Judgment S.C. Mital, J.-Appellant Kulwant Singh and Sumer Singh (since acquitted) were tried for the offence under Section 8 read with Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred “NDPS Act”) by learned Special Judge, NDPS Cases, Sri Ganganagar in Sessions Case No. 30/93. The appellant Kulwant Singh was held guilty for the aforesaid offence and sentenced to 12 years’ rigorous imprisonment and Rs. one lac fine else to further undergo rigorous imprisonment for one year. Sumer Singh alias Shera was acquitted of the charge by the same Judgment . Feeling aggrieved by the aforesaid Judgment of conviction and sentence, this appeal has been preferred by Kulwant Singh accused. 2. I haveheard the learned Counsel for the appellant and the learned Public Prosecutor. The learned Counsel for the appellant has confined his arguments on two points only and therefore it is not necessary to narrate the prosecution case in detail. The learned Counsel for the appellant has raised the contention that the mandatory provision under Sub-section (2) of Section 42 NDPS Act has not been complied with. Secondly the prosecution has also failed to establish that the samples sent to Forensic Science Laboratory, Jaipur were kept intact and sealed till those were deposited there for chemical examination. The learned Public Prosecutor appearing on behalf of the State has tried to support the impugned Judgment . 3. In order to appreciate the arguments put forth on behalf of the appellant brief facts may be stated here. C.I. SHO, Sadul Shahur Sukhdeo Singh received a secret information on 27-5-93 at 1.45 a.m. that Kulwant Singh son of Tara Singh by caste Soni, resident of Ward No. 13, Sadul Shahar has 9/10 Kg. contraband opium in his possession and he will proceed to Punjab to seel the opium. The secret information was taken down in writing Exhibit-P15 and a copy of the same Exhibit-P 16 was forwarded to the official superior i.e. Circle Officer Dy. S. P. Sangaria, which was received by him on the same day at 2.00 a.m. C.I. SHO, Sadul Shahar Sukhdeo Singh (PW.10) also recorded reasons of his belief Exhibit-P 17 that search warrant or authorisation could not be obtained without affording opportunity for the concealment of the contraband opium or facility for the offender to escape. The contents of Exhibit-P 17 show that a copy was forwarded to S.P., Sri Ganganagar. The contents of Exhibit-P 17 show that a copy was forwarded to S.P., Sri Ganganagar. Shri Mahendra Singh Choudhary, Dy. S.P. Sangaria (PW. 11) arrived at Police Station, Sadul Shahar with the polic party and laid a trap around the house of the appellant Kulwant Singh forming three parties, one headed by him and other two by C.I., SHO Sukhdeo Singh (PW.10) and Jagdish Singh, S.I. (PW.5). PW.2 Mani Ram Verma and PW.3 Banshidhar Sharma were associated as motbirs. It is alleged that Kulwant Singh came out of his house on a Motorcycle with a bag tied on it. He was encircled by the police party and after compliance of the provisions under Section 50 NDPS Act, search was conducted and 3 Kg. 900 gms. semi liquid contraband opium was recovered from the bag. Two samples were taken and sealed marked Al and A2. In other packet 2 Kg. 700 gms. contraband opium was seized and samples taken were marked Bl and B2. Kulwant Singh was arrested and at his instance 3 Kg. 500 gms. contraband opium contained in three polythene packets was recovered from an iron box kept in the residential room of his house and Rs. 36,000/-the sale proceeds of contraband opium. The key of the box was found in the pocket of his shirt. The samples taken and sealed from each polythene packet were marked Dl, D2, El, E2 and Fl, F2. Sample of white powder from a plastic bottle recovered from the box was also taken marked Gl. After complying, all the proceedings on the spot F.I.R. Exhibit-P19 was lodged at Police Station, Sadul Shahar by Sukhdeo Singh C.I., a case under Section 8/18 NDPS Act was registered and after due investigation charge-sheet was submitted against appellant Kulwant Singh and Sumer Singh (since acquitted) in the Court of Special Judge, NDPS Cases, Sri Ganganagar. Appellant Kulwant Singh denied the accusation and stated in his statement under Section 313, CrPC that he has been falsely implicated in this case because he asked the SHO, Sadul Shahar to make payment of the charges of stiching his clothes and clothes of other police personnels. There was an altercation between him and Sukhdeo Singh, SHO for the payment of the charges before 3 or 4 days. He was going on Motor Cycle on 26-5-93 at 6 p.m. with Pampa Ram to purchase a shop having Rs. There was an altercation between him and Sukhdeo Singh, SHO for the payment of the charges before 3 or 4 days. He was going on Motor Cycle on 26-5-93 at 6 p.m. with Pampa Ram to purchase a shop having Rs. 36,000/ - which he had arranged by selling his plot for Rs. 40,000/-. He was taken to Police Station by Sukhdeo Singh, SHO and Constables where Sukhdeo Singh, C.I. took Rs. 36,000/-and seized the Motor Cycle also. Second day he came to know that a false case about recovery of contraband opium has been fabricated against him. 4. The search in question stated to have been conducted between sunset and sunrise on 27-5-93 from the conveyance of the appellant i.e. Motor Cycle and his residential house. The learned Counsel for the appellant has argued that search warrant should have been obtained from the Court” of Judicial Magistrate, Sadul Shahar. There were no circumstances to show that the search warrant could not be obtained without affording opportunity to conceal the contraband opium or the facility for the escape of the accused. Learned Public Prosecutor has contended that the secret information was received at 1.45 a.m. and the accused was likely to proceed to Punjab at any time for selling the contraband opium. It is subjective satisfaction of the concerned officer which has been recorded in this case as Exhibit-P 17 which is sufficient compliance of the provisions of Section 42 NDPS Act. In view of the facts and circumstances of the case 1 find that SHO, Sadul Shahar had reasonable grounds to believe that if time was taken to obtain search warrant it will afford opportunity to the accused to conceal the evidence or provide him facility to escape. Therefore, it is found that-by recording the reasons of his belief compliance of the provision of Section 42 NDPS Act has been made and no illegality can be said to have been committed in conducting the search without obtaining search warrant. It is further contended that a copy of Exhibit-P17 has not been forwarded to the official superior as envisaged under Sub-section (2) of Section 42 NDPS Act. The violation of this mandatory provision vitiates the appellant’s trial and conviction. A persusal of Exhibit-P 17 shows the writing that a copy is being sent to Superintendent of Police, Sri Ganganagar. It is further contended that a copy of Exhibit-P17 has not been forwarded to the official superior as envisaged under Sub-section (2) of Section 42 NDPS Act. The violation of this mandatory provision vitiates the appellant’s trial and conviction. A persusal of Exhibit-P 17 shows the writing that a copy is being sent to Superintendent of Police, Sri Ganganagar. But the prosecution has not proved by oral or documentary evidence that copy of Exhibit-P 17 was received by Superintendent of Police, Sri Ganganagar. However, superior official of SHO, Sadul Shahar was Dy. S.P. Sangaria, who on receiving the copy of the secret information came to Police Station and Exhibit-P 17 was placed before him, which was perused and signed by him. I am inclined to accept the contention put forth by the learned Public Prosecutor that the original itself has been perused by the official superior then in the instant case it should be considered as sufficient compliance of Sub-section (2) of Section 42 NDPS Act. The purpose of sending the copy to the superior official is to provide safeguard and to ensure that search of building, conveyance or enclosed place are not conducted between sunset and sunrise on flimsy grounds and without obtaining search warrants unless search officer records the ground of his belief that time involved in obtaining search warrant or authorisation will afford opportunity for concealing the evidence or facility for the escape of an offender. Jit has also been made obligatory upon the search officer to send a copy thereof to immediate official superior for his supervision and satisfaction. In the instant case the immediate official superior was Dy. S.P., Sangaria and he himself came at the Police Station and perused Exhibit-P 17 and signed it in token of his own .satisfaction. In view of the above facts and circumstances of the instant case, I do not find any violation of the mandatory provision under Section 42, NDPS 5. It is vehemently argued that there is serious and reasonable doubt that the samples were not kept intact and sealed till the samples were entrusted to Forensic Science Laboratory, Jaipur. The possibility of tampering with the samples has not been ruled out by the prosecution because samples containing 30 gins, of contraband opium were sealed but three samples Al, El and .F1 weighed approximately 23 gms. alongwith the polythene wrapper. The possibility of tampering with the samples has not been ruled out by the prosecution because samples containing 30 gins, of contraband opium were sealed but three samples Al, El and .F1 weighed approximately 23 gms. alongwith the polythene wrapper. Two samples Bi and Dl weighed 25 gms. alongwith the polythene wrapper. It is also pointed out that the five samples were deposited in Malkhanaon 27-5-93 as shown in Exhibit-P1A. The entry in Column No. 10 shows that samples were delivered to Brij Lal (PW.4) on 18-6-93 for taking them to Forensic Science Laboratory, Jaipur, for which forwarding letter Exhibit-P22 was prepared on 10-6-93 in the S.P. Office. It is argued that Brij Lal (PW.4) has cetegorically stated that he went to S.P. Office to get the forwarding letter issued and on that day took the samples with him. But there is no entry in the Malkhana Register Exhibit-P1 with regard to taking the samples from the Malkhana and handing over the samples to Brij Lal (PW.4) on 10-6-93. It clearly suggests that the samples have been taken out from Malkhana on 10-6-93 without making any entry and a possibility of tampering with the seals and the samples cannot be ruled out. The learned Public Prosecutor submitted that the difference in weight could be due to the fact that when the samples were taken the opium was in semi-solid condition and it was likely to dry up by the time it reached at the Forensic Science Laboratory, Jaipur. Moreover, the difference is negligible and it may be due to weighing the’ article by scales used by police and the Chemical Examiner. My attention was also drawn to the statement of Sukhdeo Singh (PW. 10) who has deposed in the cross-examination that the samples were not taken out from Malkhana and were not sent to the S.P. Office on the day when the forwarding letters got prepared from the concerned clerk of the S.P. Office. The learned Public Prosecutor has contended that the statement of Sukhdeo Singh should be believed who was C.I., SHO, Sadul Shahar and the statement given by Brij Lal, Constable (PW.4) should not be given importance which appears to have been made inadvertently that he took the samples to the S.P. office on 10-6-93. 6. I have given my earnest consideration to the rival contentions. 6. I have given my earnest consideration to the rival contentions. So far as the difference in the weight of the samples is concerned, I am inclined to accept the contention of the learned Public Prosecutor but the categorical statement of Brij Lal (PW.4) cannot be discarded which creates doubt about the factum of keeping the samples intact and sealed till these were entrusted to the Forensic Science Laboratory, Jaipur. There is material contradictions in this respect in the statement of Brij Lal (PW.4) and Sukhdeo Singh, SHO, Sadul Shahar (PW. 10) which the prosecution has failed to reconcile. Brij Lal (PW.4) has clearly stated that he had taken the samples to S.P. Office for getting the seals compared and to get the forwarding letter issued from there for Forensic Science Laboratory, Jaipur. He has further stated in the cross-examination that no entry in this regard was made in the Mallthana Register. Therefore, it appears that the samples were taken out from Malkhana on 10-6-93 also without any entry in the Malkhana Register by SHO, Sadul Shahar and the possibility of tampering with the seals and the samples cannot be ruled out. The prosecution has failed to establish that the samples were not tampered with and the samples deposited in the Forensic Science Laboratory, Jaipur contained the same material, which is alleged to have been recovered from the appellant. In such state of affairs, I am of the view that the F.S.L. report Exhibit-P23 cannot form a basis for the conviction of the appellant for the offence charged against him I have perused the impugned Judgment and I find that this aspect of the case has not been considered by the learned trial Judge. The prosecution has failed to prove the charge under Section 8 read with 18, NDPS Act against the appellant. 7. For the reasons stated above, the appeal is hereby allowed and the impugned Judgment of conviction and sentence passed against the appellant is hereby set aside. He is acquitted of the offence under Section 8 read with 18 of the Narcotic Drugs & Phychotropic Substances Act, 1985. The impugned order to forfeit Rs. 36,000/-, Motor Cycle and Rs. 200/-is also set aside which shall be returned to the appellant after expiry of the period of limitation for Special Leave Petition. The appellant Kulwant Singh be set at liberty if not required in any other case.