JUDGMENT 1. - This appeal under Section 374 of the Code of Criminal Procedure, 1973 (the Cr.P.C.) is directed against the judgment and order dated 16.1.1997, made by Additional Sessions Judge, Beawar, Ajmer in Sessions Case No. 9/96, by which he held the appellant guilty of the offence under Section 8 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Narcotic Drugs And Psychotropic Substances Act), convicted him thereunder and sentenced him to rigorous imprisonment for ten years and fine of Rs. one lakh or in default to undergo further imprisonment for 21/2 years. 2. The facts, relevant to and sufficient for the disposal of the present appeal, may be shortly stated as under : 3. On January 24, 1996 at about 6.15 p.m. PW 4 Setha Ram, the Station House Officer (SHO), Police Station Sadar Beawar allegedly received a secret information to the effect that Nand Kishore appellant, who is the resident of that very place and runs a tea stall or hotel there, was carrying on unlawful business activities of trading in Charas, was likely to carry Charas towards Masooda and if he was not timely apprehended he would dispose of the same and would also disappear. The SHO reduced such information in the General Diary (Ex. P/7) and left for Masooda Beawar Road alongwith his staff, including PW 5 Inder Singh and PW 6 Prahlad Rai, Constable and Head Constable respectively. On his way to the reported place he took with him from Beawar-Udaipur Road-crossing PW 2 Tauqir and PW 3 Sharwan Kumar, to be associated in the proceedings as independent witnesses. He reached at 6.40 p.m. a place on the Beawar-Masooda Road, about 100 paces ahead of the toll tax barrier and hid himself, his staff and the witnesses as also his jeep behind the bushes on the road side. At about 7.00 p.m. he noticed the appellant coming on a Moped from Beawar side. Setha Ram, SHO, signalled him, with his torch, to stop. The appellant stopped there and was questioned by the SHO. At about 7.00 p.m. he noticed the appellant coming on a Moped from Beawar side. Setha Ram, SHO, signalled him, with his torch, to stop. The appellant stopped there and was questioned by the SHO. After satisfying himself of the name, parentage and address of the appellant, Setha Ram SHO apprised him of the nature of the secret information in his possession and also told him that he (the SHO) had considered it proper that he (the appellant) be searched in the presence of a Gazetted Officer, to which suggestion the appellant, allegedly, agreed in writing. The SHO then sent PW 5 Inder Singh Constable to bring some Gazetted Officer from the town. Inder Singh then went to the Tehsil, Beawar and returned with PW 1 Sewa Ram, Tehsildar, at 7.30 p.m. The SHO then commenced the search and seizure proceedings. On such search the appellant was found holding a polythene bag in his right hand which was put on the handle of his Moped-a Majestic. On opening the plastic container, solid substance in cylindrical form was noticed. The substance was suspected to be that of Charas. The appellant was having no licence to possess the same. The substance weighed 200 grams. Two specimen samples weighing 30 grams each, were prepared and duly sealed. The remaining substance was separately seized and sealed. The appellant was arrested. The appellant and the substance and the Moped, seized from his possession, were taken to the police station. The sealed packets were handed over to the Malkhana Incharge and were later on sent to the Chemical Analyst at the State Forensic Science Laboratory for Rajasthan at Jaipur through PW 7 Bajrang Singh. The Chemical Examiner, vide his report Ex. P12, confirmed the sample substance as that of Charas. 4. PW 8 Dinesh Bohra, SHO, Police Station City, Beawar, completed the investigation in the case and submitted a report under Section 173(2), Cr.P.C. in the Court. On trial on charge under Sections 8/18, Narcotic Drugs And Psychotropic Substances Act, the learned trial Judge convicted and sentenced the appellant in the manner stated above. Hence this appeal. 5. Mr. V.R. Bajwa, the learned Counsel for the appellant vehemently urged that the learned trial Judge appreciated neither the issues of fact nor of law, which were relevant to, and material for, the correct decision of the instant case, in right perspective. Hence this appeal. 5. Mr. V.R. Bajwa, the learned Counsel for the appellant vehemently urged that the learned trial Judge appreciated neither the issues of fact nor of law, which were relevant to, and material for, the correct decision of the instant case, in right perspective. It was submitted by the learned Counsel that the very theory advanced by the prosecution in this case was inherently improbable and did not inspire confidence. Similarly the compliance of certain directory and mandatory provisions of law, governing the search and seizure proceedings in such cases, were not complied with causing material and substantial prejudice to the appellant. In this behalf the learned Counsel submitted that neither the provisions contained in Section 42(2) nor in Section 50 of the Narcotic Drugs And Psychotropic Substances Act were complied with. Similarly the Chemical Examiner failed to mention the tests and/or examinations and other relevant factual Batas allegedly carried on and collected by him in finally opining that the substance sent to him was 'Charas' and his opinion as an expert witness was ineffective. 6. Mr. Bajwa thus prayed for acquittal of the appellant. In support of his arguments Mr. Bajwa relied upon the decisions of the Supreme Court in the cases of State of Punjab v. Balbir Singh, 1994 Cr.L.R. (SC) 241=I (1996) CCR 146 (SC) ; State of Himachal Pradesh v. Prithi Chand, 1996 Cr.L.J.1354=I (1996) CCR 89 (SC) ; Manohar Lal v. State of Rajasthan, 1996 Cri. L.J. 1367=IV (1996) CCR 9 (SC) ; Sharad Birdhi Chand Sarda v. State of Maharashtra, AIR 1984 SC 1622 ; of Delhi High Court in Manak Chand Jain v. State, 1994 (3) Recent Criminal Reporter 449 of Punjab & Haryana High Court in Ram Kishan v. State of Haryana, 1986 (1) Recent Cr. 169 ; of Rajasthan High Court in 1989 RCC Oct. 417; Gopal v. State, 1998 RCC Apr. 403 ; Smt. Chandi v. State of Rajasthan, 1996 Cri. L.J. 3186 ; Sardar Singh v. State of Rajasthan, 1996 Cr. L.R. (Raj.) 258 ; Rawat Ram v. State ; and Magan Lal & Ors. v. State of Rajasthan, SB. Cr. Misc. Petition No. 606/95 , of Gujarat High Court in Mohd. Hanif Sheikh Ibrahim v. State of Gujarat, 1995 (1) Crimes 274 and of Bombay High Court Rubyana v. State of Maharashtra, Cri. L.J. 148. 7. L.R. (Raj.) 258 ; Rawat Ram v. State ; and Magan Lal & Ors. v. State of Rajasthan, SB. Cr. Misc. Petition No. 606/95 , of Gujarat High Court in Mohd. Hanif Sheikh Ibrahim v. State of Gujarat, 1995 (1) Crimes 274 and of Bombay High Court Rubyana v. State of Maharashtra, Cri. L.J. 148. 7. The learned Public Prosecutor supported the judgment under appeal and submitted that taking into account the totality of the circumstances of this case, the theory advanced by the prosecution against the appellant was quite probable and was proved at the trial by cogent and trustworthy evidence. He further submitted that strict compliance of certain technical and formal provisions of the Narcotic Drugs And Psychotropic Substances Act should not be overstressed in the administration of the said Act and substantial compliance of such provisions should be considered sufficient in upholding the conviction of the appellant. 8. The cases relied upon by Mr. Bajwa lay down certain principles relating to the search and seizure proceeding under the Narcotic Drugs And Psychotropic Substances Act and emphasise that the provisions of the Narcotic Drugs And Psychotropic Substances Act being quite stringent for an accused the compliance of the statutorily mandatory, as also directory provisions thereof should be stressed upon. In case there arises reasonable doubt in the truthfulness of the prosecution theory or where such theory admits of the existence of the probability and reasonableness in the defence theory the benefit thereof should be given to the accused. Each case should be examined on its individual facts and be decided accordingly in the light of the principles of law generally applicable to the appreciation of evidence in such cases. That being the position of the principles of law laid down in the cases relied upon by Mr. Bajwa, I do not think that it is necessary for me to discuss each and every case in detail. 9. Coming now to the merits of the prosecution theory in the instant case it must be observed at the very outset that it is not a case wherein an offender against the Narcotic Drugs And Psychotropic Substances Act was rabbed by the police officers while on patrolling duty in or outside of an inhabitated locality. 9. Coming now to the merits of the prosecution theory in the instant case it must be observed at the very outset that it is not a case wherein an offender against the Narcotic Drugs And Psychotropic Substances Act was rabbed by the police officers while on patrolling duty in or outside of an inhabitated locality. It is a case wherein the offender is stated to be not only residing in the very town wherein the police station is located but also working for gain there and is, admittedly, engaged in earning his livelihood by running his tea-stall or hotel, by whatever name it is called. Again, it is a case wherein the appellant specifically attributes motive to the police officers and also leads evidence in support of his plea. In view of such facts, attending on the commission of the alleged offence in this case and having a bearing upon the guilt or innocence of the appellant, the evidence brought on the record of the case by both sides, requires some deeper scrutiny of the issues of fact as well as of law. 10. The prosecution had examined ten witnesses in all to prove the guilt of the appellant. Undoubtedly quality and not quantity of the evidence has to dictate the judicial decision in a given case and the testimony of a solitary witness may also make a good and valid foundation for the conviction of an accused. Where, however, the theory advanced admits of or necessarily requires presence of more than one witness at the time of the performance of a duty or doing of an act and such requirement is stated to have been fulfilled then all such evidence is required to be examined. But that does not mean that the statutorily recognised principle contained in Section 134 of the Evidence Act looses its significance or relevance even in such cases. The worth and value of the testimony of each and every witness shall have to be examined and then final decision shall have to be taken in the totality of all the facts and circumstances of the case. 11. Anyway, PW 1 Sewa Ram is a Tehsildar, whose presence was required by the SHO to the spot for satisfying the requirement of law laid down in Section 50, Narcotic Drugs And Psychotropic Substances Act. 11. Anyway, PW 1 Sewa Ram is a Tehsildar, whose presence was required by the SHO to the spot for satisfying the requirement of law laid down in Section 50, Narcotic Drugs And Psychotropic Substances Act. He has supported the prosecution case and we will see later on as to whether he can or cannot be relied upon him in that behalf. 12. PW 1 Mohd. Tauquir and PW 3 Sharwan Kumar are the two independent witnesses who are stated to have been associated by SHO Setha Ram in the search and seizure proceedings in this case. Both have turned hostile, though they admitted their signatures on the relevant memos They stated that they were called at the police station to sign certain papers which they did. 13. It was urged by the learned Public Prosecutor that since both these witnesses have admitted their signatures on the relevant memos it should be held that the search and seizure proceedings were carried on in their presence but for the reasons best known to them they did not support the prosecution version and were won over by the appellant. Such an inference may no doubt be drawn in certain cases but not, to my mind, in the instant case. 14. Both the above named witnesses reside behind the police station. PW 2 Tauqir is 1st year student of the Three Years Degree Course and PW 3 Sharwan Kumar earned his livelihood by doing some skilled manual work. They are not shown to be related to, or in any way friendly with the appellant who runs his restaurant in other part of the locality, as is gathered from the evidence available on record. On account of their residing in the vicinity of the police station they may be friendly with the police officials at police station Sadar and not with the appellant. Therefore, the fact that both these independent witnesses declined to support the prosecution case cannot be altogether lost sight of particularly when such a position is also found with regard to the testimony of other independent witnesses who were examined to support purely formal facts. 15. In the above context it would be worthwhile to refer to the testimony of two other witnesses from the public. 15. In the above context it would be worthwhile to refer to the testimony of two other witnesses from the public. PW 9 Balwant Singh and PW 10 Kedar Nath Sharma are the witnesses to the preparation of the site map of the place of search and seizure proceedings in this case by the Investigating Officer. The site map Ex. P/11 was prepared on 25.1.1996 by PW 8 Dinesh Bohra, the then SHO, Police Station, City Beawar. Both the above named witnesses, though admitted their signatures on the site map, yet, at the same time, stated that they were never taken to the place whereof the site map was prepared. PW 9 Balwant stated that when he had gone to' the police station to take 'silai' the police man asked him to sign certain blank papers and assured him that he would not be put to any difficulty and on such assurance he had signed the papers. Similarly, PW 10 Kedar Nath Sharma stated that he runs his shop just behind the police station and that he was called to the police station and asked to sign some papers and he signed the same. 16. It may be noted that not only the two material witnesses, namely PW 2 Mohd. Tauqir and PW 3 Sharwan Kumar, who were examined as witnesses to the search and seizure proceedings but also the formal witnesses PW 9 Balwant Singh and PW 10 Kedar Nath Sharma, did not like to endorse the alleged acts of commission of the senior police officers. Why was it that no independent witness was prepared to support the alleged discharge of official duties by two senior and responsible police officers, relating to their act even of purely formal character ? Why was it that almost all the four witnesses were procured from the locality in the vicinity of Police Station Sadar, Beawar and not from the place or places, like the toll tax Barrier, road- crossing, etc. which were close to the place of the alleged search and seizure proceedings ? This position of relevant facts and of the evidence produced in support of such facts has a bearing upon the very character of the prosecution theory as being truthful or otherwise. which were close to the place of the alleged search and seizure proceedings ? This position of relevant facts and of the evidence produced in support of such facts has a bearing upon the very character of the prosecution theory as being truthful or otherwise. This aspect of prosecution case requires this Court to appreciate the testimony of other witnesses more carefully and critically, particularly in the wake of the punishment mandatorily imposable on the appellant, if the prosecution case is accepted against him. 17. PW 4 Setha Ram is the star witness in this case, as the two other witnesses, namely PW 5 Inder Singh and PW 6 Prahlad Rai were his sub-ordinates and they have spoken in the same language in which the SHO has done. Setha Ram and the other two police witnesses have deposed the facts which have been mentioned above in sufficient detail and, therefore, I avoid repetition thereof once again. 18. To take the testimony of Setha Ram SHO it is noted that though he receives a secret information against the nefarious activities, allegedly being carried on by the appellant in the town yet, curiously enough, before proceeding to the place of search and seizure proceedings he does not appear either to have apprised his senior officers of the secret information which had come to him in the present case nor does he appear to have even taken any steps to take a search of his residential or business premises. According to him the information received by him was to the effect that the appellant was carrying on the unlawful business of trading in 'Charas'. The appellant was running a tea-stall or a hotel and the commodity or substances, wherein he was reported to be carrying on his activities, had or could have had a relevance to his lawful business. Therefore, on the receipt of such information a prudent and vigilant police officer, in the position of the In-charge of a police station, would certainly think of curbing such unlawful activities by a person within the territorial jurisdiction of his police station and would try to bring the culprit to book. Therefore, on the receipt of such information a prudent and vigilant police officer, in the position of the In-charge of a police station, would certainly think of curbing such unlawful activities by a person within the territorial jurisdiction of his police station and would try to bring the culprit to book. The facts, that, being in possession of such sort of information but neither informed his superior officers in respect thereto as required by Section 42(2) of the Narcotic Drugs And Psychotropic Substances Act nor did he himself try to take suitable steps in the direction of making search of the residential and business premises of such offender, may very well reflect upon the fairness, impartiality in, and dedication to the discharge of his official duties by Sewa Ram, SHO as a police officer. In any case this fact diminishes the value of the testimony of Setha Ram SHO in this case. 19. Proceeding further, we find that Setha Ram SHO states that the place, whereat he hid himself, his staff, the independent witnesses and his vehicle behind certain bushes was on a highway, ahead of a toll-tax post, and he had stopped the appellant with his Moped there for sufficiently long time. It is really strange, that no person from the toll tax post or from amongst those who were passing or had passed through that highway reached that place to witness the search and seizure proceedings. Then he stated that he had weighed the substance, prepared the samples, sealed the packets, wrote down or dictated the relevant memos on the spot in the light of either his torch or the head-lights of the jeep. If that were so, the site map of the place could have easily been prepared by him at that very time. It was a straight road and the preparation of the site-map required no additional skill or special knowledge to prepare it. The doing of such acts by certain police officers at that early hours of night on L highway just close to the inhabitated locality would have in all probability attracted the attention of persons at the toll-tax barrier or the road crossing. But such is not the case of the prosecution. 20. The doing of such acts by certain police officers at that early hours of night on L highway just close to the inhabitated locality would have in all probability attracted the attention of persons at the toll-tax barrier or the road crossing. But such is not the case of the prosecution. 20. Then again, it was really strange that after having stopped the appellant in that way Setha Ram SHO had asked Inder Singh Constable to bring the Tehsildar Sahib from the town. Inder Singh Constable has categorically stated that he was directed to bring the Tehsildar Sahib. Why not any other Gazetted Officer ? And how was it that PW 1 Sewa Ram Sharma, Tehsildar was readily available to Inder Singh Constable at his official /residential premises so as to reach the place of arrest of the appellant within about 15 minutes Had he pre-information of his requirement by Setha Ram SHO ? 21. All the above facts, in my opinion, rob the prosecution theory, of its truthful character. The real evidence adduced and relied upon by the prosecution to prove the charge against the appellant is thus found to be of highly doubtful character. The facts and circumstances attending upon the acts done by the public servants in the discharge of their official or non-official duties heavily weigh against their being truthful witnesses. It is, therefore, held that on facts the prosecution had failed to prove the charge against the appellant by truthful and reliable evidence. The prosecution case deserves to be rejected and is hereby rejected accordingly on the merits of the case. 22. Though the present case fails on its own facts and thus necessitates no discussion on the issues of law involved therein and agitated by Mr. Bajwa, yet to complete the discussion I would like to observe that the mandatory provisions of Section 50 were not complied with in this case in the sense they are required to be complied with. 23. Ex. P2 is the notice stated to have been given by Setha Ram to the appellant. This notice, when translated in English, is to the effect that Setha Ram SHO had thought it appropriate to get the search of the person of the appellant made in the presence of some Gazetted Officer and whether the appellant was prepared for that or not. This notice, when translated in English, is to the effect that Setha Ram SHO had thought it appropriate to get the search of the person of the appellant made in the presence of some Gazetted Officer and whether the appellant was prepared for that or not. Below such writing of the SHO there is the endorsement wherein the appellant has been shown to have agreed to the suggestion of decision of the SHO. 24. Section 50 of the Narcotic Drugs And Psychotropic Substances Act is a mandatory provision and gives a valuable right to an accused of an offence under that Act to get himself searched in the presence of either a Gazetted Officer or a Magistrate. The option has to be exercised by the accused in either way. It is altogether a different matter as to who of the two officers, namely a Magistrate or a Gazetted Officer is immediately available to the officers of the police or Narcotics Departments and an accused is searched in the presence of such an officer. But in the instant case a Gazetted Officer was not present at the time and place when and where the search was to be made by SHO Setha Ram. It was, therefore, incumbent upon the SHO to have given the necessary option to the appellant which he failed to do. The notice, allegedly given to the appellant by the SHO makes no reference to the Magistrate. In view of the facts placed before the Court, the police party had stopped the appellant, with his handbag, on a highway just outside but close to the Beawar town. The policy party was having the facility of a jeep also. In case the appellant would have been given the two options and he opted for a search of his person in the presence of a Magistrate, he could have been immediately taken in the jeep to a Magistrate. Under such circumstances, the prosecution case that a notice under Section 50 of the Narcotic Drugs And Psychotropic Substances Act was given to the appellant is rendered highly doubtful. The mandatory provisions of Section 50 of the Act were, therefore, not complied with in this case by the SHO, when he could have complied with such provisions. Under such circumstances, the prosecution case that a notice under Section 50 of the Narcotic Drugs And Psychotropic Substances Act was given to the appellant is rendered highly doubtful. The mandatory provisions of Section 50 of the Act were, therefore, not complied with in this case by the SHO, when he could have complied with such provisions. Coupled with the factual position as discussed above the non- compliance of the mandatory provisions of Section 50 has caused, in my opinion, substantial prejudice to the appellant in his defence and materially vitiated his trial, Balbir Singh v. State , & State of H.P. v. Prithi Chand (supra). This legal position further adversely affects the prosecution case.I do not think it necessary to examine the probative value of the report of the Chemical Examiner in this case, as the case fails on factual and legal aspects, as discussed above. Court's opinion on that point is reserved in this case.In the result, the impugned judgment and order are hereby set aside and the appellant acquitted of the offence under Sections 8/20, Narcotic Drugs And Psychotropic Substances Act in this case. He is in jail. He shall be released forthwith, if not wanted in any other case. The amount of fine, if has already been realised from him, shall be returned to him.Appeal is allowed.Appeal allowed. *******