JUDGMENT - DESHPANDE D.G., J.:---We have heard Mr. D.S. Padwal for the appellant and Ms. Usha Kejriwal, Additional Public Prosecutor for the State of Maharashtra-respondent. 2. The original accused/appellant was convicted by the Special Judge, Greater Bombay by his judgment dated 28th September, 1992 passed in N.D.P.S. Special Case No. 352 of 1991 for the offence under section 21 read with section 8(c) of the N.D.P.S. Act and was sentenced to suffer 10 years R.I. and to pay a fine of Rs. 1,00,000/- in default to suffer R.I. for six months. 3. It is the prosecution case that in the early hours of morning of 30-3-1991 i.e. at 5.30 a.m., two Police Constables attached to the Nirmal Nagar Police Chowky were on patrolling duty when on the road, they found one person, the present accused with a brief case in his hand, walking on the road, in suspicious circumstances. They therefore, tried to stop him but, he tried to run away. These Constables therefore, called two panchas and apprehended the accused and then brought him to the Nirmal Nagar Police Station wherein in presence of the panchas, a search of the brief case was made and it was found to contain 800 gms of charas in the plastic bag. The charas was thereafter, taken to the nearby ration shop; weighed and the total weight was found to be 800 gms out of which, a sample of 10 gms was taken. Both the samples were packed and sealed. Thereafter, an F.I.R. was lodged by P.S.I. Sambhaji Dhawale, P.W. 1 of Nirmal Nagar Police Station and an offence was registered and the charge-sheet was filed after receipt of the report of the Chemical Analyst. 3. The accused pleaded not guilty to the charges and contended that he was being falsely implicated. However, the trial Judge believed the prosecution case and convicted the accused in the manner stated above. Hence, the present appeal filed against the judgment. 4. After hearing the Advocate for the accused and the learned Additional Public Prosecutor for the State, we find that the prosecution case is not free from doubt, on account of inherent deficiencies lacunae and contradictions. Firstly, the lacunae in the prosecution case is that according to the two constables, they saw the accused in suspicious circumstances walking by the road. One of the constable was having a rifle with him. Firstly, the lacunae in the prosecution case is that according to the two constables, they saw the accused in suspicious circumstances walking by the road. One of the constable was having a rifle with him. They tried to stop the accused but, the accused tried to run away. He was chased and was stopped. Thereafter, two panchas were called. If this was so, nothing prevented both the Constables from taking a search of the brief case then and there and make a panchanama. However, no plausible explanation has been offered by these Constables P.W. 2 and 3 as to why they did not search the brief case on the spot and prepare the panchanama. 5. The learned A.P.P. tried to contend that because crowed had gathered and the accused was likely to run away, the two constables brought him to the police station. This explanation according to us is not at all satisfactory because, it is not the case of the prosecution that the accused was armed with any weapon or he had tried to use force or has tried to make a show or use of force to deter the two Police Constables from doing their duty that is taking search of the brief case. The accused was totally unarmed whereas one of the Constable was having a rifle and according to them, the two panchas were also called on the spot. If that was so, it would have been better if the search of the brief case was made then and there and the panchanama was prepared. 6. Secondly, according to the prosecution, both these Constables had brought the accused to the Police Station, produced him before the P.W. 1. Thereafter, the brief case was opened and it was found to contain charas. Then, the charas was taken to a adjoining rationing shop owned by the S.E.M. P.W. 4 who was known to the P.S.I., as S.E.M. working in that area. Admittedly, weight of the contraband article was not made in the Police Station but was not made outside for which the brief-case of the accused was required to be taken from the Police Station to the rationing shop but then no fresh panchanama was made in the rationing shop. Opening of the brief-case in the Police Station is one stage and getting the contraband weighed is the second stage. Opening of the brief-case in the Police Station is one stage and getting the contraband weighed is the second stage. If the two stages of the prosecution were started and completed at two different places, then, it was expected from the prosecution to prepare two separate panchanamas to give authenticity to its version, or to prepare a continuation panchanama. 7. Thirdly, P.S.I. Dhawale in his examination-in-chief does not utter a word about taking the contraband to the rationing shop of the S.E.M. P.W. 4 and getting it weighed in his shop. He is totally silent in his examination-in-chief, in this regard. What he has stated is that after the brief case was opened, and found to have contained charas and it was weighed and found to contain 800 gms, he has not given name of the owner of the shop nor the manner in which he went there or whether he has taken the accused with him at that time. 8. Third defect or lacunae in the prosecution is that the sample of 10 gms was taken as sample from the contraband which was weighed and found to be about 800 gms. Admittedly the shop was a rationing shop and in the absence of any explanation from the prosecution, we are unable to accept that 10 gms. weight could be there at the rationing shop to enable the police to take out the sample. It was rightly therefore, contended by Mr. Padwal learned Counsel for the appellant that non-preparing the panchanama at the time of taking the weight, not showing the presence of the accused and not offering any explanation regarding the availability of a weight of 10 gms. coupled with the circumstances discussed earlier, are the deficiencies in the prosecution case the benefit of which must be given to the accused. 9. Further, from the evidence of the prosecution, it appears that P.W. 4 was examined as an independent witness. This witness is one Abdul Mohamad. He has stated that on 30-3-1991, he was proceeding for the namaz at 5 a.m. He was called by the two Constables to act as a pancha and in his presence, the accused was taken to the Police Station. A search of the brief case was made. This witness is one Abdul Mohamad. He has stated that on 30-3-1991, he was proceeding for the namaz at 5 a.m. He was called by the two Constables to act as a pancha and in his presence, the accused was taken to the Police Station. A search of the brief case was made. However, this panch at the time of the panchanama, has given his occupation as a taxi driver and address as 15/A, Innus Miya Kokani Chawl, Room No. 8, Navpada, Bandra (E.), Mumbai whereas in his deposition, he has given his address as Parsichawl, Navapada, Bandra (E.), Mumbai and occupation as pan bidi shop. It is pertinent to note that the date on which his address was taken is 30-3-1991 and the evidence was recorded within less than six months, i.e. 18-9-1991 but, his address appears to have changed within the six months and when he was confronted regarding the occupation and address, he tried to explain that he was also plying taxi from 9 a.m. to 10 p.m. and was also doing the business of pan bidi, simultaneously. It was rightly argued by Mr. Padwal, learned Counsel for the appellant that this circumstances if taken together along with others, create a doubt about the presence of the panch and at the time of the so-called search. 10. One more important thing that is lacking in the prosecution case is that copy of the panchanama Exhibit 10 was not given to the accused at any time by the Investigating Officer. Though, it has been tried to be contended that the said copy was given, Exhibit 10 does not show anything to that effect. No signature of the accused in token of having received the copy of Exhibit 10 is obtained. 11. The prosecution case further suffers from the absence of evidence regarding the compliance of section 57 of the N.D.P.S. Act which requires that the officer shall within 48 hours of the search and seizure submit a report in writing to his superior. Whether this provision of section 57 is mandatory or directory, is not a question involved but, non-compliance thereof in the present case coupled with non-supply of the copy of the panchanama and the aforesaid defects give weight and strength to the submissions made by Mr. Padwal, learned Counsel for the appellant and hence in this case, the prosecution evidence cannot be accepted in its entirety. Padwal, learned Counsel for the appellant and hence in this case, the prosecution evidence cannot be accepted in its entirety. 12. The learned Additional Public Prosecutor tried to contend that even if it is taken for granted that copy of the panchanama was not supplied to the accused, the omission will not vitiate the trial. There is no question according to us to vitiating the trial on that count. However, the question of prejudice to the accused has to be considered. It was incumbent on the police to offer him a copy of the panchanama. The manner in which the accused was apprehended and thereafter taken to the Police Station and absence of any explanation as to why the search was not taken on the spot, we have doubt about the truth of the prosecution case and the evidence. The trial Court has not considered these submissions even though, the defence lawyer has made a grievance about them before the trial Court. Since in our opinion, case of the prosecution and the evidence on this important aspect of the matter is lacking, the benefit of doubt is required to be given to the accused. Though each of the circumstances individually may not be sufficient to doubt the prosecution case; but cumulatively taken, the circumstances are sufficient to create a doubt about the prosecution case and therefore, as a result, this appeal has to be allowed. Accordingly, the conviction and sentence of the accused under section 21 read with section 8(c) of the N.D.P.S. Act is set aside and the accused be released forthwith if not wanted in some other case. 13. The order of the Sessions Court regarding the disposal of the property remain unchanged. In case the accused has paid the fine, it shall stand refunded to him. Appeal allowed. -----