JUDGMENT 1. - This appeal has been directed against the judgment dated 23.1.92 passed by the leanred Special Judge, N.D.P.S. Act Cases, Jaisalmer whereby he convicted the appellant for the offence under Section 20 of the N.D.P.S. Act, 1985 (in short, `the Act') and sentenced him to R.I. for twelve years and a fine of Rs. one lac and in default of payment of fine, to further undergo R.I. for three years. 2. The factual matrix of this case can be briefly summarised like this. It appears that on 1.10.88, PW 5 Pratap Singh, S.H.O., P.S. Jaisalmer, received a source information to the effect that Annu Khan (appellant) and Khudu Khan (co-accused) deal in smuggled Charas and sell it to foreign tourists in the town of Jaisalmer, that they keep the Charas concealed in the Jungle; that they take out and bring the same in the town of Jaisalmer as per demand;, that they would bring `Charas' from the Jungle; that if Nakabandi is laid near Peer Ki Jaal, Dargaah, they can be apprehended. Thereupon, he alongwith PW 3 Dal Singh, H.C., proceeded from the Police Station, took PW 1 Tulchha Ram, F.C., and PW 2 Mohanlal F.C.S., from the Police outpost and reached in the jungle near the said Dargaah. It is alleged that the police party sat behind the bushes concealed their presence; that at about 5.45 PM, the police party saw two persons coming from the hill side i.e. the southern side of the said Dargah; that those persons came near the police party who identified them as Annu Khan (appellant) and Khudu Khan, co-accused, as they were allegedly known to them previously; that Annu Khan was a carrying gunny bag on his left shoulder, while Khudu Khan was empty handed; that the police party came out from the bushes and called Annu Khan and Khudu Khan by their names and that thereupon the appellant threw away that gunny bag and made good his escape alongwith co-accused Khudu Khan in the ravines. That gunny bag was opened wherein sixteen resin slabs of Charas were found wrapped in plastic bags. Those Charas slabs were weighed separately and their total weight amounted to 16 kg 290 gms. Representative samples weighing 30 gms. each were drawn from each packet and sealed. That gunny bag was opened wherein sixteen resin slabs of Charas were found wrapped in plastic bags. Those Charas slabs were weighed separately and their total weight amounted to 16 kg 290 gms. Representative samples weighing 30 gms. each were drawn from each packet and sealed. Those packets werer marked A-l to P-l. The remaining Charas was also seized and sealed separately in the gunny bag and recovery memo Ex. P. 1 was prepared. However, no site plan was prepared on that day. It is the case of the prosecution that the police party hotly pursued the appellant and the co-accused, but they could not be apprehended. Pratap Singh returned to the police station at 8.30 PM and drew FIR Ex. P. 8. The sealed gunny bag of the seized Charas and packets of representative samples were kept in the Malkhana of the Police Station. On 15.10.88, the sealed packets of the representative samples were handed over to PW 6 Kailash Dan, F.C., alongwith a forwarding letter Ex. P. 9, who took those to the S.P. office, Jaisalmer and thereafter to the State F.S.L., where he deposited them vide F.S.L. receipt dated 21.10.88 Ex. P. 6. Co-accused Khudu Khan and appellant Annu Khan were arrested as late as on 21.1.89 and 27.2.89 vide arrest memos Ex. P. 12 and Ex.P. 11 respectively. The Dy. Director State F.S.L., Rajasthan, Jaipur, after chemical & microscopic examination vide his report dated 29.11.88 Ex. P. 10 opined that each of those samples was that of Charas. After investigation, a challan was filed against the appellant and co-accused Khudia in the Court of learned CJM, Jaisalmer, who in turn committed the case to the learned Special Judge, NDPS Act Cases, Jaisalmer. 3. The appellant and co-accused Khudu Khan, were charged for the offence under Section 20 of the Act, who pleaded not guilty and claimed trial. The prosecution examined as many as six witnesses. The appellant in his plea recorded under section. 313 Criminal Procedure Code denied the circumstances appearing against him in the prosecution evidence, refuted that he was sighted by the police party carrying a gunny bag or that the contraband Charas was recovered from his possession and asserted that a false case has been foisted against him. Khudu Khan also denied the indictment. However, no witness was examined in defence. Khudu Khan also denied the indictment. However, no witness was examined in defence. The learned Special Judge by his impugned judgment acquitted co-accused Khudu Khan, but convicted and sentenced the appellant in the manner indicated above. Hence this appeal. 4. I have hared Mr. Manish Shishodia, learned counsel for the appellant and Mr. D.S. Rathore, learned Public Prosecutor at length and carefully perused the record of the lower Court in extenso. 5. Mr. Manish Shishodia has assailed the impugned judgment on multiple grounds. He has contended that Pratap Singh, who effected the recovery of the alleged contraband article and lodged the FIR as a complainant, has himself conducted investigation in this case offending the basic tenets of criminal trial, which constitutes a serious infirmity and on this ground alone, the trial has vitiated. The next limb of his argument is that Pratap Singh neither reduced in writing the source information nor sent a full report of the particulars of the impugned seizure within forty eight hours to his immediate official superior and thus, there is non-compliance of mandatory provisions of Section 57 of the Act. which has caused substantial prejudice to the appellant. He has urged that in this case, independent motbirs were deliberately not taken by the I.O. and, therefore, there is also a total non-compliance of the provisions of Section 51 of the Act read with Sections 100 and 165 Criminal Procedure Code, which has remitted in palpable oscarriage of justice. Pratap Singh also did not care to prepare the site plan on the day of the alleged incident and that the same was prepared on 16.3.89, i.e. after about five and a half months, which has also caused substantial prejudice to the appellant. He has asserted that the weights of the representative samples sent by the I.O. and the weights of the samples received by the State F.S.L. also did not tally and there were material variations in the weights of many packets of those samples and that the explanation offered by Pratap Singh on this count is far from satisfactory. He has submitted that there is material contradiction in the testimony of the prosecution witnesses regarding the letters engraved on the seal and seal impressions; that neither any seal impression was marked on the Malkhana Register nor on the Road certificate Ex. He has submitted that there is material contradiction in the testimony of the prosecution witnesses regarding the letters engraved on the seal and seal impressions; that neither any seal impression was marked on the Malkhana Register nor on the Road certificate Ex. P. 4 nor on the forwarding letter sent by the S.H.O. to the S.P. nor on the forwarding letter sent by the S.P. to the State F.S.L. nor on the F.S.L. report. Therefore, in this case, material link evidence is missing and the prosecution has miserably failed to prove beyond reasonable doubt that the seals of the representative samples remained intact and that those were not tampered 1 with. Mr. Shishodia has also argued that the prosecution evidence is replete with material contradictions and inconsistencies, but the learned trial Judge has conveniently ignored those and committed an illegality of fact as well as of law in convicting and sentencing the appellant. 6. On the other hand, Mr. D.S. Rathore, has reiterated the reasonings given by the learned trial Judge and urged that provisions of Sections 51 and 57 of the Act and those of Sections 100 and 165 Criminal Procedure Code are not mandatory and, as such, non-compliance thereof is not fatal to the prosecution case. 7. I have bestowed my thoughtful consideration to the rival submissions made at the bar. 8. Before I proceed to deal with the various contentions raised before me. I propose first to scrutinise, scan and evaluate the evidence adduced in this case. PW 1 Tulchha Ram and PW 2 Mohanlal, F.Cs., were posted at Police Outpost, town Jaisalmer on the day of the incident. PW 1 Tulchha Ram deposed that on that day, Pratap Singh, SHO, came to the police Outpost and asked him and Mohanlal to accompany him; that they reached near Dargah Peer Ki Jaal and laid a Nakabandi and that at that time, Pratap Singh did not inform him about the details of the source information pertaining to Annu Khan and Khudu Khan. He disowned portion A to B of his police statement Ex. P. 1, wherein he had stated that the S.H.O. had told him that he had an information that Annu Khan and Khudu Khan shall bring Charas. He disowned portion A to B of his police statement Ex. P. 1, wherein he had stated that the S.H.O. had told him that he had an information that Annu Khan and Khudu Khan shall bring Charas. He deposed that at about 6 PM, he saw two persons coming from the southern side; that one of those persons was appellant Annu Khan and another was co-accused Khudu Khan; that they were coming on foot; that `Annu Khan had a gunny bag; that when Pratap Singh challenged them, they took an about turn and after throwing the gunny bag, ran away. He further deposed that the members of the police party also chased them immediately, but they could not be apprehended because they were at a great distance. He stated that thereafter that gunny bag was opened, wherefrom 16 slabs of Charas were recovered; that those slabs were weighed on the spot; that each one of those slabs weighed approximately 1kg and that samples weighing 30 gms. each were drawn from those packets and sealed in separate packets and that the seized slabs of Charas were also sealed in the gunny bag separately and recovery memo Ex. P. 1 was prepared, which was also signed by him. He stated that the said seal was of the Police Station, wherein letters RSJMR were engraved. In his cross examination, he told that he had seen those two persons from a distance of about 20-30 paces; that the police party hotly pursued them for about half km. and that since it was raining, there were shrubs and the sun had also set, therefore, the accused persons were not visible. He specifically stated that the site plan was prepared by Pratap Singh, SHO, on the spot on the same day, but no such site plan has been filed by the prosecution. On the other hand, site plan dated 16.3.89 Ex. P. 2 has been filed, which is shorn of material details. 9. He specifically stated that the site plan was prepared by Pratap Singh, SHO, on the spot on the same day, but no such site plan has been filed by the prosecution. On the other hand, site plan dated 16.3.89 Ex. P. 2 has been filed, which is shorn of material details. 9. PW 2 Mohanlal, F.C., deposed that on the day of the incident, the police party reached near the Dargah at about 5 PM and sat near the `Jal' bushes; that at about 5.45 PM, Annu Khan and Khudia, who were previously known to him, came from the southern side; that the appellant was carrying a gunny bag; that Pratap Singh challenged them; that thereupon, they ran away after leaving the gunny bag there; that the gunny bag contained 16 packets of Charas and that from each of those packets, representative samples, weighing 30 grams each were taken and that those were sealed. He proved recovery memo Ex. P. 1 and identified his signatures thereon. However, in his cross examination, he stated that Pratap Singh had told him as also to Tulchha Ram near the Octroi Post, Jaisalmer about the contents of source information regarding Charas and asked them to accompany him. Thus, there is material contradiction in the statements of Tulchha Ram & Mohanlal on this count. Both these witnesses specifically admitted that near the police Outpost as also near the Octroi Post, there is `Abadi'; that private persons are always available there and that no independent motbirs were taken by Shri Pratap Singh. Mohanlal stated that he had seen the accused persons from a distance of about 20-30 paces; that they were hotly pursued by the police party, who made good their escape in the ravines. He admitted that he as well as PW 1 Tulchha Ram are sportsmen; that they had chased the accused persons on foot for a distance of about 8-9 kms and that thereafter it became dark and accused persons could not be apprehended. He further stated that in the night also, the police had laid Nakabandi for arresting the accused persons and gone three-four times in village Polji Ki Deyri. where appellant resides and also to the house of co-accused Khudia but they were not available. He further stated that in the night also, the police had laid Nakabandi for arresting the accused persons and gone three-four times in village Polji Ki Deyri. where appellant resides and also to the house of co-accused Khudia but they were not available. He further admitted that no civil person was taken as a motbir; that he did not know whether some `Fakir; was available in the Dargah or not. He invented a new story and told that when the accused persons ran away seeing the police party, the gunny bag, which was thrown by them, was placed in the police jeep, wherein the driver was sitting. However, the prosecution has not cared to examine jeep driver Hamir Singh. PW 2 Mohanlal thereafter changed his version and stated that accused persons after seeing the police party had run away after leaving the gunny bag and that the police part) first seized the contraband article, prepared the recovery memo and sealed the packets and thereafter had gone in search of the accused persons. This part of his statement has not been corroborated by any prosecution witness. He stated that it took about 30-45 minutes in preparing the recovery memo and sealing the packets. 10. PW 3 Dal Singh, H.C., deposed that he accompanied Pratap Singh, S.H.O. in the police jeep and reached police Outpost, wherefrom Mohanlal and Tulchha Ram, F.Cs., were taken. He deposed that after reaching near Peer Dargah, a Nakabandi was laid; that the members of the police party sat behind the bushes; that after sometime, two persons were sighted, who were Annu Khan and Khudu Khan; that Annu Khan was carrying a gunny bag on his left shoulder and that when those accused persons were asked to stop, they fled away after throwing the said gunny bag on the ground and that wherefrom 16 slabs of Charas were recovered. He deposed that those accused persons could not be apprehended and that after reaching the police station, the S.H.O. registered the crime and deposited the sealed packets of the representative samples and recovered Charas in the Malkhana. He also stated that site plan Ex. P. 2 was prepared on the spot which is not true. He deposed that those accused persons could not be apprehended and that after reaching the police station, the S.H.O. registered the crime and deposited the sealed packets of the representative samples and recovered Charas in the Malkhana. He also stated that site plan Ex. P. 2 was prepared on the spot which is not true. In his cross examination, he admitted that no civilian was taken alongwith the police party as a motbir; that near the police station and petrol pump, there were shops and `Abadi', where civilians were available. He stated that when the accused persons ran away, it was not dark but since the topography of that place was uneven (Ubad Khabad), they could not be apprehended. He stated that the police party had run after those accused persons for a distance of about one km, and that the police party had firearms. He told that the accused persons had run away towards the southern side of the Dargah towards Sehron Ki Dhani. He deposed that after recovery of the contraband articles, the police party had gone to the Sehron Ki Dhani and in the nearby areas but the accused persons could not be found. But no other prosecution witness has stated likewise. This witness in most unambiguous and clear terms admitted that the contraband Charas was not recovered from the possession of any of those accused persons but the same was found lying on the earth. It may be mentioned here that in the index of the site plan Ex. P.2 at portion C to D, it has been mentioned that the Charas was recovered from the possession of accused persons from the bushes inside the Nala at place marked `A'. When this witness was confronted with portion C to D, he specifically deposed that the contents of portion C to D of site plan Ex. P. 2 were not correct and that the contraband Charas was neither recovered from the possession of the accused nor from the Nala. Thus, there is a material contradiction in his statement and the contents of site plan dated 16.3.89, Ex. 2. 11. PW 3 Dal Singh further deposed that the distance between the police party and the accused persons was about 400 yards and that when the police party chased them, the said distance further increased. Thus, there is a material contradiction in his statement and the contents of site plan dated 16.3.89, Ex. 2. 11. PW 3 Dal Singh further deposed that the distance between the police party and the accused persons was about 400 yards and that when the police party chased them, the said distance further increased. Thus, as per his testimony, the accused persons were not sighted by the police party at a distance of 30-40 paces but at a distance of about 400 yards. The alleged incident took place on 1.10.88. As per statement of PW 1 Tulchha Ram, at that time, it had become dark. The accused persons are alleged to have been seen by the police party at about 5.45 PM. It was also raining at that time. Therefore, in such circumstances, it does not appear natural and probable that the police party had identified the accused persons from a distance of about 400 yards. PW 3 Dal Singh further deposed that the place where the contraband Charas was recovered, was an open place accessable to one and sundry; that neither any foot prints were lifted from the place of occurrence nor any memo of the foot prints was prepared. In site plan Ex. P. 2, no foot print/marks have been shown. Therefore, `the testimony of this witness makes the prosecution story doubtful. 12. PW 5 Pratap Singh, S.H.O., deposed that on 1.10.88, he received a source information; that thereupon he alongwith Dal Singh, H.C., Hamir Singh driver and Mohanlal and Tulchha Ram, F.Cs. reached near Peer Ki Dargah at about 5 PM and laid a Nakabandi. He stated that at about 5.45 PM, he saw two persons coming from the side of Dargah, which is on the northern side of the place of incident; that when those persons came near, they were identified as Annu Khan r/o Polji Ki Deyri and Khudu Khan r/o Sehron Ki Dhani. This statement of Pratap Singh clearly contradicts the testimony of PW 1 Tulchha Ram, PW 2 Mohanlal and PW 3 Dal Singh, who have unanimously stated that the accused persons were coming from the hill side. This material contradiction further makes the prosecution story doubtful. 13. This statement of Pratap Singh clearly contradicts the testimony of PW 1 Tulchha Ram, PW 2 Mohanlal and PW 3 Dal Singh, who have unanimously stated that the accused persons were coming from the hill side. This material contradiction further makes the prosecution story doubtful. 13. PW 5 Pratap Singh SHO further deposed that appellant Annu Khan was carrying a gunny bag on his left shoulder; that when the accused persons came near, he asked them to stop by naming them and that thereupon appellant Annu Khan threw that gunny bag and ran away alongwith Khudu Khan; that the said gunny bag was opened wherein sixteen slabs containing black & brown coloured resin in plastic bags were found; that those slabs smelt that of Charas; that appellant Annu Khan and Khudu Khan did not have any valid licence and, as such, the said Charas was seized by him. It may be mentioned here that as per prosecution case, the accused persons had fled away after they were challenged by the police party and that no conversation had taken place between them and the police party. In such circumstances, the statement of this witness to the effect that the appellant Annu Khan and Khudu Khan did not have any valid licence for the said Charas and, as such, the same was taken in the police custody, appears to be bit out of context and quite unnatural. 14. Pratap Singh stated that the said Charas was weighed and its total weight was 16.290 kgms.; that from those slabs of Charas, representative samples of 30 grams each were taken in separate packets, which were marked A-l to P-l and sealed; that remaining contraband article was placed in the gunny bag and sealed separately and recovery memo Ex. P. 1 was prepared. He admitted that he forgot to prepare the site plan on the day of the incident, which he subsequently prepared on 16.3.89. He stated that thereafter he alongwith the seized articles reached the police station, made entries in the Rojnamcha Ex. P. 7, drew FIR Ex. P. 8 and registered the case. It may be mentioned here that original Rojnamcha Register containing entries Ex. P. 7 was not produced before the trial Court. On the other hand, Pratap Singh stated that the original Rojnamcha had been destroyed and that a certified copy Ex. P 7 A of Rojnamcha report was filed. P. 7, drew FIR Ex. P. 8 and registered the case. It may be mentioned here that original Rojnamcha Register containing entries Ex. P. 7 was not produced before the trial Court. On the other hand, Pratap Singh stated that the original Rojnamcha had been destroyed and that a certified copy Ex. P 7 A of Rojnamcha report was filed. Rojnamcha Aam (Daily Diary) of a Police Station is an important register and it is not weeded out early. No evidence has been led by the prosecution as to when and under whose orders, the original Rojnamcha of Police Station, Jaisalmer dated 1.10.88 was weeded out. Moreover, no permisiion of the trial Court for adducing the secondary evidence for proving the Rojnamcha entries Ex. P. 7A was sought by the prosecution. In such circumstances, the copy of the alleged Rojnamcha Ex. P. 7A was not duly proved in the trial Court in accordance with the provisions of the Evidence Act, and; as such, it is not admissible in evidence. 15. PW 5 Pratap Singh stated that he had arrested appellant Annu Khan and co-accused Khudu Khan vide arrest memos Ex. P. 11 and Ex. P12 on 27.2.89 and 21.2.88 respectively. The appellant was thus arrested after about four months of the alleged incident. It is also pertinent to note that in this case, vide original Road certificate dated 15.10.88,16 sealed packets of the representative samples marked A-l to P-l alongwith certain documents were sent to the S.P., Jaisalmer through PW 6 Kailash Dan, F.C. But the said original Road certificate has also not been produced but a copy thereof has been marked as Ex. P. 4 Again, the prosecution has failed to prove the factum of the loss of original Road certificate of Ex. P. 4 or the fact that the said document was not traceable and did not procure requisite permission by the trial Court for adducing secondary evidence to prove the contents of that Road Certificate. In such circumstances, certified Copy of the Road Certificate Ex. P. 4 is also not admissible in evidence. But the learned Sessions Judge has conveniently ignored these material facts and committed an illegality in relying on documents Ex. P. 7A and Ex. P. 4. 16. In such circumstances, certified Copy of the Road Certificate Ex. P. 4 is also not admissible in evidence. But the learned Sessions Judge has conveniently ignored these material facts and committed an illegality in relying on documents Ex. P. 7A and Ex. P. 4. 16. PW 5 Pratap Singh has not uttered a single word as to whether the police party had hotly chased/pursued the accused persons immediately after they allegedly ran away after throwing the gunny bag. In his cross-examination, he admitted that the accused persons were not arrested on the spot; that he procured the warrant of arrest for the appellant and arrested him on 27.2.89. He stated that he had sent the report under section. 57 of the Act about the alleged incident and the recovery to the S.P., Jaisalmer through wireless on the next day. He admitted that a copy of the said wireless message was retained at the police station. However, no copy of the said wireless message has been filed by the prosecution in this case. Hence the provisions of Section 57 of the Act have not been complied with in this case. 17. Pratap Singh also admitted that the impression of the seal by which packets of representative samples and the gunny bag containing the contraband Charas were sealed, were neither affixed on the relevant entry of the Malkhana register of Police Station nor on the Road Certificate nor on forwarding letter Ex. P. 5. He admitted that the place of occurrence was about 6-7 kms away from Jaisalmer and about 4-5 kms. away from the Jat Colony. He stated that since no private person was available near by the place of occurrence, no civilian was taken as a motbir but as per testimony of PW 1 Tulchha Ram, PW 2 Mohanlal and PW 3 Dal Singh, there was `Abadi' near the police Outpost, Petrol Pump and Octroi Outpost and that Pratap Singh had not taken any civilian as a motbir. This witness again changed his statement and deposed that he did not take the motbirs with him because in the Nakabandi, they had to sit for hours together. Apparently, this is a manufactured explanation, which is a creature of after thought and that too, is not satisfactory. This shows that Pratap Singh deliberately did not take an independent motbir with him and the explanation given by him on this count is false. Apparently, this is a manufactured explanation, which is a creature of after thought and that too, is not satisfactory. This shows that Pratap Singh deliberately did not take an independent motbir with him and the explanation given by him on this count is false. During cross examination, he admitted that the police party had chased the culprits for a distance of about one and a half two kms., but they could not be apprehended due to uneven terrain and darkness. He further admitted that in site plan Ex. P. 2, the direction in which the accused persons had fled away, has also not been shown. He specifically admitted that the contraband article was not recovered from the physical possession of the accused persons, but stated that the gunny bag was left by the appellant. He also admitted that the seal by which the packets were sealed, remained in his possession. 18. From the above detailed analysis, it is abundantly apparent that the prosecution evidence is replete with material and substantial contradictions regarding the direction from which the accused persons had come, regarding the distance from which they were allegedly sighted by the police party, regarding the alleged fact of chasing the accused persons and preparation of site plan. It also appears quite unnatural that when the police party had sighted the appellant and the co-accused at a distance of about 20-30 paces, they failed to arrest them on the spot. The prosecution witnesses have invented a different story on this count. Hamir Singh, driver, in whose custody the gunny bag containing the contraband article was placed in the jeep, when the police party chased the accused persons has also not been examined. This also raises an adverse inference against the prosecution. Therefore, the learned trial Judge has positively committed a grave error in ignoring these material and significant inconsistencies in the testimony of prosecution witnesses. 19. The link evidence to prove that all the sixteen packets of the representative samples remained in the safe custody and seals remained intact till they were received in the State F.S.L. is also vague and incomplete. PW 5 Pratap Singh admitted that as per F.S.L. report Ex. 19. The link evidence to prove that all the sixteen packets of the representative samples remained in the safe custody and seals remained intact till they were received in the State F.S.L. is also vague and incomplete. PW 5 Pratap Singh admitted that as per F.S.L. report Ex. P. 10, eight packets of the representative samples had weighed 30 grams each, while three samples weighed 35 grams each, three samples weighed 32 grams each and one sample weighed 34 grams while one sample weighed 29 grams only, whereas as per the contents of the recovery memo Ex. P. 1, each of the representative samples weighed thirty grams. For this variation in the weight. Pratap Singh has given a feeble explanation that those representative samples were not weighed by a physical balance but by an ordinary scale.This explanation does not appear to be sound and satisfactory. This important fact also raises considerable suspicion against the prosecution. 20. PW 6 Kailash Dan, F.C., deposed that on 15.10.88, sealed packets marked A-l to P-l were handed over to him by Road Certificate No. 53, which he had delivered to Hem Singh, Constable, S.P. Office, Jaisalmer, who thereafter returned those packets to him alongwith a forwarding letter for depositing those in the State F.S.L., Rajasthan, Jaipur. He deposed that thereafter he took those packets to City Police Station Kotwali and reached Jaipur on 17.10.88; that from 17.10.88 to 20.10.88 were gazetted holidays and, as such, he deposited those samples and documents on 21.10.88 to the State F.S.L. vide receipt Ex. P. 6. In his cross examination, he admitted that the seals of those packets bore letters PSJMR; that no seal impression was affixed on the Road Certificate Ex. P. 4 and that he did not remember whether any memo of seal impression was given to him by the S.P. Office or not. He further admitted that his signatures were also not procured by the Head Moharir on the Malkhana register; that there was no seal impression on the Malkhana register also and that in the F.S.L. receipt, Ex. P. 6, the details of seal impressions were not mentioned. He stated that on the forwarding letter Ex. P. 5 (which again is a carbon copy), the seal impression was affixed but in fact, on forwarding letter Ex. P. 5, no such seal impression has been affixed. P. 6, the details of seal impressions were not mentioned. He stated that on the forwarding letter Ex. P. 5 (which again is a carbon copy), the seal impression was affixed but in fact, on forwarding letter Ex. P. 5, no such seal impression has been affixed. Similarly, no seal impression has been affixed on letter dated 15.10.88 Ex. P. 9 sent by the SHO, Jaisalmer to S.P., Jaisalmer for sending the representative samples to the F.S.L. In the F.S.L. report Ex. P. 10 also, the details of the seal impression do not find mention. 21. In Biram v. State of Rajasthan, 1989 Cr.L.R. (Raj.) 115 , there was no evidence that the seals of the packets remained intact and were not tampered with. It was held that it is the responsibility of the prosecution to prove that the seals on the representative samples of the contraband article remained intact till they were delivered in the State F.S.L. It was also held that such a lacuna raises suspicion against the prosecution and benefit thereof should always be given to the accused. It was further held that while keeping the sample in the Malkhana, the Incharge of the Malkhana should mention in the Malkhana register about the details of the specimen impression of the seal and that merely stating that the sealed packets were received and the same were sent to F.S.L., does not fulfil the duty of the I.O. to clarify and remove the doubt about the details of the seals, which were affixed and that it might be just possible that, seal could have been removed at any time and could be affixed at any time. Therefore, it was the duty of the prosecution to get the entry of the specimen impression of the seal in the Malkhana register and while sending the sample to the F.S.L., the I.O. should also send a separate memo of the specimen of the seal so that the officials of the F.S.L. can compare the seal on the packets by comparing those with the specimen impression of the seal. It was further held that it was the duty of the F.S.L. to submit the report alongwith that specimen seal so that the Court may also consider that the seal which was affixed at the time of the recovery and the seal which was found on the packet when it was in the Malkhana and the seal of the packet sent to F.S.L. were intact and those were not tampered with. 22. In the case on hand, no specimen impression of the seal was affixed either on the Malkhana register nor on the Road Certificate nor on the forwarding letters Ex. P. 5 and Ex. P. 9. The State F.S.L. also did not return any memo containing the specimen impression of the seal nor mention the details thereof in its report Ex. P. 10. As mentioned earlier, PW 1 Tulchha Ram states that the seal, which was affixed on the representative sample contained the name of Police Station and that letters RSJMR were engraved therein. On the other hand, PW 3 Dal Singh, H.C. states that the said seal contained the letters PSJMR. PW 6 Pratap Singh has not given any details of that seal. In recovery memo Ex. P. 1, the specimen seal impression contains the letters PSJMR meaning thereby Police Station, Jaisalmer. As per provisions of Section 55 of the Act, an Officer Incharge of the police Station shall take charge and keep in safe custody all articles seized under the Act within the local area of that Police Station and which may be delivered to him and shall allow any officer who may deposit such articles to the police station or who may be deputed to affix his seal on such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer in charge of the police station. Therefore, the seized articles have also to be sealed by the seal of the officer incharge of the police station, while in this case, the seized contraband articles and the representative samples have been sealed by the seal of the police station, Jaisalmer and not by that of the Officer incharge of that police station. There is no evidence to show as to in whose custody, the said seal of the police station remained. There is no evidence to show as to in whose custody, the said seal of the police station remained. No respectable person of the locality or independent civilian was taken as a motbir. In such circumstances, the possibility that the seals of the representative samples could have been tampered with till they reached the State F.S.L., cannot be ruled out. 23. I am constrained to say that in this case, PW 5 Pratap Singh, SHO, has conducted the investigation in a slipshod and perfunctory manner ignoring the provisions of law and the police rules, which makes the prosecution case shrouded in mystery. 24. In Bhanwar Singh v. The State of Rajasthan, 1990 Cr.L.R. (Raj.) 149 , the appellant was convicted under section. 17 of the Act. It was held by this Court that Section 55 of the Act contemplates that sample so taken shall be sealed with a seal of the officer incharge of the police station and that the legislature never contemplated that a general seal of the police station, which could be in possession of any constable or any other official of the police station, should be used for affixing the seal on the recovered contraband article and representative samples thereof and the conviction was set aside. Hence, in the instant case by using the general seal of the police station, Jaisalmer, the provisions of Section 55 of the Act have been violated and thereby a substantial prejudice has been caused to the appellant. 25. In Mohammed v. The State of Rajasthan, 1989 (1) RLW 616 , there was a seizure of heroin on the highway and the packet of the sample was sent with the seal of engraving `R.S.R.', as per statement of PW 2 while PW 6, who carried the said sample, stated that the seal of the packet had the engraving `Thana Adhikari'. It was held that this difference in the details of the seal adversely affected the case of the prosecution and the.conviction was set aside and the accused appellant was acquitted. Similar are the facts of the case on hand, where the prosecution evidence regarding the details of the seal impression is inconsistent, contradictory, vague and incomplete. It was held that this difference in the details of the seal adversely affected the case of the prosecution and the.conviction was set aside and the accused appellant was acquitted. Similar are the facts of the case on hand, where the prosecution evidence regarding the details of the seal impression is inconsistent, contradictory, vague and incomplete. Hence, the prosecution has utterly failed to prove beyond reasonable doubt that the seals on the packets of the representative samples were not tampered with and remained intact till those packets were delivered to the State F.S.L. The learned trial Judge has conveniently ignored these material facts and wrongly held that there was no difference in the details of the seal impressions and the inconsistency was due to typing error. He has also not taken into consideration the express provision of Section 55 of the Act. 26. Admittedly, Pratap Singh did not prepare the site plan on the day of the incident. On the other hand, he prepared the site plan Ex. P. 2 after about five and a half months of the incident. In the site plan, neither the direction in which the accused persons fled away nor the place where the members of the police party were hiding nor the distance of the place where the accused persons were sighted, has been shown. On the other hand, it has been wrongly mentioned therein that the contraband Charas was recovered from the possession of the accused persons inside the Nala, because this fact does not stand proved by the testimony of PWs. 1, 2 and 3. 27. In Birma's case (supra), it has been pointed out that as per Clause (1) of the Rule 6.13 of Rajasthan Police Rules, 1965, the I.O. is required to prepare himself the site plan of the scene of the offence in triplicate in all important cases or by a qualified police officer or other suitable agency; one to be submitted with the charge-sheet or the final report and other be retained by the department. Case under the NDPS, Act is definitely an important one. Hence it was incumbent on the I.O. to have prepared the site plan according to the guidelines given by the police rules immediately after he inspected the site on the day of incident. Case under the NDPS, Act is definitely an important one. Hence it was incumbent on the I.O. to have prepared the site plan according to the guidelines given by the police rules immediately after he inspected the site on the day of incident. It is needless to mention that preparation of the site plan immediately after the occurrence helps the Court to come to a correct conclusion also to test and judge the testimony of the witnesses. Therefore, site plan Ex. P. 2 which does not contain material and significant details and distances, is faulty and creates a suspicion in the prosecution case. It has also caused substantial prejudice to the appellant. 28. Arjun Singh v. The State of Rajasthan, 1991 (1) WLN 513 was a case under section. 21 of the Act. In that case, the SHO did not prepare the site plan on the spot but prepared later on at the Police Station. The recovery did not inspire any confidence. No independent witness was called from the locality. It was hold that those facts caused substantial prejudice to the accused. Similar are the facts of the case on hand. 29. In Kabu v. State of Rajasthan, 1991 Cr.L.R. (Raj.) 183 , the site plan was not prepared by the I.O. It was held that the same caused prejudice to the accused. In that case, there was also no mention in the Malkhana entries regarding the description of the seal nor there was any mention about the specimen seal at the time when the samples were handed over to the carrier for depositing the same in the F.S.L. It was held that this was a serious lacuna which created doubt in the prosecution case. 30. Therefore, in such circumstances, PW 5 Pratap Singh, SHO, has overlooked and not followed the guidelines given in the police rules and conducted the investigation in a negligent and perfunctory manner by not preparing the site plan immediately after the alleged recovery of the contraband articles. Another serious irregularity committed by PW 5 Pratap Singh is that he deliberately did not call two or more independent respectable persons of the locality at the time of the alleged recovery. It is not a case of chance recovery. He had the source information relating to the contraband Charas when he proceeded from the Police station. Another serious irregularity committed by PW 5 Pratap Singh is that he deliberately did not call two or more independent respectable persons of the locality at the time of the alleged recovery. It is not a case of chance recovery. He had the source information relating to the contraband Charas when he proceeded from the Police station. Instead of taking independent motbirs, he preferred to take two constables Tulchha Ram and Mohanlal from the police Outpost, which was situated in Abadi and independent persons were available. Again, he did not take any precaution to take independent motbirs from the Dargah. The explanation given by him on this count is far from satisfactory. As per Section 100 (4) Criminal Procedure Code, he should have taken independent motbirs but he has deliberately ignored the specific provisions. It is true that the provisions of Section 100 (4) are not mandatory but the presence of independent motbirs during the search is always desirable and their absence weakens the prosecution case and may sometime destroy the acceptance,of the evidence as to the I recovery of the contraband articles. 31. In Jeevraj Ram v. The State of Rajasthan, 1991 (1) WLN 537 , no independent or respectable person was taken as motbir at the time of the recovery of the contraband opium and the police personnel were kept as search witnesses. It was held that it was not impracticable to procure independent witnesses but the I.O. did not try to call such independent witnesses, which caused prejudice to the accused. There was also non compliance of the provisions of Section 50 of the Act. Hence, the conviction and sentence of the appellant were quashed. 32. In Mohammed v. The State of Rajasthan, 1989 (1) RLW 616 , the police had prior information and there was no explanation as to why independent or other respectable persons as motbirs were not taken at the time of the recovery of heroin, which was seized on the highway. It was held that such a fact also adversely affected the prosecution case. 33. Section 51 of the Act lays down that the provisions of Criminal Procedure Code. shall apply in so far as they are not inconsistent with the provisions of NDPS Act to all warrants issued, arrest, searches and seizures made under the Act. It was held that such a fact also adversely affected the prosecution case. 33. Section 51 of the Act lays down that the provisions of Criminal Procedure Code. shall apply in so far as they are not inconsistent with the provisions of NDPS Act to all warrants issued, arrest, searches and seizures made under the Act. Therefore, the provisions of Sections 100 and 165 Criminal Procedure Code which are not inconsistent with the provisions of the Act, are applicable in NDPS Act Cases. Of course the provisions of Sections 100 and 165 are not mandatory but it is trite law that if there is any violation of the provisions of these sections the Court has to see whether any prejudice has been caused and in appreciating the evidence and other relevant factors, the Court should bear in mind that there was such a violation and from that point of view evaluate the evidence on record, if the Court finds that by violation of provisions of Sections 100 and 165 Criminal Procedure Code, any prejudice has been caused to the accused then such defect makes the prosecution case doubtful. Of course, it does not vitiate the trial. 34. In the case on hand in my considered opinion by not taking the independent motbirs, a substantial prejudice has been caused to the appellant and this is one of the factors which raises strong suspicion about the alleged recovery. 35. It is true that in the instant case, PW 5 Pratap Singh, SHO, effected the alleged recovery lodged FIR Ex. P. 9 and also investigated the case. This Court in (1) Bhanwar Singh v. The State of Rajasthan, 1990 Cr.L.R. (Raj.) 149 , (2) Sariya v. The State of Rajasthan, 1992 (1) WLN 107 , and (3) Gyan Chand v. The State of Rajasthan, 1993 Cr.L.R. (Raj.) 283 , and others cases has held that if the officer who makes the search and effects the recovery of contraband article for the offence punishable under the Act and if he lodges the report and conducts the investigation then his status cannot be placed on a higher pedestal other than that of the complainant and that it will be against the basic tenets of the criminal jurisprudence if he conducts the investigation in such a esse and on that ground has quashed the conviction and sentence of the accused persons under the Act. 36. 36. But the Apex Court in recent judgment in State of Punjab v. Balbir Singh, JT 1994 (2) SC 108 , while interpreting the provisions of Sections 41, 42, 50, 51, 52 and 57 of the Act and those of Sections 4,100 and 165 Criminal Procedure Code has held that if a police officer without any prior information as contemplated under the provisions of the Act, makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of the Criminal Procedure Code, and when such search is completed at that stage, Section 50 of the Act would not be attracted and the question of complying with the requirements thereunder would notarise. It has been further held that if during such search or arrest, there is a chance recovery of any narcotic drug or psychotropic substance, then the police officer, who is not empowered, should inform the empowered officer, who should thereafter proceed in accordance with the provisions of the Act. If he happens to be the empowered officer also, then from that stage onwards he should carry out the investigation in accordance with the other provisions of the Act. under sections. 41 and 42 of the Act, because the powers of issuing warrant, effecting search, seizure and arrest have only been conferred on the authorised/empowered officer. Therefore, there was nothing wrong and illegal on the part of PW 5 Pratap Singh, SHO to have conducted investigation in this case. 37. The investigation of a case under the Act can only be conducted by an authorised/empowered officer. As per notification of the Rajasthan State Govt., all the SHOs. of the police stations have been empowered under section. 42 of the Act for effecting search, seizure and arrest and to conduct investigation. If it is held that an empowered officer, who effects search, seizure or makes arrest under the Act cannot investigate the case then it will defeat the provisions of Section 53 of the Act, which deals with the powers of the I.O. of certain departments with the powers of an officer incharge of a police station. If it is held that an empowered officer, who effects search, seizure or makes arrest under the Act cannot investigate the case then it will defeat the provisions of Section 53 of the Act, which deals with the powers of the I.O. of certain departments with the powers of an officer incharge of a police station. Therefore, in view of the observations made by the Apex Court in Balbir Singh's case (supra), if an empowered officer makes search, effects recovery or seizes the contraband article or arrests the accused under the Act then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the Act. Moreover, under the Act, there is no bar that such authorised/empowered officer shall not conduct the investigation in this case if he has effected the recovery of contraband and also lodged report. 38. The latest view of the Apex Court taken in Balbir Singh's case (supra) has also keen followed by this Court in Rewat Ram v. State, S.B. Cr. Appeal No. 89/94, decided on 8.11.94 , Jugta Ram v. State, S.B.Cr. Appeal No. 303/94, decided on 28.10.94 and Deep Chand v. State, S.B.Cr. Appeal No. 350/94, decided on 3.7.95 . Therefore in view of this, the trial in this case cannot be held to have vitiated simply on the ground that PW 5 Pratap Singh, who effected the recovery of the contraband has also conducted investigation. Hence, the contention raised on behalf of the appellant on this count is now not tenable and the same is hereby dismissed. 39. Non-compliance of Section 57 of the Act: PW 5 Pratap Singh stated that he had sent a wireless message to the S.P., Jaisalmer about the alleged incident. The prosecution has not cared to file the copy of the said wireless message, which is retained at the police station. Besides this, in Bhanwar Singh's case (supra), it has been held that wireless message is not a substitute for the report under section. 57 of the Act. Section 57 of the Act lays down that whenever any person makes any arrest or seizure under the Act, he shall within 48 hours next after such arrest or seizure make a full report of all the particulars of such arrest, seizure to his immediate official superior. 57 of the Act. Section 57 of the Act lays down that whenever any person makes any arrest or seizure under the Act, he shall within 48 hours next after such arrest or seizure make a full report of all the particulars of such arrest, seizure to his immediate official superior. The object of this section is to put a check on the officer so that they may not abuse the drastic powers conferred upon them under the Act. 40. In Biram's case (supra), a report regarding the arrest and seizure as required under S. 57 of the Act was not sent by the I.O. to his immediate official superior. It was held that such a defect was fatal to the prosecution case. 41. In Zubeda Khatoon v. Assistant Collector of Customs, 1991 Cri.L.J. 1392 , the Karnataka High Court has held that provisions of Section 57 of the Act are mandatory and non compliance thereof results in serious prejudice to the accused. 42. In Kabu's case (supra), no report under section 57 of the Act was sent by the I.O. to his immediate official superior. However, a letter for sending the sample for chemical examination to the F.S.L. was sent by the I.O to the S.P., wherein details of the recovery, were mentioned. It was held that such a forwarding letter cannot be construed to be the compliance under section 57 of the Act. 43. The learned trial Judge ignored the principles of law laid down by this Court in Kabu's case (supra) and wrongly held that there was compliance of Section 57 of the Act by virtue of forwarding letter dated 15.10.88 Ex. P. 9 written by the SHO, PS, Jaisalmer to S.P., Jaisalmer and by forwarding letter of the S.P. dated 15.10.88 Ex. P. 5. 44. It is true that as per judgment of the Apex Court in Balbir Singh's case (supra), the provisions of Sections 52 and 57 of the Act, which deals with the steps to be taken by the officers after making arrest or seizure under sectionecs. 41 to 44 are by themselves not mandatory, but the Apex Court has clearly observed that if there is non-compliance of Section 57 of the Act or there are lapses like delay etc. 41 to 44 are by themselves not mandatory, but the Apex Court has clearly observed that if there is non-compliance of Section 57 of the Act or there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding the arrest or seizure as well as on merits of the case. 45. As mentioned earlier, the non-compliance of Section 57 of the Act in this case has positively resulted in material prejudice to the accused specially when no independent motbir was taken by Pratap Singh and the seal affixed on the packets of the samples and seized contraband articles as not that of officer in charge of the police station but the general seal of the police station Jaisalmer. Therefore the fact of not sending the report under section 57 of the Act of the alleged recovery of the contraband article by Pratap Singh within forty eight hours to his immediate official superior also makes the prosecution case shrouded in secrecy and mystery and it has caused substantial prejudice to the appellant. 46. For the offences punishable under the Act, as full proof, honest, independent and fair investigation is expected because only then the illegality or irregularity committed by the I.O, can be detected. It will also impart much more authenticity and credit worthiness to the investigation while equally providing important safeguard to the accused. The police motbirs, who were taken by Pratap Singh, SHO, were easily liable to be pliable in his hands and they were also amenable to his influence. 47. Hence for the reasons detailed ad ultra, in my considered opinion, the learned trial Judge has not correctly discussed, analysed and evaluated the evidence recorded in this case and committed illegality of fact as well as of law in convicting and sentencing the appellant on the basis of surmises and conjectures and, therefore, the impugned judgment can not be sustained. 48. The net result is that this appeal is allowed, conviction and sentence of the appellant Annu Khan are hereby set aside and he is acquitted of the offence punishable under section. 20 of the N.D.P.S. Act. The appellant, who is in jail, be released forthwith, if not required in any other case. The jail authorities be informed accordingly.Appeal allowed. *******