JUDGMENT 1. - Since both these appeals involved certain common questions of law on uncommon, but similar facts, these were heard together. In the course of their arguments, the learned counsels for the appellants had vehemently urged that the mandatory provisions contained in Section 42, 50 and 52 of the Narcotic Drugs and Psychotric Substances Act 1985(hereinafter referred to as "the N.D.R.S. Act, 1985") were not complied with in letter and spirit, therefore, the trial of the appellants in both the cases had been vitiated. In support of such contention, the learned counsel had relied upon certain decisions of this Court. On the other hand, the learned Public Prosecutor had placed reliance on certain decisions of the Kerala, Delhi and Madras High Courts, in support of his contention that non-observance of certain statutory provisions relating to appeal of the appellants and seizure of the contraband from their possession was not fatal to the success of the prosecution case, unless it was shown that such non-observance of the statutory provisions had been caused prejudice to the accused in his defence. In view of such arguments advanced by the learned counsel for the parties, I had, vide order dated November 11, 1995, referred the matter to the Hon'ble Chief Justice with the request that the view of a larger bench on the point as to what extent the theory of prejudice to the accused by non-observance of certain statutory provisions of the Act is relevant be solicited in these cases. The Hon'ble Chief Justice was pleased to refer these appeals to a Division Bench for the purpose. The Division Bench, vide its order dated February 23, 1996, opined that the provisions of Sections 42, 50 and 52 of the N.D.P.S. Act are mandatory in view of the Apex Courts decision in the case of State of Punjab v. Balbeer Singh, 1994(3) SCC 299 and in Saiyed Mohd. Saiyed Umar Saiyad & others v. State of Gujarat 1995(2) Crimes 182 and therefore, the reference was uncalled for The appeals were directed to be listed before the Single Bench for disposal in accordance with law. Both the appeals again fell for hearing before me. I, therefore, heard the learned counsel for both sides at considerable length. 2. Saiyed Umar Saiyad & others v. State of Gujarat 1995(2) Crimes 182 and therefore, the reference was uncalled for The appeals were directed to be listed before the Single Bench for disposal in accordance with law. Both the appeals again fell for hearing before me. I, therefore, heard the learned counsel for both sides at considerable length. 2. In so far as the question whether the provisions of Section 42, 50 and 52 of the N.D.P.S. Act 1985 are mandatory or directory is concerned, that stands concluded by the two judgments of the Apex Court referred to by the Division Bench in its order dated February 23, 1996. It was urged on behalf of the appellants that in view of the opinion of the Division. Bench, the impugned judgements in both the appeals may conveniently be set-aside without entering into further scrutiny and examination of the evidence on the record of the case. The learned Public Prosecutor, however, urged that a study of the evidence, brought on the record of the Trial Court in the two cases, would clearly disclose that the provisions contained in Section 42, 50 and 52 had not been violated and, therefore, these cases cannot be thrown on the assumed ground that the mandatory provisions, as aforementioned, were not complied with. The learned Public Prosecutor further submitted that even if it was found on examination of the evidence on the record of the two cases that there has been some non-compliance of the statutory provisions, then in view of Section 465 Cr.P.C, the cases cannot be thrown outright unless the court comes to the conclusion that the non-compliance has caused failure of justice. It was submitted that the theory of prejudice to the accused has to be considered even in those cases wherein there has been a breach of one or more of the mandatory provisions of the N.D.P.S. Act. 3. In view of the arguments advanced by the learned counsel for the parties it becomes necessary first to examine as to what could be the consequence of the non-compliance of the mandatory provisions of Sections 42, 50 and 52 in the facts and circumstances of the present case. 4. 3. In view of the arguments advanced by the learned counsel for the parties it becomes necessary first to examine as to what could be the consequence of the non-compliance of the mandatory provisions of Sections 42, 50 and 52 in the facts and circumstances of the present case. 4. The object of the Code of Criminal Procedure, 1973, which applies to the proceedings under the N.D.P.S. Act also, is to ensure that an accused person gets a full and fair trial on certain well established and well recognised lines that accord with notions of justice. If there has been substantial compliance with the requirement of law providing the accused a full and fair trial in accordance with the principles of natural justice no order of competent court should be reversed or altered in appeal or revision on account of a procedural irregularity unless the same results in miscarriage of justice. In the case of Subramanian, reported in 28 Indian Appeals 257, the Privy Counsel had thrown a proposition that contravention of positive provision of the Code of Criminal Procedure do not come within the definition of error, omission or irregularity. Such proposition should open the door for the view that the provision of Section 537 of the old Cr.PC.(465 Cr.P.C.) apply only to error of procedure and not substantive errors of law or to cases of, disregard or disobedience to the mandatory provision of the said Code. The proposition thrown in Subramanian's Case(supra) was however, dispelled. In Abdul Rahmans case reported in AIR 1927 P.C. 44 wherein it was held that there is nothing in Section 537 of the Code of Criminal Procedure to give a restricted scope to that provision. It was observed that the said provision covered the cases of irregularity in the widest sense of the term provided that there was no failure of justice. Thereafter, the view which found favour with the Courts has been that even the cases of illegality, riot touching the jurisdictional aspect of the Court, will be covered by Section 537 (now Section 465) unless it has actually occasioned a failure of justice and that whether it is irregularity or illegality, the sole criterion is whether there has been actually a failure of justice in a given case. The test to be applied is whether the accused had fair trail in spite of the transgression of the prescribed rule or procedure. The test to be applied is whether the accused had fair trail in spite of the transgression of the prescribed rule or procedure. This test seems to have been applied to the cases involving offences under the N.D.P.S. Act also. 5. In the case of Abdul Satar 1989 Drugs Cases p-50 , the Panaji Bench of the Bombay High Court while considering an appeal against the conviction and sentence under the N.D.P.S. Act held that even if the provisions of Section 41 to 58 of the Act are mandatory but are not complied with, procedural infirmity would not by itself vitiate the conviction of the accused when the recovery of the Narcotic Drugs from him is proved to be genuine and no prejudice could be said to have been caused to him by such infirmity. 6. In the case of Hukam Singh v. Union Territory, 1988 Drugs cases 307 , the Punjab and Haryana High Court had also taken almost the same view and held that it is always a question of fact required to be considered in the light of circumstances and the relevant provisions to ascertain as to whether prejudice was caused to the accused by non-compliance of a mandatory provision in the N.D.P.S.Act. In that case their Lordships of the Punjab and Haryana High Court agreed With the decision of the Delhi High Court in the case of Richpal v. Delhi Administration, 1989, Drugs Cases,97 wherein two Supreme Court Cases, namely Radhakishan v. U.P. 1963 S.C. 822 and Kandu Sonu Dhobi v. State of Maharashtra, AIR 1972 S.C. 958 were followed. In those two cases, the Apex Court had taken the view that even if certain statutory provisions are not complied with before affecting the seizure, the seizure does not become invalid on that score alone. The Court had further observed that the provisions of Section 41 to 55 of the N.D.P.S. Act are not to be obviously ignored by the Courts or by the prosecution but those provisions are to be kept in view only to see whether the prosecution case set up is truthful or not or there arises any doubt in respect of prosecution case for non-compliance of any of the provisions of the Act. This view was followed by the Gujarat High Court in Surajmal Kanhiya Lal Soni v. State of Gujarat, 1990 Drugs Cases 445 . This view was followed by the Gujarat High Court in Surajmal Kanhiya Lal Soni v. State of Gujarat, 1990 Drugs Cases 445 . The Delhi High Court seems to have followed the same view consistently as appears from the decisions of that High Court in the case of Devid R. Hall v. (Delhi Administration) 1990 Drugs Cases 263 , Jayapalan v. State 1989 Drugs Cases 106 , Santosh Singh v. State, 1991 Cr.L.R. 147 . In Ismail v. State of Kerala, 1992 Drugs Cases 63 , the Kerala High Court seems to have taken a similar view and held that noncompliance of the provisions of Section 42, 50(1), 52(1) and 57 of the N.D.P.S. Act is not ipso facto fatal to the prosecution without looking into the merits and that the provisions are intended as safeguards against unmerited prosecutions. 7. It would thus, appear that the consensus of the Judicial opinion is that even the breach of mandatory provision of N.D.P.S Act, provided such breach does not affect the very jurisdiction of the Court to take cognizance of the offence and/or try the offences under the said Act, is not fatal to the prosecution cases provided no miscarriage of justice has been occasioned to the accused and he has not been misguided in his defence. In other words, the theory of prejudice to the accused as contained in Section 465 Cr.P.C. is very much relevant to the cases involving trials for offences under the N.D.P.S. Act. That being so, the present cases cannot be thrown away on the sole argument that there has been non-compliance of the provisions contained in Sections 42, 43, 50 and 52 etc., without examining the point as to whether there actually has been the alleged non-compliance and if so what is the effect of such non-compliance of the mandatory provisions of the N.D.P.S. Act in the facts and circumstances of the present cases. It necessarily takes me to the facts in the individual appeals:- S.B.Cr. Appeal No.523/1994 Dinesh Kumar v. State of Rajasthan. 8. This appeal is directed against the judgement and order dated September 18, 1994 whereby the learned Sessions Judge, Jhalawar, found the accused appellant guilty of the offence under Section 8 read with Section 21 of the N.D.P.S. Act, convicted him therefor and sentenced him to undergo Rigorous imprisonment for 10 years and to pay a fine of Rs. 8. This appeal is directed against the judgement and order dated September 18, 1994 whereby the learned Sessions Judge, Jhalawar, found the accused appellant guilty of the offence under Section 8 read with Section 21 of the N.D.P.S. Act, convicted him therefor and sentenced him to undergo Rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- (one Lakh) or in case of default of making payment of the fine to further undergo Rigorous Imprisonment for two years.The brief facts of this case are as unde:- 9. On September 4, 1992, P.W.3 Mansingh, Station House Officer (SHO), Police Station Bhawani Mandi, District Jhalawar is alleged to have received a secret information to the effect that a person named Dinesh Teli of Bhawani Mandi would receive smack, a Psychotropic substance, from Papu Jat and Raju Verma of Bhawani Mandi and would deliver the said substance to an outsider smuggler near the gate of Rajasthan Textile Mill. On the receipt of such information Mansingh S.H.O. along with his subordinate staff consisting of PW.1 Ashraf Ali, Traffic-in-charge, P.W.2 Ram Hetar, P.W.4 Abdul Rasheed, P.W.5 Smt. Archna', PW.6 Balbeer Singh, P.W.9 Ram Singh, P.W.12 Rajendra Singh Constables, PW.11, Shanker Lal Assistant Sub-Inspector and under the supervision of the Circle Officer Shri Pukh Raj Purohit, Dy. superintendent of Police, proceeded in a jeep towards the main gate of the Rajasthan Textile Mill which was about 3 Kms. away from the premises of the Police Station. Mansingh S.H.O. had taken the necessary material like weights, scales, wax etc. with him. On reaching in front of the Mill's gate, the police party headed by Shri Pukh Raj Purohit, Dy.. Superintendent of Police, and Mansingh S.H.O. noticed the appellant coming from the side of the town. After reaching in front of the Mills gate the appellant is alleged to have proceeded towards the Railway line which lay behind the shops situated in front of the Mills gate. The police party stopped him and enquired of him his name. On the appellants giving out his name as Dinesh Kumar Mansingh, S.H.O. told him that he suspected him of being in unlawful possession of certain quantity of opium smack and that he intended to take search of him. Mansingh S.H.O. is further alleged to have told the appellant that if he liked, the appellant may be searched in the presence of a gazetted officer. Mansingh S.H.O. is further alleged to have told the appellant that if he liked, the appellant may be searched in the presence of a gazetted officer. The appellant allegedly denied of being in possession of any opium type smack and allegedly stated that the S.H.O. may take search of him himself. Thereupon Man singh gave search of his own person, to other constables and then searched the person of the appellant. From the right pocket of the pant, which the appellant was putting on, a plastic packet containing brownish powder was found and seized. From the left pocket, currency notes of Rs.250/- were found. Shri Mansingh asked the appellant whether he was having any licence for the possession of the smack and where from did he obtain the said substance. The appellant told that he was having no licence for keeping the said substance in his possession and that the same had been given to him by Pappu Jat and Raju Verma who had met him on the crossing of Bara Dukans and after giving a sum of Rs. 250/- to him had directed him to deliver the packet containing the substance to a person who would be putting on a green pant and would meet him near the Railway line in front of the Mill gate. Mansingh S.H.O. then prepared a sample weighing 30 grams and sealed the same in a Cigarette packet. The remaining quantity of the smack was kept in the very plastic Bag wherein it was found in the possession of the appellant. Allegedly Mansingh S.H.O. sealed the two packets on the spot and then returned with the appellant to the police station where he lodged the first information report Ex.P3 at 6.30 P.M. He then handed over the investigation of the case, to his subordinate officer P.W. 11 Shanker Lal Assistant Sub-Inspector and deposited the seized material with P.W.8 Shyam Sunder, Head Mohrin-in-charge of Malkhana. On September 22, 1992 P.W.7 Mangi Lal took the sealed packets to the Forensic Science Laboratory, Rajasthan Jaipur for examination. On micro Chemical analysis, the packet containing brown coloured powder substance gave positive test for the presence of diocetyl-morphine. After completing the investigation, P.W.11 Shanker Lal, Assistant Sub-Inspector, submitted the charge-sheet in the court of the concerned Magistrate who committed the case to the Court of sessions Judge at Jhalawar. On micro Chemical analysis, the packet containing brown coloured powder substance gave positive test for the presence of diocetyl-morphine. After completing the investigation, P.W.11 Shanker Lal, Assistant Sub-Inspector, submitted the charge-sheet in the court of the concerned Magistrate who committed the case to the Court of sessions Judge at Jhalawar. The learned session Judge tried the appellant on the charge for the offence under Section 8/21 of the N.D.P.S Act and found him guilty of the said offence, convicted and sentenced him in the manner stated above. 10. The learned counsel for the appellant vehemently urged that all the witnesses examined in this case are police officials and, therefore, they cannot be relied upon for the conviction of the appellant. It was also submitted by the learned counsel that in effecting the seizure of the alleged psychotropic substance and the arrest of the appellant as per provisions of Section 53 of the N.D.P.S. Act, neither the provisions Section 50 of informing the appellant to be searched in the presence of a gazetted officer or a Magistrate nor those contained in Section 51 relating to the requirements of associating independent witnesses in the conduct of the search were complied with. It was thus, submitted that the mandatory provisions of the N.D.P.S. Act were not complied with in the present case and due to the non-compliance of such mandatory provisions the trials of the accused has been vitiated and he was entitled to be acquitted of the charge framed against him. 11. The learned counsel in this behalf heavily relied upon the decision of the Court in the case of Durga Singh v. State of Rajasthan 1994 RCC 312, the decisions of the Supreme Court In the cases of Sayad Mohd. Saiyed Umar Saiyed & others v. State of Gujarat (supra) and State of Punjab v. Jasbeer Singh 1996 Cr.L.R. (S.C.) 58 . 12. The learned Public Prosecutor, however, submitted that the evidence of police officials cannot be discarded or disbelieved merely on the ground that they happen to be police officials. It was submitted that the provisions contained in section 43 and 51 of the N.D.P.S. Act were fully complied with in conducting arrest of the accused and seizure of the Narcotic substance from his possession. It was submitted that the provisions contained in section 43 and 51 of the N.D.P.S. Act were fully complied with in conducting arrest of the accused and seizure of the Narcotic substance from his possession. The learned Public Prosecutor further submitted that since the independent witnesses refused to associate themselves with the conduct of search and seizure in the present case, their non-association was not at all fatal to the success of the prosecution case. It was further submitted that a gazetted officer, namely Shri Pukh Raj Purohit, himself was supervising the arrest, search and seizure proceedings in the present case and therefore, it was not necessary for Mansingh S.H.O. to take the appellant to a Magistrate. It was submitted that since the appellant himself declined to be taken to a gazetted officer, he could not be allowed to take benefit of his not being taken to the Magistrate or any other gazetted officer. 13. The arguments advanced call for the reappraisal of the evidence on record in view of the fact that, I have already taken the view that though the provisions contained in Sections 42, 50 and 52 of the Act are mandatory, yet their non-compliance would not vitiate the trial, if no miscarriage of justice has occasioned to the accused. In order to see whether any prejudice has been caused to the accused in his defence by the alleged non-compliance of the provisions of Section 43 and 50 of the NDPS Act in the present case, the evidence on record is required to be examined. 14. It is, evident from the narration of the facts, made above that all the 12 witnesses examined in this case are police officials. The settled law is that the evidence of police officers cannot be rejected on the sole ground that they happen to be the police officers. In fact, there is no rule of law that the evidenced a police witness should be discarded on the sole ground that it is the evidence of a police official who is interested in the outcome of result of the case. 15. In the case of Karthik Malhar v. State of Bihar, 1996 (1) SCC 614 their Lordships of the Supreme Court examined the meaning of the word `interested'. Reiterating the principles laid down in Mrs. 15. In the case of Karthik Malhar v. State of Bihar, 1996 (1) SCC 614 their Lordships of the Supreme Court examined the meaning of the word `interested'. Reiterating the principles laid down in Mrs. Dalbir Kaur v. State of Punjab 1976(4) SCC 158 , their Lordships held that the term "interested" postulates that the witnesses must have some direct interest in having the accused, somehow or the other, convicted for some amimus or for some other reasons. Reiterating the same principle in the case of Anil v. State of Maharashtra 1996(2) SCC 589 , their Lordships observed that there is no rule of law that the evidence of police official has to be discarded on the sole ground that such evidence comes from a police official who is interested in the out come of the result of the case. Their Lordships further observed that prudence requires that the evidence of police officials, who are interested in the out come of the result of the case, needs to be carefully scrutinised and individually appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their credit worthiness. In fact, until and unless. It is found on examining the evidence of police officials that it suffers from some inherent infirmity or improbability and does not inspire confidence, then certainly the evidence of such official can be rejected. In that case, the evidence of the police officials was accepted as the same inspired confidence in the court. Therefore the argument advanced by the learned counsel for the appellant that the evidence of all the eye-witnesses who happened to be the police officers should be discarded on the sole ground of their being police officials cannot be accepted. However, if on examination of their testimony, their evidence is found to be suffering from some infirmity and does not inspire confidence, then certainly the evidence led by such large number of police witnesses cannot check the fall of the prosecution case. 16. P.W.1 Sharafat Ali narrated the same facts, as stated above, in his Examination-in-charge. However, if on examination of their testimony, their evidence is found to be suffering from some infirmity and does not inspire confidence, then certainly the evidence led by such large number of police witnesses cannot check the fall of the prosecution case. 16. P.W.1 Sharafat Ali narrated the same facts, as stated above, in his Examination-in-charge. In cross-examination he told that the place where the arrest of the accused and the seizure of psychotropics drugs substance was effected from his person was just behind the hotels and shops situated in from of the gate of the Mill. He further told that the security staff of the mill is also stationed there. The witness asserted that effort was made to associate independent witnesses but they did not lend any help to the police. On being questioned as to what were the names of such witnesses who were contacted by the police. In that behalf the witnesses could not tell their names. The witness further told that the S.H.O. had not asked the appellant. If he wanted to get himself searched in the presence of a Magistrate. He further stated that the packets which were allegedly sealed on the spot were not got signed by him. P.W.2 Ramhetar also spoke in the same terms. 17. P.W.3 Mansingh SHO is the main person who is stated to have conducted the entire proceedings of arrest of the appellant and seizure of the narcotic substance from his possession. In his cross-examination he told that he had put the seal impression on the seizure memo after coming to the police station. In another part of his statement he had stated that the seal with which the packet, containing the smack, was sealed was deposited in the Malkhana of the police station. But he contradicted himself on this point and stated that seal was not an article to be deposited in Malkhana and that it is taken and used as and when necessity arises. The witness further stated that he had sent PW.6 Balbeer Singh to bring the independent witnesses to witness the search and seizure proceedings but no body had come forward to associate himself with the proceedings. 18. The witness further stated that he had sent PW.6 Balbeer Singh to bring the independent witnesses to witness the search and seizure proceedings but no body had come forward to associate himself with the proceedings. 18. The above three witnesses jointly stated that when they reached in front of the gate of the Mill, they had seen the appellant going towards railway line and on intercepting him they had informed him as to whether he would like to be searched in the presence of a gazetted officer. But the appellant had expressed his readiness to be searched by PW.3 Mansingh himself. 19. PW.4 Abdul Rasheed stated in examination-in-chief that when he and other witnesses had reached in front of the gate of the Mill, the appellant was seen running towards railway line whereupon the police officials chased him and caught hold of him. In cross-examination, the witness told that while running ahead of them the appellant had not thrown anything out of his pocket. According to this witness, there were 20 to 25 tea-stalls and restaurants on the spot and at the time of the incident, the workers in the mill were coming out of the mill premises. The witnesses further stated that Balbeer was sent to call for the independent witnesses, but none had come forward. This witness further stated that it was after affecting search of the person of the appellant and on seizure of the narcotic substance from his possession that P.W.3 Mansingh SHO had told the appellant that if he so liked he could be taken to a gazetted officer for effecting search. 20. P.W.5 Smt. Archna Bishnoi gave almost the same version as was given by other witnesses but in cross-examination she stated that on the date of incident she was posted in the office of Circle Officer and on a call from the police station she had accompanied her officer, Deputy Superintendent of Police, to the police station and therefrom had come to the gate of Rajasthan Textile Mill where the police had already made Ghera Bandi. After making the Ghera Bandi, the appellant was arrested and was asked if he wanted to be searched in the presence of some gazetted officer. On a refusal made by the appellant he was searched. After making the Ghera Bandi, the appellant was arrested and was asked if he wanted to be searched in the presence of some gazetted officer. On a refusal made by the appellant he was searched. The witness stated in her cross-examination that though there were 15 to 20 tea-stalls, restaurants, panshops near the place of the arrest of the accused but no person from those shop was called before effecting the arrest of the appellant and the search of his person. 21. P.W.6 Balbeer Singh though spoke. In the same language, yet in his cross-examination, he emphatically denied that he was ever asked by P.W,3 Mansingh to call for any Independent witness from the shops nearby. P.W.9 Ram Singh also corroborated the prosecution version, but told in the cross-examination that no Independent witnesses from the shops was called for to witness the arrest and seizure proceedings. P.W. 10 Kaushal Raj told that he did not know as to which seal was placed on the packets prepared on the spot. He could not tell as to who had gone to call for the Independent witnesses. He further told that on the instructions of the Circle Inspector, some police constable had taken search of the appellant. In his cross-examination he further told that the appellant was going with ordinary pace and did not try to throw away packet from his pocket. 22. P.W.12, Rajendra Singh could not tell as to which seal was put on the packets stated to be prepared on the spot. He could not further tell whether the Circle Officer Shri Pukh Raj Purohit had accompanied the police party from the police station or he had been called from his office. The office of the Circle Officer was just close to the place of incident and there was also a police chowki near the gate of the Mill. He could not tell as to whether the appellant was arrested while going towards railway line or coming towards the gate of the Mill. He further told that the SHO as well as the Circle Officer had asked the appellant whether he would like to be searched before a gazetted officer. 23. RW.8 Shyamsunder is the Head Moharrir-in-charge of the police Malkhana. The sealed packet was given to him by the SHO. He further told that the SHO as well as the Circle Officer had asked the appellant whether he would like to be searched before a gazetted officer. 23. RW.8 Shyamsunder is the Head Moharrir-in-charge of the police Malkhana. The sealed packet was given to him by the SHO. However he admitted that in the relevant memo Ex.P6, the name of the person giving the seal packet to him was not mentioned. He further stated that the sealed packet was handed over to RW.7 Mangilal for taking the same to the Forensic Science Laboratory. RW.7 Mangi Lal corroborated that fact. 24. P.W.11 Shanker Lal is the investigating officer of the case and he has stated that during the investigation he had recorded the statement of certain witnesses. In cross-examination he told that he did not remember whether any other seal was placed on the sealed packet. He admitted that though he was an eye-witness in the case, yet he did not remember as to whether any independent witness was called from the shops at the time of arresting the appellant and conducting search of his person. 25. An examination of the prosecution evidence brought on the record of the case discloses several infirmities and short-comings which heavily weigh against the trust-worthiness of the witnesses in the matter of compliance of the mandatory rules regarding arrest search and seizure proceedings. At the very out-set it may be said that though P.W.3 Mansingh SHO was having a previous information regarding the possible commission of the offence against N.D.P.S. Act in the present case and allegedly he had proceeded along with his almost entire staff under the alleged supervision of his Circle Officer Shri Pukh Raj Purohit to prevent the Commission of the crime yet he did not think it proper to mention the relevant fact of his departure from police station having been entered into the general diary. In the seizure memo Ex,P.1, no reference to any report of departure, having been made in the general diary, was given though, such a fact was tried to be mentioned. In the FIR Ex,P.3. His version In the FIR could have been accepted had PW.11 Shanker Lal investigating officer taken the trouble to produce the copy of the said report. In the seizure memo Ex,P.1, no reference to any report of departure, having been made in the general diary, was given though, such a fact was tried to be mentioned. In the FIR Ex,P.3. His version In the FIR could have been accepted had PW.11 Shanker Lal investigating officer taken the trouble to produce the copy of the said report. In the general diary along with other documents submitted under Section 173 Cr.PC, before the concerned Magistrate, I had to look at that thing from that angle particularly. In view of the fact that while filing the extract from the case diary regarding the conduct of Investigation by PW.11 Shanker Lal Assistant Sub-Inspector, simply an Incomplete copy of the relevant entry which does not speak about any report of departure of police party from the police station was filed. Such careless handling of the case by persons of the positions of Circle Officer, SHO and Assistant Sub-Inspector of the police station is really deplorable. The relevant copy of the departure report could have helped the court to appreciate whether or not the Circle Officer Shri Pukh Raj Purohit had actually accompanied the police party to the place of incident in the present case. There is thus no satisfactory evidence regarding the time and manner of the departure of the police party which allegedly consisted of the witnesses examined in the Court and on the point of the Supervisions of the proceedings by Shri Pukh Raj Purohit Dy. Superintendent of Police. 26. In the case of Saiyad Mohd. Saiyad Umar Saiyad & Others v. State of Gujarat (Supra) the Apex Court with reference to the presumption under illustration(e) of Section 114 of the Evidence Act 1872 in relation to the provisions contained in Section 50 observed that by reason of Section 114 of the Evidence Act, a court may presume the existence of any fact which it thinks likely to have happened regard being given to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. It may presume that judicial and official acts have been regularly performed. But there is no rule for such presumption because the possession of illicit articles under the NDPS Act has to be satisfactorily established before the court. The fact of seizure of an article on a search has to be proved. It may presume that judicial and official acts have been regularly performed. But there is no rule for such presumption because the possession of illicit articles under the NDPS Act has to be satisfactorily established before the court. The fact of seizure of an article on a search has to be proved. When evidence of the search is given, all that transpires in its connection must be stated. In view of such observations of the Apex Court, I am not inclined to ignore and overlook the lapses on the part of the investigating officer in not trying to prove the departure of the police party from the police station. In the facts and circumstances of the case. 27. The next fact that does not inspire any confidence in me is that any sincere effort was ever made by PW.3 Mansingh to associate any independent witnesses. In the conduct of search and seizure proceedings. In the present case. The Incident is stated to have taken place at about 5.30 PM, in the densely populated area of the gate of the Textile Mill. There were a number of shops, tea-stall, restaurants and the time was such that the workers. In the Mill were coming out of the Mill premises after having worked for the day, The office of the Deputy Superintendent of Police as also the police chowki were situated at that very place. It is difficult to accept that if efforts were made to secure the association of independent witnesses in the search and seizure proceedings no witness from the town or from the shops situated in front of the Mill would have been available to the police officers. Some of the witnesses, no doubt, asserted that RW.6 Balbeer Singh Constable was sent to bring such witnesses from the shop, but Balbeer Singh denied that fact. PW.3. Mansingh SHO was having a previous information regarding the likelihood of the commission of the offence. But he could not tell as to why he did not take some independent witnesses with him from the town to witness the arrest, search and seizure proceedings. The state of evidence brought on the record clearly suggests that the requirements of association of independent witnesses in conducting the search and seizure proceedings was deliberately and consciously violated in the present case. The state of evidence brought on the record clearly suggests that the requirements of association of independent witnesses in conducting the search and seizure proceedings was deliberately and consciously violated in the present case. The association of independent witnesses in such matters which attract heavy punishments on the offender assumes greater importance particularly when the time and place of the commission of offence are such that witnesses would have been available, had a sincere and serious effort been made in that direction. The testimony of the police officers, whatever worth it is, gets diminished and weakened by not associating the independent and respectable witnesses of the locality in the conduct of search and seizure proceedings. 28. The next point is that of putting seal on the seized substance. There is no satisfactory evidence on the point that the substance alleged to have been recovered from the possession of the appellant was actually sealed on the spot. The statement of P.W.3 Mansingh himself raises a question mark on the worth and value of the evidence on this point. He himself admitted that he had placed the seal impression on the seizure memo Ex.P1 after coming to the police station. If he was having the seal of the police station with him while affecting the seizure of the Narcotic substance obtained from the possession of the appellant and had really sealed the two packets on the spot, then there was no good reason for his not having put the same seal impression on the seizure memo Ex. P3 on the spot. If for one reason or other, he could not take his own seal as also the seal of the police station or the previous information of the possibility of commission of the crime and the Circle Officer was supervising the entire proceedings, as stated by the prosecution witnesses, the seal of the Circle Officer could have been obtained from his office which was close by. His not conducting and behaving in that way creates serious doubt in the version that the seized material was sealed in two packets on the spot. This position of evidence violates the provisions of Section 43(b) of the N.D.P.S. Act and such violation adversely affects the worth and value of the prosecution evidence. His not conducting and behaving in that way creates serious doubt in the version that the seized material was sealed in two packets on the spot. This position of evidence violates the provisions of Section 43(b) of the N.D.P.S. Act and such violation adversely affects the worth and value of the prosecution evidence. In the same context, it may be mentioned that PW.8 Shyam Sunder Head Mohar-in-Charge of the police station Malkhana has stated that he had received only one packet from Mansingh S.H.O. Two packets had allegedly been prepared with the Narcotic substance seized from the possession of the appellant, but the witness in his statement did not depose on oath to that effect though entries of receipt of two packets were made in the relevant Malkhana register marked as Ex.P.6. 29. Another important feature of this case is that though the compliance of Section 50 has been strenuously urged by the learned Public Prosecutor, but the evidence is not at all satisfactory. No doubt, it was urged that the Circle Officer Shri Pukh Raj Purohit had not only supervised the entire search and seizure proceedings but also had witnessed such proceedings but the evidence is hardly convincing. Not only that the relevant departure-memo in the general diary could have thrown light on this aspect of the case, but also the evidence of Shri Pukh Raj Purohit would have gone a long way to prove the compliance of the mandate contained in Section 50 of the N.D.P.S. Act. Almost all the witnesses have spoken in the same language that the appellant was asked by Mansingh S.H.O. as to whether he would like to be searched in the presence of a gazetted officer. If a gazetted officer was already there in the police party, there was no occasion to ask the appellant such a question. He could have been informed that a gazetted officer was already there in the police party and he is being searched in his presence. Any way, the conduct of Shri Pukh Raj Purohit Deputy Superintendent of Police in relation to the proceedings of this case before the Trial Court is very much relevant. 30. The Learned Sessions Judge had framed charge against the appellant on February 26, 1993 and on that day he had directed to issue summons to all the witnesses including Shri Pukh Raj Purohit, Deputy Superintendent of Police. 30. The Learned Sessions Judge had framed charge against the appellant on February 26, 1993 and on that day he had directed to issue summons to all the witnesses including Shri Pukh Raj Purohit, Deputy Superintendent of Police. The case was adjourned to procure his presence in the court on 15.4.1993, 16.4.1993, 8.6.1993, 9.6.1993, 11.6.1993, 15.6.1993, 3.8.1993, 4.8.1993, 10.9.1993, 14.9.1993, 17.9.1993, 19.11.1993, 23.11.1993, 18.1.1994, 12.2.1994, 15.2.1994, 18.3.1994, 22.3.1994, 10.5.1994, 3.6.1994, 14.6.1994, 1.7.1994, and 26.7.1994. The learned sessions Judge not only issued the summons of the witnesses, but also bailable warrants to procure his attendance before the Court. The appellant was in judicial custody and the hearing of the case was adjourned for the last time at several occasions with that remark. Shri Pukh Raj Purohit did not lend the assistance of his valuable evidence to the Court. The conduct of Shri Pukh Raj Purohit clearly shows that he had deliberately avoided to appear before the Court either for the reason that he did not pay required respect and care to the process issued by the court or did not want to enter the witness box to depose falsehood. Non-assistance to the Court in disposal of a case involving such heinous crime by a deliberate act of commission on the part of a responsible police officer of the position of a Deputy Superintendent of Police does really reflect upon his attitude towards the discharge of his official duties in the affairs of the State in the matter of prevention of Crime. His absence from the list of examined witnesses has not only created doubt in the mind of the Court with regard to the truthful character of the prosecution evidence, but has also, in a sense, facilitated the acquittal of the accused of such a crime. 31. In view of the above discussion, I am clearly of the opinion that the mandatory provisions contained in Section 50 of the Act were consciously and deliberately violated in this case. Such conclusion is reinforced by the fact that though in the FIR Pappu Jat and Raju Verma were arrayed as co-accused and they were referred to as the persons responsible for commission of such offences, they were not challaned. Such conclusion is reinforced by the fact that though in the FIR Pappu Jat and Raju Verma were arrayed as co-accused and they were referred to as the persons responsible for commission of such offences, they were not challaned. Even it is not gathered from the material on the record of the case that P.W.11 Shanker Lal ASI, who had conducted the investigation in this case and P.W.3 Mansingh SHO and Shri Pukh Raj Purohit Dy. S.R, who both are stated to have supervised the entire search and seizure proceedings, particularly Shri Purohit Dy. S.R who, in his capacity of the Circle Officer of the police station concerned, must have supervised and from time to time guided the progress of the investigation, ever thought of conducting the investigation with regard to the involvement of Pappu Jat and Raju Verma, who were not only reported to have employed the appellant, a boy of 18 years of age, to deliver the narcotic substance to an unknown person and were thus reported to be carrying on their antisocial activities. In that very town but were also made co-accused in the First Information Report lodged by Mansingh, SHO himself. No efforts to know and establish the identity of the prospective receiver of the narcotic substance appears to have been made. This aspect of the conduct of the SHO and the ASI of the police station and of the Dy. S.R responsible for the enforcement of law at that police station substantially and adversely affects the worth and value of the evidence of the police officials examined in this case. The quantity of the evidence produced in this case thus fails to raise the quality of the evidence required to make the basis for the conviction of the appellant. 32. To conclude, for the reasons stated herein above, I find the prosecution evidence in this case untrustworthy and unreliable. The prosecution evidence leaves much for doubt and the benefit of such doubt reasonably goes to the appellant.2. S.B. CR. Appeal No. 362/1995 : Reghunath v. State . 33. The appellant in this appeal has been found guilty of the offence under Sec. 8/15 of the N.D.P.S. Act, convicted therefor and sentenced to 10 years R.I. and a fine of Rs. 1 Lac or in case of default in making payment of fine to under go further R.I. for six months. 33. The appellant in this appeal has been found guilty of the offence under Sec. 8/15 of the N.D.P.S. Act, convicted therefor and sentenced to 10 years R.I. and a fine of Rs. 1 Lac or in case of default in making payment of fine to under go further R.I. for six months. The prosecution case against him was that on January 13, 1993 at about 3.00 P.M. P.W.1 Sri Chandra Shekhar, Excise Inspector, Alwar, while he was patrolling in village Sankhla, Alwar, got a secret information to the effect that the appellant possessed poppy straw, without any license, at his house in `Nathon-Ka-Bass. Chandra Shekhar reduced the information in writing, Ex.P1 as per section 42, wherein he mentioned the reasons for not obtaining the requisite search warrant from the competent authority. Sri Chandra Shekhar alongwith his guard, Daya Ram, reached Nathon-Ka-Bass, which was not far away from village Sankhla. There he found the appellant present at his hutment. The Excise Inspector summoned P.W.3 Kaloo and P.W.4 Sultan from the hutments close-by and in their presence made a search of the hut of the appellant. Before making the search Shri Chandra Shekhar had allegedly asked the appellant if he would like his hut to be searched in presence of some gazetted officer and on appellants expressing no necessity for that the Excise Inspector had conducted the search. On search, the appellant was "found in possession of 1.500 Gms. of Poppy straw powder, kept in a plastic bag, without having license therefor. The Excise inspector seized the said substance vide seizure memo Ex.P2 and prepared a sample of 250 Grams therefrom. The sample and the remaining powder were duly sealed in separate packets in the presence of the above named two independent witnesses, P.W.3 Kaloo and P.W.4 Sultan. The sample powder was later on sent to Forensic Science Laboratory for Rajasthan at Jaipur through RW.2 Ram Avtar Pancholi, guard. On Chemical examination the sample powder gave positive results for the presence of opium therein. The Excise Inspector then obtained certificate date 22.4.1993 from secretary Gram Panchayat Sankhla verifying that the house, shown in the site map as belonging to the appellant, did in fact belong to him. On Chemical examination the sample powder gave positive results for the presence of opium therein. The Excise Inspector then obtained certificate date 22.4.1993 from secretary Gram Panchayat Sankhla verifying that the house, shown in the site map as belonging to the appellant, did in fact belong to him. The complaint was, however, filed in court on January 3, 1994 The learned Special Judge tried the appellant on the charge under section 8/15 of the N.D.P.S. Act and finding him guilty of the same sentenced him to the punishment, as stated above. 34. Dr. Y.C. Sharma urged that P.W.1 Shri Chandra Shekhar, Excise Inspector, has acted both as complainant as well as investigator in the present case and as such his sole testimony cannot be made the basis of conviction of the appellant. The learned counsel further urged that the mandatory provisions of Sections 42 and 50 of the N.D.PS. Act were not complied with in as much as the alleged refusal of the appellant to get his hut searched in the present of a gazetted officer and in the absence of a warrant from a Magistrate was not recorded in writing and the copy of the search memo was not forwarded to the immediate superior officer. In substance, Dr.Sharma vehemently urged that the sole testimony of Chandra Shekhar Excise Inspector was too insufficient to hold the appellant guilty of an offence which is to be visited with minimum detention of the accused in jail for 10 years and a fine of Rs. 1,00,000/-(0ne Lakh). 35. In the present case the prosecution examined four witnesses in all. P.W.1 Shri Chandra Shekhar is the complaint investigator himself. He has narrated all the facts stated above. P.W.2 Shri Ram Avtar Pancholi is the guard who took the sealed packet of the poppy straw powder to the Forensic Science Laboratory at Jaipur. PW.3 Shri Kaloo Ram and P.W. 4 Shri Sultan are the two independent witnesses whom the Excise Inspector had called from the adjoining huts to witness the search and seizure proceedings. Both these witnesses have turned hostile and they did not support the prosecution case at all. They even denied their thumb-impressions on the seizure memo. PW.3 Shri Kaloo Ram and P.W. 4 Shri Sultan are the two independent witnesses whom the Excise Inspector had called from the adjoining huts to witness the search and seizure proceedings. Both these witnesses have turned hostile and they did not support the prosecution case at all. They even denied their thumb-impressions on the seizure memo. Shri Daya Ram Constable who had allegedly accompanied the Excise, Inspector on petrol duty and was asked to bring the independent witnesses at the time of search and seizure proceedings and was stated to have witnessed the entire proceedings had appeared before the trial Court for being examined on the very date fixed for the purpose but for reasons best known to the person in charge of the prosecution was given up and thus was not examined. In this way the conviction of the appellant in this case is based on the sole-testimony of P.W.1 Shri Chandra Shekhar, Excise Inspector. 36. It is by now, as has been discussed in earlier part of this order, well settled that the testimony of a police witness cannot be discarded on the sole ground that he happens to be a police official. No presumption can be raised is law that each and every police witness is interested in the success of the prosecution case. Even if a police witness happened to be the complainant as well as the collector of the evidence in the case, his testimony cannot be rejected outright for that reason.(See E. 1996 (1) SCC 427). His dual capacity of being a complainant as well as the investigator of the case simply raises the degree of care and caution on the part of the Court to be taken in appreciating the worth and value of such police witness. No rule of thumb can be made applicable in such cases. Each case shall have to be judged on its own facts and merits. In one case the testimony of a complainant-cum-Investigator police witness may be found quite trustworthy and reliable. In another case it may not be so. No rule of thumb can be made applicable in such cases. Each case shall have to be judged on its own facts and merits. In one case the testimony of a complainant-cum-Investigator police witness may be found quite trustworthy and reliable. In another case it may not be so. The extent of interest of the police witnesses in the case, the availability or non-availability of another person to act as investigator, the circumstances obliging or compelling the complainant to act as an investigator of the case also and all such other factors shall have to be examined before accepting or discarding the testimony of a police witness acting both as a complainant and an investigator in the same case. To conclude, the mere fact that a police witness has acted both as a complainant/informant and as investigator of the case does not vitiate the trial of the accused. 37. In the instant case P.W.1 Shri Chandra Shekhar, being an authorised person under Section 42 (1) of the State Excise Department, had the authority to conduct search and seizure. Investment in him of the power to investigate the offence as per Section 53 of N.D.P.S. Act was not challenged before me. By virtue of his duties he was required to act both as a complainant as well as investigator of the case. After having conducted the search, seized the Narcotic substance and arrested the accused in the course of search and seizure proceedings it was neither the requirement of any law nor any rule of procedure for him to have handed over the further investigation of the case to any other person. As per provisions of Section 36A (1)(d), the Excise Inspector was competent to file a complaint of the Commission of the offence before the competent Court. The argument of Dr. Sharma to the contrary is therefore, over-ruled. 38. It was next urged by Dr. Sharma that with the two eye-witnesses, P.W.3 Kaloo and P.W.4 Sultan, turning hostile and the third, Daya Ram Constable having not been examined the prosecution case rests on the sole-testimony of P.W.1 Chandra Shekhar, Excise Inspector. The argument of Dr. Sharma to the contrary is therefore, over-ruled. 38. It was next urged by Dr. Sharma that with the two eye-witnesses, P.W.3 Kaloo and P.W.4 Sultan, turning hostile and the third, Daya Ram Constable having not been examined the prosecution case rests on the sole-testimony of P.W.1 Chandra Shekhar, Excise Inspector. It was submitted that apart from the fact that this witness was an interested witness for the reasons, dealt with above, his sole-testimony suffers from certain improbabilities exhibiting un-natural conduct and behaviour in the discharge of his official duties and, therefore, he was not trustworthy and reliable so as to base conviction in this case. 39. The learned Public Prosecutor on the other hand, submitted that since PW.1 Chandra Shekhar bore no grudge or animosity against the appellant and had no animus to launch a false prosecution against him, his sole-testimony may safely be made basis for conviction of the appellant. 40. Under the English Law a good number of Statutes still insist on plurality of witnesses to prove the existence of some particular fact and prohibit conviction for certain categories of offences on the basis of the testimony of single witness. But in our system of administration of justice the maxim that Evidence has to be weighed and not counted and quality and not quantity of evidence should dictate judgements has been given statutory recognition in and by Section 134 of the Evidence Act which reads as under:- "Section 134. No particular number of witnesses shall in any case be required for the proof of any fact." 41. Highlighting the difference and distinction on the point between the English Law and the India Law, in the case of Mohd. Sugal Esa Maman Ref Alalah v. king (AIR 1946 P.C.3) their lordships of the Privy council observed:- "Once there is admissible evidence a Court can act upon it, corroboration unless required by statute, goes only to the weight and value of the evidence. It is sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law." 42. The correctness of the view as expressed by the Privy Counsel was considered and examined by the supreme court in the case of Vadivellu Thevar v. State of Madras ( AIR 1957 SC. 614 ) and their lordships observed that. The correctness of the view as expressed by the Privy Counsel was considered and examined by the supreme court in the case of Vadivellu Thevar v. State of Madras ( AIR 1957 SC. 614 ) and their lordships observed that. "On a consideration of relevant authorities and the provisions of the Evidence Act, the following proposition may be safely stated as firmly established." (1) As a general rule, a Court can add and act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. (2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogus character. (3) Whether corroboration of the testimony of a single witness is or is not necessary must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the judge before whom the case comes." 43. The above view expressed by the Apex Court has all along been consistently followed in subsequent decisions in the cases of Ram Ratan v. State of Rajasthan ( AIR 1962 SC 424 ) , Gule Chand v. State of Rajasthan, ( AIR 1976 SC 560 ) , Vahalu Bhushan v. State of Tamil Nadu ( AIR 1989 SC 236 ) , Jagdish Prasad v. State of M.P. ( AIR 1994 SC 1251 ) , State of Haryana v. Manoj Kumar (1994) I SCC 495, and Kartik Malhar v. State of Bihar (1996) 1 SCC 614 . 44. It is thus well settled proposition that conviction can be recorded on the basis of the testimony of a single witness provided that such testimony is of sterling worth, admitting no adverse circumstance against it and inspiring confidence in the court. Let us now examine the single testimony of RW.1 Sri Chandra Shekhar, Excise Inspector at this altar. 45. P.W.1 Sri. Chandra Shekhar has stated all the facts narrated above and the same need not be repeated. Let us now examine the single testimony of RW.1 Sri Chandra Shekhar, Excise Inspector at this altar. 45. P.W.1 Sri. Chandra Shekhar has stated all the facts narrated above and the same need not be repeated. It is true that the circumstances under which he had to make a search of the hut of the appellant at `Nathon Ka Bass' without a warrant were such as could have justified his action. He was already on patrol duty in village Sankhala and it was in that village that he had allegedly received the secret information regarding the appellant possessing narcotic substance without any licence. The court of the Magistrate concerned was about 20 km away from that place and the time likely to be consumed in his going to the Magistrate and obtaining a warrant from him could have led to the breaking of the news to the appellant enabling him to remove the evidence of the offence. There was likelihood of the very object of the search being frustrated. The Excise Inspector could have thus proceeded to `Nathon Ka Bass' after reducing the information in writing and recording the grounds for his not obtaining the requisite warrant of search from the Magistrate. He appears to have done that by preparing of the report Ex.P1 in village Sankhla. It can thus be argued that the Excise Inspector had complied with the mandate contained in S.42(1) of the N.D.P.S. Act. But he does not appear to have complied with the other part of the mandate contained in S.42 itself and that adversely affects the value of his testimony regarding compliance of S.42(1). 46. Sub Sec. (2) of Section 42 provides that where an officer takes down any information in writing under sub-sec.(1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. The mandate contained in Sub-section (2) of Section 42 should be read as integral part of the mandate contained in Section 42(1) and the proviso thereto. It gives credibility to the action taken by the officer under Proviso to the Section 42(1). It serves the purpose of a cross-check or cross-verification of the action taken by the officer conducting search, seizure and arrest without warrant or authorisation required to be issued u/s 41 of the N.D.P.S. Act. It gives credibility to the action taken by the officer under Proviso to the Section 42(1). It serves the purpose of a cross-check or cross-verification of the action taken by the officer conducting search, seizure and arrest without warrant or authorisation required to be issued u/s 41 of the N.D.P.S. Act. It puts a check on the arbitrary action of conducting search, seizure and arrest at the free-will or whims of the officer. Compliance of the mandate contained in Sub-Section (2) of Sect.42 has, therefore/to be insisted upon for successful prosecution of offenders under the N.D.P.S. Act. In the instant case neither Shri Chandra Shekhar has stated on oath that he sent a copy of Ex.P 1 to his immediate official superior nor any evidence, oral or documentary, was brought on the record of the case to prove compliance of Sec. 42(2) of the N.D.P.S. Act. 47. At this stage it was pointed out by the Learned Public Prosecutor that a report of all the particulars of arrest of the appellant and seizure of Poppy straw powder from his possession (Ex.P2) was made by Sri. Chandra Shekhar and therefore, it would be regarded as sufficient compliance of Sub-Section (2) of Section 42. The argument advanced is misconceived. 48. S.57 mandates that whenever any person makes any arrest or seizure under this Act, he shall within forty eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. Obviously the mandate contained in this provision is quite different in nature and purpose from that contained in Section 42(2). The object of both may be to put a check on the officers of lower rank lest they should abuse their drastic powers but compliance of one does not do away with the necessity of the compliance of the other. One refers to the pre-arrest and pre-seizure stage, the other to the post-arrest and post-seizure stage. The purpose to be served by the former is to enable the official superior to examine and judge the soundness of the reasons to believe to conduct search and seizure without a search warrant or an authorisation. The latter simply gives an information of an act already done. The purpose to be served by the former is to enable the official superior to examine and judge the soundness of the reasons to believe to conduct search and seizure without a search warrant or an authorisation. The latter simply gives an information of an act already done. It may be possible that a composite report regarding the compliance of Sections 42(2) and 57 may be considered as quite proper but that does not minimise the importance of the mandate contained in those two distinct and different provisions in the N.D.P.S. Act. In the instant case PW.1 Shri Chandra Shekhar did not state in his statement that he ever sent a copy of either Ex.P/1 prepared under Section 42(1) or a report of arrest of the appellant and the seizure of poppy straw powder from his possession as requited by section 57 of N.D.P.S. Act. A copy of the arrest memo has no doubt been placed on the record of the trial Court but such copy does not give any indication that it was ever actually sent to the immediate official superior at the required point of time. Thus neither Section 42(2) nor Section 57 is found to have been complied with by Shri Chandra Shekhar in this case. 49. Another infirmity noticed in the testimony of Shri Chandra Shekhar. Excise Inspector is with regard to non-compliance of the provisions contained in Section 52 of the N.D.P.S Act, Section 52 obliges the officer to forward the person arrested and the Artical seized to the officer in-charge of the nearest police station or the officer empowered u/s 53. In his statement recorded in court Shri Chandra Shekhar did not depose to have complied with this mandate. Nor is there any evidence on the record of the case to prove the compliance of the provisions contained in Sections 52 of N.D.P.S. Act. 50. In his statement recorded in court Shri Chandra Shekhar did not depose to have complied with this mandate. Nor is there any evidence on the record of the case to prove the compliance of the provisions contained in Sections 52 of N.D.P.S. Act. 50. The learned counsel for the appellant further pointed out that non-examining of Daya Ram Constable, who was a material witness in case and he had really accompanied the Excise Inspector as stated by him causes another infirmity in the prosecution case particularly when both the independent witnesses did not support the version given by him the learned Public Prosecutor, however referred to the provisions contained in section 53A of N.D.P.S. Act and submitted that both the independent witnesses had signed the seizure memo, and, therefore, their statements as contained in the seizure memo and as recorded by the Excise Inspector u/s 161 Cr.P.C. should be given due weight. The learned Public Prosecutor urged that in view of illustration(e) to section 114 of the Evidence Act official acts may be presumed to have been regularly performed. 51. S.53 invests the power of an officer in charge of a police station on the officers of certain other departments. It was not disputed before me that Shri Chandra Shekhar, Excise Inspector was empowered u/s. 53 to conduct the enquiry into the commission of the offences against the NDPS Act and therefore, was having the powers to record the statements of the witnesses u/s 53A and to call for the reports u/s 67 of the NDPS Act. S.53A makes the statements recorded by him relevant and admissible in evidence. But while acting under the powers conferred upon by him by Section 53 and 53A though he prepared the seizure memo Ex.P1 and got the same signed by the two independent witnesses, P.W.3 Kaloo and P.W.4 Sultan, as also by Daya Ram constable and also examined Kaloo and Sultan u/s 161 Cr.P.C. yet he did not so examine Daya Ram constable. He did not tell the reason of not examining Daya Ram, constable in the manner he did examine Kaloo and Sultan. Daya Ram is stated not only to have accompanied him through out the entire enquiry but his services would have also been utilised for procuring the attendance or presence of the two independent witnesses on the spot at the time of effecting search. Daya Ram is stated not only to have accompanied him through out the entire enquiry but his services would have also been utilised for procuring the attendance or presence of the two independent witnesses on the spot at the time of effecting search. It must be pointed out that Daya Ram constable was cited as a prosecution witness in the charge-sheet and he did appear before the trial Court to give his evidence in the case but he was given up by the prosecutor in charge of the prosecution. The reason seems to be that he was not examined as a witness in the course of enquiry by Shri Chandra Shekhar. This act of omission on the part of the Excise Inspector resulted in not coming a material evidence on the record of the case. This further reduces the worth and value of the single testimony of P.W.1 Shri Chandra Shekhar. 52. It is true that by reason of Section 114 illustration(e) of the Evidence Act 1872 a court "may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case"and it may presume that "judicial and official acts have been regularly performed" but, as laid down in Saiyed Mohds case(Supra), there is no room for such presumption because the possession Of illicit articles under the NDPS Act has to be satisfactorily established before the court. The fact of seizure thereof, after a search, has to be proved. When evidence of search is given all that transpired in its connection must be stated. Very relevant in this behalf is the testimony of the officer conducting the search. In view of this approach of the Apex Court with regard to the offences under the NDPS Act Shri Chandra Shekhar was required to explain his act of omission of not examining Daya Ram constable during the course of the enquiry if actually the said constable was an eye witness to all that is stated in the seizure memo Ex.P1. 53. In the same context it must also be stated that the Excise Inspector called for a report u/s 67 from the Secretary/Sarpanch Gram Panchayat Sankhla regarding the ownership of the house at Nathon Ka Bas which he had searched. 53. In the same context it must also be stated that the Excise Inspector called for a report u/s 67 from the Secretary/Sarpanch Gram Panchayat Sankhla regarding the ownership of the house at Nathon Ka Bas which he had searched. This report Ex.P9 was called for on 17.4.93. The witness did not tell the necessity of calling such a report so late. That apart under section 67 he could have(i)called for information for the purpose of satisfying himself whether there had been any contravention of N.D.P.S. Act or any rule or order made, thereunder,(ii) require a person to produce or deliver any document or thing useful or relevant to the enquiry, or(iii) examine any person acquainted with the facts and circumstances of the case. If the Excise Inspector thought it fit to enquire about the ownership of the house which he had searched at `Nathon Ka Bas' he could have examined the Secretary or the Sarpanch of the village panchayat under clauses (c) of Sec. 67 as the evidence to be collected by him did not attract the provisions contained in clause (a) or clause (b) of the said provision. Calling a report by him in that manner after a lapse of sufficient time further weakens the value of his testimony. 54. The above are the instance of the non-compliance of various provisions of the NDPS Act by the Excise Inspector. But it is settled law that every deviation from the details of the procedure prescribed for search does not necessarily lead to the conclusion that search by the officer renders the recovery of the article made pursuant to an illegal search, irrelevant evidence nor the discovery of the fact in admissible at the trial. Weight has to be attached to such evidence, but that all depends upon the facts and circumstances of the given case. When the various instances of non-compliance of various provisions of the Act by the sole witness in this case are read in the light of his subsequent conduct of not complying with the post-search requirements of various provision and his filing the complaint after a lapse of about a year the commission of the offence the value of his testimony is further diminished and ceases to inspire that confidence in court which is required for basing a conviction on single testimony. Almost all the enquiry had been completed on January 13, 1993 with the search, seizure and arrest proceedings having taken place on that day, the site-map made and witnesses examined on that very day. The report of the Chemical Examiner Ex.P.8 dated 1-2-93 must have also been received in the month of February or at the most March 1993 but the complaint/charge-sheet was filed as late as on January 3, 1994. The reason for filing the complaint so late even after the completion of all the necessary enquiry was not explained either in the reports submitted or the statement given by Sri Chandra Shekhar in court. This aspect of this case further creates doubt in the mind of this court with regard to the truthful character of the testimony of the Excise Inspector P.W.1 Shri Chandra Shekhar. The benefit of such doubt should reasonably go to the appellant. 55. In view of the above discussion with regard to the merits of the prosecution case in the two appeals, the appellants therein are entitled to acquittal. Therefore, the impugned judgments in both the appeals are set aside and the appeals allowed. The appellants in the two appeals are hereby acquitted of the offences they were convicted of and they are directed to be set to their liberty, if not wanted in any other case. 56. While parting with the records of these appeals, I consider it to be the duty of this court to remind the authorities concerned of the necessity of issuing directions to the officers, entrusted with the duty of strictly administering the N.D.P.S. Act, in compliance of the observations made by the Supreme Court in the case of Sayed Mohd. Saiyed Umar Saiyad and others (Supra). It is necessary so to do as offences against the NDPS Act attract heavy punishment for the offenders. Therefore, a heavy duty is cast upon the prosecuting agency to comply with the statutory provisions relating to pre-arrest search and seizure matters as well as post-search and seizure requirements lest true and good cases should fail for doubtful or half-hearted compliance of the relevant provisions of the NDPS Act. *******