JUDGMENT - D.G. DESHPANDE, J.:---Heard the learned Advocate, for the appellant and the learned A.P.P. for the State. 2. The appellant is the original accused who was convicted by the Special Judge for N.D.P.S. Cases, Greater Bombay and was sentenced to suffer R.I. for 10 years and a fine of Rs. 1,00,000/- i.d. S.I. for 6 months for the offence under section 8(c) read with section 21 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as N.D.P.S. Act). The accused is in custody since 22-2-1995 i.e. since the date of incident. 3. Counsel for the accused took us through the entire record and the evidence of the prosecution and strenuously urged that there are number of defects and lacunas in the prosecution case for which the accused is entitled for acquittal. The trial Court has committed grave error in considering the evidence. He firstly contended that the prosecution examined only four witnesses out of which P.W. 2 was the only independent panch witness. P.Ws. 1 and 4 were the members of the raiding party and P.W. 3 was the career who took the samples, to Chemical Analyser. Therefore, according to him, P.W. 2, was only examined as independent witness and accordingly a close scrutiny of evidence shows that either this witness is false or that case of the prosecution is false or suspicious, so far as the important aspect of P.W. 2 being present at the spot is concerned. 4. Counsel for the appellant pointed out that P.W. 2 in his evidence has given his address as Ganesh Chawl, Room No. 2, Prem Nagar, Jogeshwari (East), Mumbai - 400 060, whereas in the panchanama, Exhibit-9 the address of this witness was recorded as Bagwe Chawl, Janta Colony, Shyam Nagar, Jogeshwari (East). The Counsel for the appellant urged that not only the address given to the Court and the address given in the panchanama are different but this witness P.W. 2 has categorically admitted in his cross-examination that he never resided at Bagwe Chawl, Janta Colony, Shyam Nagar in his life time. He admitted that he never gave this address to the police when the panchanama was recorded and that he had given the address of Ganesh Chawl, Room No. 2, Prem Nagar, Jogeshwari (East). 5. He admitted that he never gave this address to the police when the panchanama was recorded and that he had given the address of Ganesh Chawl, Room No. 2, Prem Nagar, Jogeshwari (East). 5. According to the Counsel for accused, the address of P.W. 2 as recorded in the pre-trap panchanama, in the post-trap panchanama and the statement of P.W. 2 recorded by the police after the raid, was recorded as Bagwe Chawl, Janta Colony and the witness has specifically and repeatedly ascertained that he never resided at that address. Then two inferences are possible viz. either this panch witness was never present and the police officer knew him and recorded panchanama by putting his fictitious address and secondly the accused was never produced before the Court but some other persons giving the name of Prashant Satam was produced before the Court by drawing the panchanama. Our attention was also drawn to the panchanama wherein the Investigating Officer had asked regarding address of P.W. 2 and the Investigating Officer stated that P.W. 2 had stated the address of Bagwe Chawl, Janta Colony, Shyam Nagar, The Investigating Officer has further admitted that he did not have with him any of the address of P.W. 2 much less than the address of Ganesh Chawl, Room No. 2, Prem Nagar nor the Investigating Officer had contact number of P.W. 2. The Counsel for the appellant contended that it was very doubtful as to how the witness summons was served on P.W. 2. We find force in the submissions made by the Counsel for the appellant in this regard. When P.W. 2 specifically states that he never resided at the address of Bagwe Chawl, Janata Colony and when he gives different address and when P.W. 4 admits that he did not have any address of P.W. 2 then how he informed P.W. 2 that his presence was required in the Court and how the summons was served upon him. Further, it was urged by Counsel for the appellant that so far as panchanama, Exhibits-8 and 9 are concerned, they are typed and not hand-written panchanamas. So far as Exhibit-9 is concerned, according to P.W. 4 it was prepared on the spot. We have perused the said panchanama and it was typed and not hand written. As regards this material aspect, the prosecution is totally silent. So far as Exhibit-9 is concerned, according to P.W. 4 it was prepared on the spot. We have perused the said panchanama and it was typed and not hand written. As regards this material aspect, the prosecution is totally silent. It is not only silent but the witnesses have given contradictory statements. P.W. 1 stated that Exhibit-9 panchanama was typed by P.W. 4, whereas P.W. 4 stated that Exhibit-9 was typed by some Head Constable. Generally no importance could have been given to this omission because if the panchanama is properly proved and the evidence of the witnesses regarding proof of panchanama is credible then we would not have given much importance to this aspect but considering the evidence of P.W. 2 regarding his address in panchanama and given before the Court, absence of evidence or inability of the prosecution to prove as to who typed the panchanama assumes great importance. Apart from this none of the prosecution, witnesses including P.W. 1 and P.W. 4 anywhere stated as to who dictated the panchanama. Admittedly the panchanama is a document which comes into existence after somebody dictates and somebody writes it. It was apparently for him to write the panchanama or he could have entrusted the job to somebody. Accordingly out of the witnesses who were present at the spot, only two witnesses were examined. Therefore, firstly the prosecution is not able to prove as to who prepared the panchanama and who typed it and the evidence of P.W. 1 or P.W. 4 is either silent or is totally contradictory. 6. The third point which was urged before us was that prosecution has tried to prove compliance of section 22(2) of the N.D.P.S. Act. In that the prosecution produced and proved the extract of the station diary extract, Exhibit-13(c) which is the xerox copy of the register about recording information received by P.W. 4. According to the learned Counsel for the appellant, section - 42 requires that this information should be immediately communicated in writing by P.W. 4 to his superior. However, according to him, there is no such compliance to section 42(2) and consequently the documents Exhibit-13 or 13(b) are concocted. In this regard he drew our attention to Exhibit - 13 which is the copy of information reduced to writing and forwarded to Deputy Commissioner of Police, Assistant Commissioner of Police and other senior officers. However, according to him, there is no such compliance to section 42(2) and consequently the documents Exhibit-13 or 13(b) are concocted. In this regard he drew our attention to Exhibit - 13 which is the copy of information reduced to writing and forwarded to Deputy Commissioner of Police, Assistant Commissioner of Police and other senior officers. He also argued that Exhibit-13 and Exhibit-19 bore the same outward number. Exhibit 19 is a special report dated 23-2-1995 regarding compliance to section - 57 of the N.D.P.S. Act. 7. Counsel for the appellant also drew our attention to the detailed and lengthy cross-examination of the P.W. 4 wherein P.W. 4 has admitted that every document sent out of the unit is entered into by the outward register and the separate outward number is given. If this admission is taken into consideration then it means that if Exhibit 13 dated 22-2-1995 was sent by P.W. 2 to his superior officers on that day itself then outward number could not be 85/95 because outward number 85 is given to Exhibit - 19 which is dated 23-2-1995. 8. Even if we are in disagreement with the Counsel for the appellant regarding non-compliance of section 42(2) because this was a raid in the public place and as per judgment of the Supreme Court in the case of (Sayar Puri v. State of Rajasthan)1, reported in 1998(7) S.C.C. page 441, when the raid is on the public place, procedure under section 42(2) was not required to be followed. However, the fact remains that prosecution has not be able to remove the doubt that is created in respect of this material documents Exhibits 13 and 19. 9. One more point going to the root of the matter was urged by the Counsel for the appellant. According to him and as per the prosecution, 2kg, heroin was seized from the present accused in 1kg. bag each and two samples from the other packet i.e. in all four samples were drawn on the spot. Those four samples according to P.W. Nos. 1 and 4 were given numbers E1, E2, F1 and F2 and out of these four samples one each was retained by the police officer and one each was sent to the Chemical Analyser for analysis. Those four samples according to P.W. Nos. 1 and 4 were given numbers E1, E2, F1 and F2 and out of these four samples one each was retained by the police officer and one each was sent to the Chemical Analyser for analysis. The samples which were sent to the Chemical Analyst for analysis as per the forwarding letter and as per the evidence of P.W. 3 were having numbers E1, F1 and the samples retained with the Police Officer were having numbers F1 and F2. When these samples were sent police had also sent two more samples No. A1 and B1 from the 2kg. heroin seized at the very same time. Therefore, as per the forwarding letter samples E1 and F1 were sent to the Chemical analyser. However, the C.A. report Exhibit-15 dated 24-3-1995 is in respect of Nos. A1, B1, C1 and D1 and not in respect of E1 and F1 which were the samples in respect of the present accused. Counsel for the appellant, therefore, contended that the prosecution has miserably failed to prove that the samples of the so called heroin recovered from the present accused were sent to the Chemical analyser or that the Chemical Analyser's report. Exhibit-19 is in respect of those samples E1 and F1. We find considerable force in this argument also because if as per the evidence of P.W. 3 and P.Ws. 1 and 4 coupled with the forwarding letter, if E1 and F1 were sent for analysis then the C.A. report should have mentioned E1 and F1 as the samples tested and examined by the Chemical Analyser. 10. Ordinarily and independently we would not have given much importance to this aspect particularly because the evidence of P.W. Nos. 1 and 4 regarding taking out samples and giving numbers to them and evidence of P.W. 3 regarding carrying the samples alongwith forwarding letter and the C.A. report, Exhibits-15 and 16 giving percentage of active ingredients of the narcotic drugs are all consistent regarding C.R. number, the date of offence, description of the packets and the name of the accused and other particulars. We got produced before us the Muddemal including the four samples E1, E2, F1 and F2 and from all the circumstances it appears that proper samples regarding these accused were sent to the Chemical Analyser and the Chemical Analyser had also examined the proper samples. We got produced before us the Muddemal including the four samples E1, E2, F1 and F2 and from all the circumstances it appears that proper samples regarding these accused were sent to the Chemical Analyser and the Chemical Analyser had also examined the proper samples. However, considering the over all case of the prosecution and important lacuna in the case, for which no explanation whatsoever is given by the Investigating Officer, P.W. 4, when he tendered this C.A. report, Exhibit-15, in Court the benefit has to be given to the accused. 11. Regarding all the averments made by Counsel for the accused, it was contended by the learned A.P.P. that the fact that panchanama was prepared on the spot and that 2 kg. heroin was recovered from the accused is proved because of the signature of the accused on the panchanama in token of having received the same and according to the learned A.P.P. huge recovery of 2 kg. of heroin was itself a circumstance to hold the accused guilty. According to him all these lapses pointed out by the appellants were either minor or would not weaken the prosecution case. 12. We are unable to accept this submission because as already pointed out, the address as recorded in Exhibits 8, 9 and 10 creates grave suspicion regarding preparation of panchanamas at the time of raid and regarding the raid itself. Considering all these aspects and the submissions made, the judgment of conviction cannot be upheld. 13. The appeal is accordingly allowed. The order of conviction and sentence imposed by the learned Special Judge in N.D.P.S. Case No. 80/95 is set aside and the accused is acquitted. He shall be released forthwith if not required in any other case. The other part of the judgment regarding disposal of the property shall remain the same. Appeal allowed. -----