JUDGMENT - S.S. PARKAR, J.:---The appellant convicted under the provisions of the N.D.P.S. Act has preferred this appeal impugning the order of his conviction and sentence recorded by the Sessions Judge, Solapur in Sessions Case No. 125 of 1997 against him on 31st July 1997. 2. The prosecution case briefly stated is as follows : On 18th March 1997 at about 1 O'Clock in the afternoon Police Inspector, L.C.B. Solapur, P.W. 13 received information that the appellant was coming by an ambassador car to his house situated in Dhor Galli, Solapur, carrying ganja. He immediately gave intimation about the said information to his Superior A.C.P. Patil and the Special Executive Magistrate A.C.P. M.K. Bhosale and obtained their permission. He immediately deputed some police staff to the said place. He then called two panchas to his office and explained them about the information. Thereafter the said Police Inspector, two Panchas, A.C.P. Patil and A.C.P. Bhosale, Special Executive Magistrate and other staff members including the Police Photographer proceeded for raid. First the raiding party went to Sadar Bazar Police Station and recorded the information received by him in the station diary of the said police station. This information was given at that police station to P.S.O. who entered the said information in the station diary which is marked Exhibit 29. From there the raiding party went to the place where the suspect was to arrive. After the raiding party reached the spot one ambassador car came to Dhor galli and stopped by the side of the road. The person who was driving the car came out and went inside the house and returned back with a cover of the car which he put on the car and again went back inside the house. When the raiding party called out the name of the appellant he came out of the house. He was informed about the purpose of the raiding party to have search of the car. The raiding party offered their personal search to the appellant in the presence of the Executive Magistrate, informing him that A.C.P. Bhosale who was accompanying them was an Executive Magistrate. When the appellant declined to take their search he was asked to remove the cover of the car and open the door of the car. The raiding party offered their personal search to the appellant in the presence of the Executive Magistrate, informing him that A.C.P. Bhosale who was accompanying them was an Executive Magistrate. When the appellant declined to take their search he was asked to remove the cover of the car and open the door of the car. The car was found containing one plastic bag of white colour behind the front seat and one green coloured suitcase was found on the right side of that set. The bag and the suitcase were found containing ganja. Thereafter the appellant opened the dicky of the car. Three gunny bags full of ganja were found in the dicky. Besides the gunny bags one package of ganja was found in the dicky. That package was of blue colour plastic paper. Weighing operator was called on the spot. From each bag a sample of 1 kg. ganja was taken out and paper labels were pasted on the sample packets as well as on the suitcase and gunny bags and the package with blue coloured plastic cover. Search of the house of the appellant was taken but no contraband was found. The articles were seized and panchanama of seizure was made which is Exhibit 27. 3. When the accused was interrogated he disclosed that he was to carry that ganja to one Mohan shinde, who was accused No. 2 before the trial Court but had been acquitted. The ganja was to be taken to the field of father-in-law of accused No. 2 which was to be shown to him accused No. 2. This information given about accused No. 2 was recorded by P.W. 13 and they went to the village of the accused No. 2. In the hut of the brother-in-law of accused No. 2 in the field of one Bhise, one gunny bag containing ganja was found which was seized under the panchanama. In respect of that, crime was registered at Chandachan Police Station in Karnataka Sate. 4. The articles and samples in this case were taken to the Sadar Bazar Police Station and were handed over to the Muddemal Clerk at about 9 p.m. The crime was registered and the samples of ganja were sent to the CA's Office on 30th May, 1997 along with a Constable under a forwarding letter. 4. The articles and samples in this case were taken to the Sadar Bazar Police Station and were handed over to the Muddemal Clerk at about 9 p.m. The crime was registered and the samples of ganja were sent to the CA's Office on 30th May, 1997 along with a Constable under a forwarding letter. The CA report dated 13th June, 1997 was received on 20th June 1997 which is at Exhibit 30. According to the CA report the samples contained ganja. During the investigation statements of witnesses were recorded. The accused No. 2 was arrested on 21-3-97 with which we are not concerned in this appeal. After the investigation was completed charge-sheet was submitted to the Court on 24-6-97. Before the Sessions Court charge under section 20(b) of the NDPS Act was framed against both the accused who pleaded not guilty. The defence of the accused at the trial was of total denial. On behalf of the prosecution 13 witnesses were examined. Four witnesses i.e. P.Ws. 1 to 4, were examined to establish the possession of the car from where ganja was seized. P.W. 1 Salim Shaikh is the garrage owner. P.W. 2 Mohamad Yusuf Shaikh is mechanic and also garage owner. P.W. 3 Ramesh Potdar is the owner of the car bearing No. MPY 3357 from which the contraband was seized. P.W. 4 Manoj Potdar is the son of P.W. 3 who is the car owner. P.W. 5 Mallikarjun Jadhav was taken to the place of seizure for weighing the contraband. P.W. 6 is Ganpat Kharatmal who was the resident of the area where the appellant was staying. P.W. 7 is Head Constable Digambar Jadhav who had lodged the complaint (Exhibit 18). P.W. 8 is Constable Patane who registered the offence against the appellant under C.R. No. 423/97 at Sadar Bazar Police Station. P.W. 9 is Executive Magistrate ACP Bhosale. P.W. 10 is Muddemal Clerk Alli Husen Sayyad. P.W. 11 is Dharmpal Sangale attached to the said Police Station who carried the samples to the office of the CA. P.W. 12 is Ashok Patole who was panch to the seizure panchanama (Exh. 27). P.W. 13 is P.I. Panditrao who had received the information and investigated the offence. 5. P.W. 10 is Muddemal Clerk Alli Husen Sayyad. P.W. 11 is Dharmpal Sangale attached to the said Police Station who carried the samples to the office of the CA. P.W. 12 is Ashok Patole who was panch to the seizure panchanama (Exh. 27). P.W. 13 is P.I. Panditrao who had received the information and investigated the offence. 5. After appreciating the entire evidence on record the learned Sessions Judge, Solapur acquitted the original accused No. 2 and convicted the appellant-original accused No. 1 under section 20(b) of the NDPS Act and sentenced him to suffer R.I. for five years and to pay a fine of Rs. 10,000/- in default R.I. for one year. The said order is under challenge in this appeal. 6. Mr. Solkar, the learned Advocate appearing for the appellant raised number of contentions. Firstly he contended that there was non-compliance with mandatory provisions of section 42 of the N.D.P.S. Act. Secondly, he argued that there was also non-compliance with the mandatory provisions of section 50 of the N.D.P.S. Act. Thirdly, according to Mr. Solkar there are several lacunas in the investigation and, therefore, the prosecution has not proved beyond doubt the seizure of the contraband from the possession of the appellant and, therefore, he is entitled to be acquitted by giving benefit of doubt. 7. So far as the first contention is concerned as regards compliance with section 42 of the Act, it was argued by the defence Advocate that though the seizure had taken place pursuant to the prior information, the same was not reduced to writing as mandated by sub-section (1) of section 42 nor the copy thereof was sent to his immediate official superior as required under sub-section (2) of the said section. In this regard the evidence of P.W. 13 Panditrao shows that after he received the information in his office at about 1 p.m. he informed his superior A.C.P. Shri Patil and obtained permission from him. He thereafter deputed police staff to the place of raid and in the mean time called two panchas, the police photographer and the other police staff and proceeded for the raid. The raiding party first of all went to the Sardar Bazar Police Station and gave this information to P.S.O. who made endorsement about the same in writing in the station diary which is produced at Exhibit 29. The raiding party first of all went to the Sardar Bazar Police Station and gave this information to P.S.O. who made endorsement about the same in writing in the station diary which is produced at Exhibit 29. The said entry in the station diary, though is in the handwriting of P.S.O., but is signed by P.W. 13 who had received the information. According to the said witness he had received the information at 1 p.m. and the entry at Exhibit 29 in the station diary is made at 1.20 p.m. According to Mr. Solkar the said entry cannot be considered as a writing containing the information received by the said witness. Mr. Solkar laid emphasis on the contents of the said writing which, apart from referring to the said information received, also mentions that after the information was received he had informed A.C.P. Patil and Executive Magistrate A.C.P. Bhosale and mentions that after receiving the permission from the higher officer he along with the police staff, photographer and panchas started for the place of raid in the jeep. The said entry, no doubt, appears to have been made as is done in respect of every offence when the police party proceeds to take action in respect of a cognizable offence and Mr. Solkar is right when he contended that this was not a writing recording the information contemplated by section 42(1) of the Act. He further argued that the copy of the writing containing the information was not sent to the immediate official superior as mandated under section 42(2). It is no doubt true that there is no strict compliance with the said two provisions embodied under section 42 of the Act inasmuch as there is no compliance with those provision in letter, though the said provision is held to be mandatory by the Supreme Court in the case of (State of Punjab v. Balbir Singh)1, reported in 1994(3) S.C.C. 299 . The Supreme Court in para 15 of the judgment in Balbir Singh's case has clearly held that the provisions contained in section 42 of the N.D.P.S. Act make it obligatory that such of those officers mentioned therein who had received information, should reduce the same to writing and also record reasons for their belief while carrying out arrest or search as provided under the proviso to section 42(1) and further observed that to that extent they are mandatory and consequently the failure to comply with those requirements affects the prosecution case and, therefore, vitiates the trial. The contents of the station diary entry cannot be said to be compliance with the mandate of section 42(1) of the Act. The evidence of P.W. 13 makes it very clear that there is no writing other than Exhibit 29 which is entered in the station diary at the Sadar Bazar Police Station which was produced on record. P.W. 13 who received the information was not attached to the said police station but was a Police Inspector, L.C.B. Solapur i.e. attached to Local Crime Branch of Solapur where he had not reduced the information into writing. Thus there appears to be no compliance with section 42(1) of the N.D.P.S. Act. Mr. Solkar has tried to emphasise the importance of this absence of reducing the information to writing by P.W. 13 in connection with the other evidence on record which will be adverted to while dealing with his third contention raised in this appeal. 8. However so far as section 42 of the Act is concerned the Supreme Court has held in para 25(3) in Balbir Singh's case that if there is non-compliance with section 42, the same affects the prosecution case and to that extent it is mandatory. But if there is 'delay' whether it was explained or not will be a question of fact in each case. In this case there was no writing to which the information was reduced to by P.W. 13. But the evidence of P.W. 13 shows that he had orally informed his superior officer A.C.P. Patil and subsequently it was reduced to writing in the form of station diary entry and his superior official had accompanied the raiding party in whose presence the seizure had taken place though he was not examined, but the Executive Magistrate who was also a superior, was examined. In any way it does not appear to be a case of total non-compliance with section 42 of the Act. 9. The second contention raised by Mr. Solkar is that there was non-compliance with the mandatory provisions of section 50 of the N.D.P.S. Act inasmuch as though the seizure had taken place pursuant to the prior information received by the P.W. 13, the accused was not given choice to be searched in the presence of either a Gazetted Officer or a Magistrate. Provision under section 50 of the Act has been undoubtedly held to be mandatory and non-compliance therewith, therefore, would vitiate the trial. The evidence of P.W. 13 and other officers does show that after receiving the information P.W. 13 contacted the Special Executive Magistrate Bhosale who is examined as P.W. 9. He had accompanied the raiding party. Apart from the fact that no choice was given to the accused whether he should be searched in the presence of a Gazetted Officer or a Magistrate he was not informed that he had a right to be searched either in the presence of a Gazetted Officer or a Magistrate. The purpose of taking the Executive Magistrate as disclosed in the evidence of P.W. 13 seems to be for the search of the raiding party in the presence of the Executive Magistrate. The relevant portion from the evidence of P.W. 13 in paragraph 1 of his deposition is as follows : "....... I also informed him that Mr. Bhosale with us (is) an Executive Magistrate and whether accused intends to take our search as he has right to take our search in presence of the Executive Magistrate. Mr. Bhosale also gave understanding of the accused about his right to take search of the raiding party. Accused denied to take our search. Then, I asked the accused to remove the cover of the car and he took out the same........." 10. It is clear from the aforesaid deposition that the purpose of taking the Executive Magistrate with the raiding party was for the search of the raiding party and not for the search of the appellant. Accused denied to take our search. Then, I asked the accused to remove the cover of the car and he took out the same........." 10. It is clear from the aforesaid deposition that the purpose of taking the Executive Magistrate with the raiding party was for the search of the raiding party and not for the search of the appellant. The contention of the learned A.P.P. is that no contraband was found in the personal search of the appellant, but the entire contraband was found in the car which according to the evidence was being driven by the appellant and, therefore, provisions of section 50 will not be applicable. It is true that though the seizure had taken place on the basis of prior information yet section 50 of the Act would not apply in this case in view of the decision of the Full Bench of this Court in the case of (Ebanezer v. B.S. Rawat)2, reported in 1996(4) Bom.C.R. 185 . The instant case would be covered by Clause (d) mentioned in para 5 of the said judgment and, therefore, as held in para 22 of the said judgment, section 50 would not be applicable. 11. Lastly Mr. Solkar contended that the entire search has been vitiated. According to him the sample packets and the muddemal articles were not sealed but only labels with the signatures of the panchas were affixed to the six sample packets as well as muddemal property. The evidence of P.W. 13 shows that the paper seals were pasted on the sample packets as well as suitcase, gunny bags and packages containing the muddemal property. There is no reference in his evidence to the sealing of those packets at the time of seizure. It is not in the evidence of the prosecution witness that sealing material was taken at the place of raid along with the raiding party. Towards the close of his examination-in-chief the I.O., however, stated that the samples were sealed with wax seal by Sadar Bazar Police Station. Initially he said that they were sealed but not in his presence. Thereafter he corrected himself and said that the samples were sealed by Sadar Bazar Police Station by wax seal in his presence. Towards the close of his examination-in-chief the I.O., however, stated that the samples were sealed with wax seal by Sadar Bazar Police Station. Initially he said that they were sealed but not in his presence. Thereafter he corrected himself and said that the samples were sealed by Sadar Bazar Police Station by wax seal in his presence. The seizure had taken place in the afternoon on 18th March 1997 but it appears from the evidence of P.W. 8 Patane that the muddemal articles were handed over to him along with the complaint at 9-10 p.m. at the police station and thereafter the muddemal articles were given to the property clerk. As per the evidence of Muddemal clerk Alli Hasan P.W. 10 the sample packets were given to him by P.W. 8 Patane. Though this muddemal clerk states in his evidence that the sample packets were sealed with lakh, he admits in his cross-examination that no entry is made in the muddemal register that the sample packets were sealed with wax seal. The seizure panchanama (Exhibit 27) makes no mention about the sealing of the sample packets but only about the labelling of the sample packets and the muddemal articles with the signatures of the panchas. Admittedly, as per the deposition of the Investigating Officer P.W. 13 in his examination-in-chief itself there was no separate panchanama recorded about the sealing of the sample packets. His own evidence in the examination-in-chief itself is shaky inasmuch as initially he deposes that the sample packets were not sealed with wax seal in his presence at the Sadar Bazar Police Station and immediately thereafter he corrects himself and says that they were sealed in his presence. The said witness admittedly is not attached to the said Police Station and, therefore, in the absence of contemporaneous documentary evidence either by way of separate panchanama of seal at the police station or the reference to the receipt of the sealed packets in the muddemal register would leave one in doubt as to whether the sample packets were really sealed or not. Mr. Thakur, learned A.P.P. relies on the report of the C.A. (Exhibit 30) and contends that the sealed packets were received with seals in-tact as per the copy sent labelled Sadar Bazar Police Station. Mr. Thakur, learned A.P.P. relies on the report of the C.A. (Exhibit 30) and contends that the sealed packets were received with seals in-tact as per the copy sent labelled Sadar Bazar Police Station. It is significant to note that forwarding letter dated 29-5-97 (Exhibit 24) does not contain specimen seal nor does it make any mention about the specimen seal having been sent. The C.A. report (Exhibit 30) is filled in printed form and the words "seals intact as per copy sent" are in printed form and, therefore, much significance cannot be attached to it in view of the absence of the contemporaneous documentary evidence in the form of panchanama, reference in the muddemal register and thirdly reference to the specimen seal in the forwarding letter (Exhibit 24) which is dated 29-5-97. 12. Mr. Solkar in this respect has relied on certain decisions to which reference may be made here. He cited the decision of the Supreme Court in the case of (Vatsala v. State of Kerala)3, reported in 1994 Cri.L.J. 1. In that case there was no evidence to show that article was sealed and kept in proper custody in police station and, therefore, the Court held that the sending of the very article seized to the Chemical Analyser was itself doubtful and, therefore, the conviction could not be sustained. That was the case where the samples were sent to the office of the C.A. after a period of more than three months and there was also no evidence to show with whom the seized articles were lying nor there was evidence to show whether it was sealed and kept there. As in the instant case, before the Supreme Court also the Counsel for the State had argued that the provisions of section 55 of the Act are not mandatory but only directory. Still the Supreme Court held, without going into the said question whether the provision was mandatory or directory, that it was sufficient that the article seized did not appear to have been kept in proper custody and proper form so that the Court could be sure that what was seized only was sent to the Chemical Analyser. Still the Supreme Court held, without going into the said question whether the provision was mandatory or directory, that it was sufficient that the article seized did not appear to have been kept in proper custody and proper form so that the Court could be sure that what was seized only was sent to the Chemical Analyser. In the instant case, as pointed out earlier, the oral testimony is itself in doubt and in the absence of supporting contemporaneous documentary evidence the same cannot be relied on particularly in view of the fact that the samples were sent to the C.A. after a period of more than two months. The samples were seized on 18th March 1997 but they were received in the office of the C.A. on 30th May 1997 under the forwarding letter dated 27th May 1997. 13. The other judgments on which Mr. Solkar placed reliance is of the Division Bench of this Court in the case of (Mohd. Hussain B. Ramzan v. State of Maharashtra)4, reported in 1994 Cri.L.J. 1020. In that case the samples were seized on 31st July 1990 and the muddemal was sent to the Head Office on the same date and thereafter the samples were sent through the Constable to the office of C.A. on 3rd August, 1990 with a forwarding letter and it was found that from 31st July, 1990 to 3rd August, 1990 the samples had remained with P.I. Ghuge without being noted down anywhere in the office of M.I.D.C. Unit. The specimen seal on the forwarding letter which was produced before the Court was not readable and, therefore, the Court could not ensure how the said specimen seal could have been compared with the seal on sample packets by the office of the C.A. though the report of the C.A. had mechanically stated, as in all cases, that the seals on the samples were found in-tact as per the copy sent. In this case the forwarding letter does not make mention about having sent copy of the seal alleged to have been affixed on the sample to the office of the C.A. and, therefore, the printed statement on the report of the C.A. cannot ensure that the copy of the specimen seal was sent to that office with which seal on the sample could have been compared. 14. The next judgment relied on by Mr. 14. The next judgment relied on by Mr. Solkar is the judgment of the Division Bench of this Court in the case of (Mainuddin Kasim Mulla v. State of Maharashtra)5, reported in 1991(3) Bom.C.R. 626 . That was a case where the sample packets and the covers were not returned to the Court from the office of the C.A. From the list of the muddemal articles which was before the Court at Exhibit 4, it was shown that only two packets as muddemal articles were sent to the Court. The sample packets or the covers in which the samples were collected were never returned to the Court. The Division Bench ultimately had to set aside the conviction recorded against the accused for this lacuna on the part of the prosecution. 15. In this case the samples were, as per the evidence of P.W. 13 Investigating Officer, of 1 Kg. each and, therefore, there must have been remnants of the sample. There is nothing on record which is brought to my notice by the learned A.P.P. that either the remnants of the samples or the covers in which the samples were collected were returned to the Court to facilitate the identification of the sample packages by the prosecution witnesses and particularly the panch witness. The perusal of the evidence of pancha witness and other police officials who were the members of the raiding party including the Executive Magistrate does not show that the sample packets or the labels bearing signatures of the panchas were shown to any of the witnesses to identify that the said samples were taken at the time of seizure. As observed by the Supreme Court in the case of Vatsala v. State of Kerala (supra), whether section 55 of the N.D.P.S. Act is mandatory or directory, if the article seized was not sealed or kept in proper custody, the Court cannot be sure that what was seized was sent to the Chemical Analyser and, therefore, the accused was entitled to be acquitted notwithstanding the fact that the trafficking in narcotic drugs is a menace to the society. In the absence of satisfactory proof the accused cannot be convicted in this case. 16. Mr. In the absence of satisfactory proof the accused cannot be convicted in this case. 16. Mr. Thakur relied on the decision of the Division Bench of this Court in the case of (Smt. Meena Gopalkrishna Mudiliyar v. State of Maharashtra)6, reported in 1993(3) Bom.C.R. 584 : 1993 Cri.L.J. 3634 where the reliance was placed on the report of the C.A. for the purpose of ensuring that the sample packets sent to the office of the C.A. were sealed. That was a case where the panchanama of seizure itself mentioned that the sample packets were sealed at the time of seizure as observed in para 2 of the said judgment while narrating the facts of the case. Mr. Thakur also relied on the decision of the Division Bench of this Court in the case of (Joseph Fernandes v. State of Goa)7, reported in 1996 Cri.L.J. 822 wherein it is observed in para 9 of the judgment that section 55 is not mandatory and if there is sufficient compliance with the procedure for the purpose of seizure, then it is sufficient. According to Mr. Thakur section 55 does not mandate that the seized property must be immediately sealed and deposited with the officer in charge of the police station. In my view the lacunas of the prosecuting agency, which I have pointed out earlier, leave room for considerable doubt as regards the samples sent to the office of C.A. It is doubtful whether the sample packets were sealed and were sent to the office of C.A. in sealed condition and, therefore, it is doubtful whether the C.A. report pertains to the sample packets which were drawn at the time of seizure of the contraband from the possession of the appellant. Even the signatures of the panchas on the labels and the covers of the sample packets were not produced for identification by any of the prosecution witnesses at the time of trial. As regards the procedure required to be followed, for taking sample and sealing of the sample Mr. Solkar also relied on the paragraphs 7 and 8 of the Criminal Manual and para 167(2) of the Police Manual, which is prescribed in order to ensure that there is no tampering with the sample packets. The evidence, as noted earlier, is far from satisfactory in that regard. 17. Mr. Solkar also relied on the paragraphs 7 and 8 of the Criminal Manual and para 167(2) of the Police Manual, which is prescribed in order to ensure that there is no tampering with the sample packets. The evidence, as noted earlier, is far from satisfactory in that regard. 17. Mr. Solkar has also brought to my notice the panchanama (Exhibit- 31) with regard to the search of the house of the original accused No. 2 who was acquitted. It is true that no contraband was found in the house of the accused No. 2. That search panchanama is dated 18th March, 1997 and was recorded from 5 p.m. to 6 p.m. on that very day when the seizure was allegedly made from the possession of the appellant in respect of which the panchanama (Exhibit- 27) was drawn between 1-45 p.m. and 4-45 p.m. This would mean that the raiding party has proceeded to the house of the accused No. 2 after making the seizure from the appellant and drawing the panchanama at 4-45 p.m. on that day. This appears to have been done as per the evidence of (P.W. 13) the Investigating Officer pursuant to the statement made by accused No. 1 that the contraband was to be sent to accused No. 2. It is significant to read the contents of Exhibit- 31 which is the panchanama with regard to the search of the house of the accused No. 2 in which it is stated that the search of the house of accused No. 2 was made pursuant to the information received at 10 a.m. on that very day. The entire tenor of the panchanama shows that search was made not pursuant to the statement made by the appellant when he was interrogated by the police as sought to be made out by P.W. 13 but pursuant to an independant information received at 10 a.m. on that day i.e. much before P.W. 13 received the information at 1 p.m. on that day about the carrying of contraband by the appellant. The contents of the said panchanama (Exhibit- 31) further creates doubt about the whole prosecution case against the appellant. 18. Mr. Solkar contended that in view of the several lacunas pointed out in the prosecution case the seizure allegedly made from the appellant is itself thrown in the realm of doubt. The contents of the said panchanama (Exhibit- 31) further creates doubt about the whole prosecution case against the appellant. 18. Mr. Solkar contended that in view of the several lacunas pointed out in the prosecution case the seizure allegedly made from the appellant is itself thrown in the realm of doubt. He contends that the contents of panchanama (Exhibit- 31) further creates doubts in respect of the prosecution case vis-a-vis the appellant when there is no proper evidence to show that the sample packets were sealed and there is absolutely no satisfactory explanation given by (P.W. 13) as to why the sample packets were sent to the office of C.A. after a period of about 2 and 1/2 months. The explanation offered by the Investigating Officer that he could not send the sample to the C.A. upto 27-5-97 as inventory of the articles was necessary before forwarding the samples to the C.A. is, in my view, no explanation at all. Though the contraband seized was in the large quantity, yet the items were hardly few which consisted of two gunny bags one baggage and one suitcase. Surely it should not take more than two months to make inventory of few items of muddemal out of which six sample packets were taken. The aforesaid facts leave prosecution case in doubt and it cannot be gainsaid the benefit of this doubt should go to the accused as the prosecution has failed to prove its case beyond reasonable doubt. 19. In the result the appeal is allowed. The conviction and sentence recorded against the appellant by the Sessions Judge, Solapur in Sessions Case No. 125 of 1997 on 31st July 1997 is hereby quashed and set aside. The appellant is acquitted. The bail bond of the appellant shall stand cancelled and the amount of fine, if paid, shall be refunded to him. Appeal allowed. -----