under section. 67 of the Act, he was not fully convinced about the implication of the appellant and for that reason he recorded the statement of appellant Gaji Khan dated 16.3.90 Ex.P.3 under section 67 of the Act, wherein he admitted his complicity in the crime. He has, however, not stated expressly that Gaji Khan had given his statement Ex.P.3 voluntarily and that the same was not secured procured by giving threats or by putting him under duress. It was the duty of the prosecution to have led positive evidence to the effect that the statement Ex.P.3 given by the appellant-was voluntary and not secured by giving any threat or inducement to him. The appellant has retracted the alleged statement Ex.P.3 27. PW 1 Prakash Rao has refuted the suggestion that the appellant has been falsely implicated in this case at the instance of Nemichand, Superintendent (Customs), against whom appellant's brother Nihal had filed a criminal complaint. 28. PW 6 Umesh Kumar, who was Inspector (Customs), Phalodi deposed that on that day, he was on `Nakabandi' laid near Phalodi on N.H.-15, that Prakash Rao, Superintendent, Customs, received message on wireless set around 10 PM; that thereupon he accompanied Rao and reached the place of the occurrence, where senior Customs Officers were standing and some articles were lying; that he was directed to go in search of the smugglers, who had fled away, that he went in search of those persons but they could not be traced and that after three hours, he cam back to the place of the occurrence and that from there, those articles were taken to the Canal Rest House, Phalodi. He proved the Panchnama proceedings. He deposed that the samples of this case were handed over to him by L.S. Bist, Superintendent, which he took to the C.R.C.L., Delhi and submitted the receipt thereof to the Department. He proved the Panchnama proceedings. He deposed that the samples of this case were handed over to him by L.S. Bist, Superintendent, which he took to the C.R.C.L., Delhi and submitted the receipt thereof to the Department. The prosecution has also not cared to file that receipt of the C.R.C.L. This witness has also not stated that the samples, which were given -to him by Shri L.S. Bist, were in sealed condition. In his cross, examination, he admitted that from Phalodi, the place of occurrence was at about 40 kms. As per statement of PW 1 P. Rao, he had received the wireless message at 10.30 PM. Naturally in reaching the place of occurrence at-least half an hour must have elapsed. As per statement of PW 5 Y.P. Badhvar, Bhanwar Singh and Anil Sharma, the allege; incident took place around 10.30 - 10.45 PM. In such circumstances, it becomes abundantly apparent that the reserve party, consisting of P.Rao and PW 6 U.K. Verma must have reached the place of occurrence around 11-11.15 PM i.e. atleast after about half an hour, the culprits had fled away. Therefore, the statements of P.Ws. Badhvar, Bhanwar Singh and Anil Sharma to the effect that the reserve party had reached there within 5-7 minutes after the culprits had fled away from the place of the occurrence, do not appear to be correct. On the other hand, it appears that to `conceal their carelessness and inaction in not chasing the suspect Jonga and the culprit who alleged made his escape good on foot immediately. PW 3 Y.P. Badhvar, Bhanwar Singh and Anil Sharma have unsuccessfully tried to depose falsely in an effort to minimise the gap between the time when the culprits fled away from the place of the occurrence and the time when the Customs Party actually proceeded for chasing, tracing or apprehending them. 29. PW 6 U.K. Verma also admitted that he had made entries in his daily dial XT-1 about the incident, but that diary has also not been produced by the prosecution. 30. 29. PW 6 U.K. Verma also admitted that he had made entries in his daily dial XT-1 about the incident, but that diary has also not been produced by the prosecution. 30. PW 8 Kedar Nath, Inspector (Customs) has deposed that on 16.2.90, the Customs Party from Jodhpur had come to Phalodi; that he accompanied that party and reached Bap bifurcation on the same day around 7 PM; that on the direction of Shri Badhvar, he called two motbirs Dhanraj and Mangilal by giving them letter of request Ex.P.9 and that thereafter the Customs Party laid Nakabandi near the culvert situated about 11 kms. away from village Bap. He deposed that around 9.45 PM, the Customs Party sighted a light vehicle coming from the side of village Bap; that the said vehicle went down off the road in the Kachha at a distance of about 100 yards from the place of Nakabandi, whereas other P.Ws. have given this distance of about 500 yards. He stated that for about half an hour, the Customs Party watched the activities of that vehicle and that after the encounter, that Jonga was driven away by the culprits and that articles were found lying at the place of the occurrence. He does not support the statements of Bhanwar Singh, Anil Kumar and Y.P. Badhvar, nor states that the culprits shouted, "Sadique Bhag", or that "Gajida and Khudia" were identified. He is completely silent about the details of the alleged incident. He was also not declared hostile. He stated that thereafter the members of the Custom Party went in search of culprits leaving those articles in the custody of the Foot party and the motbirs; that he alongwith the Search Party returned after about three hours and then those articles were taken to the Canal Rest House, Phalodi, where the recovery proceedings were drawn. He deposed that the recovery proceedings were conducted by him and that Panchnama Ex.P.l was scribed by him. He also proved memos Ex.P.2 and Ex.P.2/1 to Ex. P.2/7, site plan Ex.P.5 and memos Ex.P.6 and Ex.P.7. He stated that the samples, which were taken from the ^contraband articles, were first of all pinned up in polythene packs and thereafter those were placed in the paper envelopes and cloth envelopes and that those were sealed. He also proved memos Ex.P.2 and Ex.P.2/1 to Ex. P.2/7, site plan Ex.P.5 and memos Ex.P.6 and Ex.P.7. He stated that the samples, which were taken from the ^contraband articles, were first of all pinned up in polythene packs and thereafter those were placed in the paper envelopes and cloth envelopes and that those were sealed. In his cross examination, he specifically admitted that all the samples remained in the custody of S.P. Rao, Superintendent (Customs), Phalodi; that those samples never remained in his possession. He also admitted that the sealed bags of the contraband articles from which the representative samples were taken, have not been produced in the court. He stated that on 20.2.90, the samples articles 9 to 16 were taken by Shri U.K. Verma for depositing them in the C.R.C.L. He admitted. that when any article is deposited in the malkhana of Customs Officer, invariably entries thereof are made by malkhana Incharge in the malkhana register, but no such entry has been filed by the (prosecution in this case. 31. Hence a close and careful scrutiny of the prosecution evidence discloses that it is replete with material contradictions, vital improvements and significant inconsistencies. This raises strong and serious suspicion about the alleged incident especially the alleged fact that the appellant was present at the time of the incident and was identified by Bhanwar Singh and Anil Sharma, Inspectors, then the there. In my considered opinion, the prosecution has utterly failed to prove beyond reasonable doubt that among those culprits, appellant Gaji Khan was also present or that he was identified at that time. On the other hand, it appears that he has been roped in in this case afterwards. From the oral and documentary, adduced by the appellant, it also stands proved that appellant's brother Nihal Khan had filed a criminal complaint dated 30.4.88 Ex.P.4, much before the alleged incident against Nemichand, Superintendent, Customs and M.L. Sera (who was a member of Foot Party in this case) and other Customs Officials; that the police arrested them in that case and later on, they were released on bail by the CJM, Jaisalmer and that a challan under sections. 365, 327, 342, 323 Indian Penal Code was filed by S.H.O., P.S., Mohangarh against them. Thus, the possibility of the false implication of appellant Gaji Khan in this case cannot be ruled out. 365, 327, 342, 323 Indian Penal Code was filed by S.H.O., P.S., Mohangarh against them. Thus, the possibility of the false implication of appellant Gaji Khan in this case cannot be ruled out. From the prosecution evidence, it also does not stand proved that statement dated 16.3.90 Ex.P.3 recorded under section. 67 of the Act alleged to have been given by the appellant was voluntary. In my considered opinion, the said confession cannot also be made the sole basis for conviction and cannot be used as a basic evidence. 32. Now I deal and decide the rival submissions raised before me.In Re: Missing Link Evidence.As mentioned earlier, the prosecution has not examined Lal Singh Bist, Inspector, in whose custody, it is alleged that the representative samples and the sealed packets of `contraband articles remained in the Malkhana of the office of the Collector (Customs), Division Jodhpur and who handed over those sealed packets of the representative samples to PW 6 U.K. Verma. Besides this, neither entries of Malkhana register of Customs Office, Phalodi, where the representative samples and the sealed packets of contraband articles were deposited on 17.2.90 nor the entries of the Malkhana register of the office of the Collector (Customs), Division Jodhpur, where those packets were kept till 20.2.90, have been filed by the prosecution in this case. PW 6 U.K. Verma has also not stated that the sealed representative samples were given to him by Shri L.S. Bist and that seals thereof were not tampered with. In the C.R.C.L. reports, which are available on the back pages of test memos Ex.P.10 to Ex.P.17, it has not been mentioned that the seals of the packets of the representative samples were found intact and that those tallied with the specimen seal impressions affixed on those test memos. In such circumstances, the material link evidence is missing in this case and the prosecution has I completely failed to prove that seals of the representative samples were not tampered with from the time of alleged recovery till they were received in the C.R.C.L. 33. In State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314 : 1980 Cr.L.R. (S.C.) 84 samples of opium in a case under section 9 A of the Opium Act, changed several hands before reaching the public analyst. In State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314 : 1980 Cr.L.R. (S.C.) 84 samples of opium in a case under section 9 A of the Opium Act, changed several hands before reaching the public analyst. Various persons in whose custody, the samples remained, were not examined by the prosecution to prove that while in their custody, the seals on the samples were not tampered with and that the seals of those samples remained intact till they were received by the public analyst. It was held that the prosecution had failed to rule out the possibility of the samples being changed or tampered with during the period of custody, a fact which has to be proved affirmatively by the prosecution and the conviction of the accused was set aside. 34. In Valsala v. State of Kerala, 1993 Cr.L.R. (SC) 333 , the seized articles were not proved to have been kept in safe custody and proper form and it was not proved beyond reasonable doubt that what was seized only was sent to chemical examiner. The Apex Court held that there was a big gap and an important link was missing; that the investigation had been perfunctory and on important aspects, the evidence of Customs Officers was highly discrepant and unconvincing, which was insufficient to conclude that what was seized from the appellant alone was sent to chemical examiner and the conviction and sentence of the appellant under section. 21 of the Act were set aside. 35. In Prem Singh v. Union of India, 1994 Cr.L.R. (Raj.) 823 , prosecution witnesses did not state in whose custody, samples remained from 11.2.88 to 15.2.88. The witness who took the sample to the laboratory, was not examined. There was no mention in the chemical examination report that the seals of the samples were intact and those tallied with the specimen seal impressions. It was held that material link evidence was missing and the appellant was acquitted for the offence under section. 8/23 of the Act. 36. Hence in view of the aforementioned well crystallised principle of procedure and law, the learned trial Judge has definitely committed a material illegality of fact as well as of law in holding that no material link evidence was missing in this case and, therefore, on this count also, appellant's conviction cannot be sustained. 37. 8/23 of the Act. 36. Hence in view of the aforementioned well crystallised principle of procedure and law, the learned trial Judge has definitely committed a material illegality of fact as well as of law in holding that no material link evidence was missing in this case and, therefore, on this count also, appellant's conviction cannot be sustained. 37. Whether the appellant could be identified at the time of incident?Admittedly it was a dark night at the time of alleged incident PW 3 Bhanwar Singh has stated that when the lights of the Gypsy were switched on, the distance between him and the suspect Jonga was 200 yards, while as per statement of PW 4 Anil Sharma, this distance was 300-400 yards. These two witnesses have admitted that they had seen three culprits boarding in the jeep from its rear side from their back in the light of Gypsy. No other prosecution witness has claimed to identify the appellant. 38. In Criminal Investigation by Dr. Hans Gross, Fifth Edition, it has been observed by the learned Author at page 159 that presuming eye sight to be normal and the light good, one is able in broad day light, to recognise (a) persons whom one knows very well, at a distance from 50 to 90 yards; when there are very particular and very characteristic signs, 110 yards; in exceptional cases upto 165 yards (b) persons one does not know very well and has not often seen, from 28 to 33 yards and (c) people one has seen only once upto 16 yards. Therefore, even in day light, a person whom one knows very well can only be recognised at a distance from 50 to 90 yards and at the most 165 yards. PW 3 Bhanwar Singh has stated that he had seen those three culprits boarding in the Jonga from the back in the light of the Gypsy. None of the prosecution witnesses has stated that the light of the Gypsy directly fell on the suspect Jonga. Therefore, in such circumstances, it was not possible for Bhanwar Singh and Anil Sharma to have identified/recognised the appellant and co-accused Khudia from a distance of 200 yards/300 to 400 yards, even in the light of the Gypsy. None of the prosecution witnesses has stated that the light of the Gypsy directly fell on the suspect Jonga. Therefore, in such circumstances, it was not possible for Bhanwar Singh and Anil Sharma to have identified/recognised the appellant and co-accused Khudia from a distance of 200 yards/300 to 400 yards, even in the light of the Gypsy. Apart from it, as mentioned earlier, in the report dated 17.2.90 Ex.D.l, which was submitted about the incident under section 57 of the Act, the names of the appellant and co-accused do not find mention. Similarly, the names of the appellant and co-accused Khudia were incorporated in the encounter report dated 17.2.90, which was lodged by Shri U.K. Verma, Inspector (Customs) at P.S., Bap about the alleged encounter, which took place, during the incident. If the appellant and other accused persons were identified at the time of the incident and as per the statements of the prosecution witnesses, they had fired towards the Customs Party; then in the normal course of conduct, their names should have been incorporated in report Ex.D.l and report lodged at P.S., Bap. Moreover, in Panchnama Ex.P.l, even the parentage and the residence of the appellant have not been mentioned. From the prosecution evidence, it is also apparent that in appellant's village Chodhariyan, there are four persons by the name of Gaji Khan. Besides this, no test parade was got conducted after the arrest of the appellant. Hence in such circumstances, I am of the considered opinion that it was not possible for PWs 5 Bhanwar Singh and Anil Kumar to have identified the appellant at the time of incident and that his name has been subsequently inserted in this case Moreover, this possibility can also not be ruled out that the Customs Officials had previous enmity with the appellant due to the criminal complaint Ex. D.4 lodged by his brother Nihal and therefore, be has been falsely implicated in this case. 39. In re: Alleged confessional statement of the appellant.From the prosecution evidence, it stands clearly established that the I.O. did not take any effective steps to arrest the appellant or to make search of his house. Statement dated 16.3.90 Ex.P.3 was recorded under section. D.4 lodged by his brother Nihal and therefore, be has been falsely implicated in this case. 39. In re: Alleged confessional statement of the appellant.From the prosecution evidence, it stands clearly established that the I.O. did not take any effective steps to arrest the appellant or to make search of his house. Statement dated 16.3.90 Ex.P.3 was recorded under section. 67 of the Act, after one month of the incident and the appellant has retracted the same and stated that he had not given such statement and that his signatures thereon were procured under threat and duress, while he was in custody of the Customs Department. 40. In a latest judgment in Shivappa v. State of Karnataka, AIR 1995 SC 980 : 1995 Cr.L.R. (SC) 61 , the Apex Court has held that a confession, if voluntary and truthfully made is an efficacious proof of guilt; that it is an important piece of evidence and, therefore, it will be necessary to examine whether or not the confession made by the appellant was voluntary, true and trustworthy. Statutory provisions dealing with the recording of confessions and statements by the Metropolitan Magistrate and Judicial Magistrates are contained in Section 164 Criminal Procedure Code and the rules framed by the High Court containing guidelines for recording of confessions. It has been observed that unless the court is satisfied that the confession is voluntary in nature, it cannot be acted upon and no further enquiry as to whether it is true and trustworthy need be made. That was a murder case. The Magistrate recording confessional statement of accused under section. 164 Criminal Procedure Code. did not make any serious attempt to ascertain the voluntary character of confessional statement. It was held that it could not be said that the confessional statement of the accused was voluntary and, therefore, the conviction of accused solely on the basis of such confessional statement was not sustainable. In that case, the Magistrate even did not put any question to the accused as to way he wanted to make a confession or as to what had prompted him to make the confession. In the instant case, PW 1 S.P. Rao in his statement has even not cared to depose that the statement made by the appellant was voluntary. In that case, the Magistrate even did not put any question to the accused as to way he wanted to make a confession or as to what had prompted him to make the confession. In the instant case, PW 1 S.P. Rao in his statement has even not cared to depose that the statement made by the appellant was voluntary. No such question was put to him as to why the appellant was making such a confessional statement or as to what had prompted him to make the confession. The appellant has retracted from the statement Ex.P.3. Therefore, this statement cannot be made the sole basis for conviction of the appellant. 41. In Sevantilal v. State of Maharashtra, AIR 1979 SC 705 : 1979 Cr.L.R. (SC) 558 , the confession was made to the Customs Officer under section. 135, Customs Act under coercion, which was subsequently retracted. It was held that such a statement was not voluntary and that the same cannot form the sole basis for conviction. 42. In Haroom Haji Abdullah v. State of Maharashtra, AIR 1968 SC 832 , it has been observed that a court should be put on caution while dealing with a statement under section 108 Customs Act (which is analogus to the provisions of Section 67 of the Act) in so far as that such a statement is distinguishable from the confession recorded by a Magistrate, who is a judicial Authority and who observes the requisite precautions while recording such a statement. The Apex Court has observed that the credibility of the statement recorded by the judicial authority is undoubtedly much higher and that this very valid distinction has to be kept in mind while assessing and relying on the statement recorded under section. 108 of the Customs Act. 43. In State of Maharashtra v. Hasmukh Hargovind Shah, 1993 Cr.L.J. 1953 , the Bombay High Court has held that though the statement under section 108, Customs Act is admissible, the court must take cognizance of the fact that the accused persons even if he had, at that point of time, not been placed under arrest or confined by the department's officers his liberty was curtailed and that therefore, all important question is to whether or not in the circumstances so placed the accused voluntary make a statement requires careful scrutiny. 44. 44. In Manindra Chandra Dey v. Cegat, 1992 (58) E.L.T. 192 (Cal.) , a statement was recorded u /s. 108 of the Act. It was held by the Calcutta High Court that the confessional statement even if found admissible, should be treated as a light weight document needing independent corroboration. 45. A similar view has been taken in State of Maharashtra v. Sayed Mohamed Hashim Al Musavi, 1991 (51) E.L.T. 41 , by the Bombay High Court, wherein it has been held that the retracted confessional statement need not be relied upon without independent and full corroboration. 46. In Union of India v. Abdul Kadar Abdul Gani Hasmani, 1991 (55) E.L.T. 497 , the confessional statement was recorded under section. 107, Customs Act after much delay of the alleged seizure. It was held that such a statement was not voluntary as three was no rebuttal to the application filed by the accused, wherein it had been mentioned that his statement was taken by giving threats and under duress. 47. In Chandrakant Chimanlal Desai v. State of Gujarat, 1992 SCC (Cr.) 157 : 1992 Cr.L.R. (SC) 235 the Apex Court has held that a confession can be used in support of other evidence. Therefore, the court should first marshal the evidence against the accused excluding the confession from consideration and that if on such consideration, conviction can safely be based then only the confession can be used to support that belief or conclusion. In that case, the confession was retracted by the accused when questioned under section. 313 Criminal Procedure Code. The prosecution made the confessional statement as the basis and then looked for corroboration and to conclude that the confession was corroborated by the material particulars of the prosecution witnesses. It was held that such an approach was erroneous. 48. In the case on hand, the appellant appeared before Shri Rao on 16.3.90. It is alleged that he made statement on the same day and thereafter he was arrested. As mentioned earlier, prior to that, the appellant had filed complaints dated 9.8.89,10.8.89 and 21.9.89, Exs. D.11, 12 and 13 respectively, against Shri Nemichand and M.L. Sera, alleging that he has been threatened by Customs Authorities that he would be falsely implicated in some criminal case. In such circumstances, such a retracted statement which does not appear to be voluntary, cannot be made the sole basis for conviction. D.11, 12 and 13 respectively, against Shri Nemichand and M.L. Sera, alleging that he has been threatened by Customs Authorities that he would be falsely implicated in some criminal case. In such circumstances, such a retracted statement which does not appear to be voluntary, cannot be made the sole basis for conviction. The confessional statement under section. 67 of the Act is also not identical to the plea of the accused, where he pleads guilty to a charge of an offence before a criminal court. This is a wrong approach that unless circumstances are made out to show that the confessional statement is not voluntary one, the same would be taken as voluntary. On the other hand, the approach should be whether there are circumstances indicating the confessional statement to be a voluntary one. It is also important to visualise the state of mind of a person in question, how much time had elapsed from the event of search and seizure, whether pressure and fear of the officers was removed from the mind of the person making such statement, his physical condition and whether he was in restrain in effect or was labouring under the impression of being under arrest. 49. In the instant case, the learned trial Judge has mainly relied on the statement Ex.P.3 recorded under section, 67 of the Act, though the facts mentioned therein, have not been corroborated by any legal and reliable evidence. Hence statement Ex.P.3 can not be made basis for the conviction of the appellant. 50. Therefore, keeping in view the evidence recorded in this case, the prosecution has miserably failed to prove that the confessional statement dated 16.3.90 Ex.P.3 recorded under section 67 of the Act was voluntarily made by the appellant and that it was without threat and duress and trustworthy. On the other hand, this statement has been retracted by the appellant and the prosecution has failed to connect the appellant with the crime as also the possession of the contraband articles. In such circumstances, his statement Ex.P.3 cannot be used for his conviction and the approach of the trial court on this count is clearly erroneous and, as such, the conviction of the appellant on the basis cannot be sustained. 51. In Re: Recovery of contraband not effected at the place of incident. Shafiq Ahmad v. State of U.P., 1990 (1) E.F.R. 125 , was a case under section. 51. In Re: Recovery of contraband not effected at the place of incident. Shafiq Ahmad v. State of U.P., 1990 (1) E.F.R. 125 , was a case under section. 8/20 of the Act. The recovery of Charas was alleged to have taken place at Charbagh Railway Station, but recovery memo was prepared at another place after four hours. It was held by Allahabad High Court that such a recovery was doubtful and that the recovery evidence could not be relied upon. In that case, the confessional statement recorded under section 67 of the Act was also retracted by the accused in the court. It was alleged by the accused that such a confessional statement was extracted from him under duress. It was held that the possibility could not be ruled out that circumstances were so created for the accused that he was compelled to make a confessional statement; that a confessional statement can only be used as a corroborative evidence but in the absence of any positive and substantive evidence, it would be highly unsafe to act upon confessional statement. 52. In the case on hand, the recovery of contraband articles was made at a distance of 40 kms, from the place of incident. There is no reliable evidence to connect the appellant with the recovery of the contraband articles. His presence at the time of the incident has also not been proved beyond reasonable doubt. In such circumstances, the retracted confessional statement of the appellant and also Panchnama Ex.P.l cannot be made the basis for his conviction.Faulty Investigation:In this case, recovery memo Ex.P.l was not prepared on the spot. The alleged to have been recovered contraband articles were taken to Canal Rest House, Phalodi, which is at a distance of about 40 kms. On the other hand, PW 2 Y.P. Badhvar has asserted that he inspected the site at about 1-2 AM in the night and prepared site plan Ex,P.5 in the light of Gypsy. In the site plan, the place from where Bhanwar Singh and Anil Sharma had identified the appellant and other co-accused persons and their respective distances have not been shown. In the site plan Ex.P.5 itself, it has been mentioned that it was prepared in pursuance to the Panchnama dated 16th and 17th Feb. In the site plan, the place from where Bhanwar Singh and Anil Sharma had identified the appellant and other co-accused persons and their respective distances have not been shown. In the site plan Ex.P.5 itself, it has been mentioned that it was prepared in pursuance to the Panchnama dated 16th and 17th Feb. 1990, Ex.P.l. Therefore, it stands well proved that site plan Ex.P.5 was prepared after Panchnama Ex.P. 1 Moreover, if the site plan could have been prepared on the spot, there was nothing to prevent the Customs Officers, who were armed with service revolvers; and the raid party consisted of more than a dozen officials either to have prepared the recovery memo then and there on the spot in the night and to have prepared the same waiting for a few hours these early in the morning. It appears that at the time of the alleged encounter, the identity of the culprits was not known though a huge quantity of Charas and Heroin was found lying at the place of the occurrence.54. The pair of shoes is alleged to have been lying on the spot, which was seized and sealed, but no mould of those shoes were prepared nor the foot moulds of appellant or other co-accused persons were taken nor those were sent for comparison to the expert to establish that the said pair of shoes belonged to the appellant or any other co-accused. No identification parade of the appellant was got conducted from PW 2 Y.P. Badhvar, PW 5 Dhanraj, PW 7 Mangilal and PW 8 Kedar Nath; Inspector, who were allegedly present at the time of the incident and who did not know the appellant or other co-accused persons previously. Therefore, it was incumbent upon the I.O. to have got conducted a test identification parade of the appellant and failure to do so, also raises an adverse inference against the prosecution and makes the prosecution case doubtful.55. In re: Non-compliance of Section 42, NDPS Act.From the statements of PW 2 Y.P. Badhvar. PW 3 Bhanwar Singh and PW 4 Anil Sharma, it stands firmly established that a secret information was received by Balesh Kumar, Assistant Collector (Customs), Jodhpur Division and in pursuance thereof, Nakabandi was laid to detain and search the conveyance, which passed through the place of Nakabandi on N.H. 15. PW 3 Bhanwar Singh and PW 4 Anil Sharma, it stands firmly established that a secret information was received by Balesh Kumar, Assistant Collector (Customs), Jodhpur Division and in pursuance thereof, Nakabandi was laid to detain and search the conveyance, which passed through the place of Nakabandi on N.H. 15. The alleged search of the vehicles was being conducted after sun set and before sun rise. It was not a case of accidental or chance recovery of the contraband articles. In such circumstances, it was incumbent upon the authority, who received the secret information to have taken down in writing under section. 42 (1) of the Act and to have forthwith sent a copy thereof to his immediate official superior. The prosecution has not cared to examine Shri Balesh Kumar, Assistant Collector, Jodhpur Division, who is alleged to have received the said secret information.56. The learned Standing Counsel for Union of India in his written arguments has specifically mentioned that such secret information was documented and that the same shall be produced for perusal of the court, but no such secret information has been produced before the court nor got duly proved.57. It is needless to mention that the provisions of the Act are very stringent and, as such, the mandatory provisions of Section 42 (1) and (2) of the Act have to be strictly complied with because it affords an effective check on the arbitrary and capricious action on the part of the empowered or authorised officers under Section 41 of the Act, to ensure that innocent persons are not unduly harassed and they may not be falsely implicated later on at the whims and fiat of investigating officer.58. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872 : 1994 Cr.L.R. (SC) 241 , which has been followed in Mohinder Kumar v. State of Panaji, AIR 1995 SC 1157 , it has been reiterated that the provisions of Section 42 (1)& (2) of the Act are mandatory in character and that violation thereof vitiates the trial.59. In the instant case, by not filing the documented secret information in pursuance of which the Nakabandi was laid, there is positively a non compliance of Section 42 of the Act and on that count also, the conviction of the appellant cannot be sustained. In the instant case, by not filing the documented secret information in pursuance of which the Nakabandi was laid, there is positively a non compliance of Section 42 of the Act and on that count also, the conviction of the appellant cannot be sustained. As mentioned earlier on merits also, the prosecution has palpably failed to successfully bring home the offence under section. 8/20 of the Act against the appellant.60. Hence refracted from any angle, it can safely be concluded that the learned trial judge has positively committed an illegality of fact as well as law in holding the appellant guilty for the offence under section 8/20 of the Act and, as such, the impugned judgment cannot be sustained.61. The upshot of the above discussion is that this appeal is allowed, the conviction and sentence imposed upon the appellant Gazikhan are set aside and he is acquitted of the offence under section 8/20 of the Act. The appellant, who is in jail, be forthwith released, if not required in any other case. The jail authorities be immediately informed accordingly.Appeal allowed. *******