JUDGMENT 1. - The abovenamed accused-appellant has preferred this appeal against the judgment and order dated 18.12.1999 passed by the learned Sessions Judge, Pratapgarh in Sessions Case No. 116/94, by which he convicted accused-appellant under section 8/18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `the NDPS Act') and sentenced him to undergo ten years' rigorous imprisonment and a fine of Rs. one lac, in default of payment of fine, to further undergo RI for six months. 2. The facts giving rise to this appeal, in short, are as follows : On 5.5.1994, PW 4 Shiv Prasad, Additional S.P., Pratapgarh received information from Mukhbir to the effect that in the evening in the Bus, which was going from Pratapgarh to Ahmedabad via Dhariyawad, accused-appellant would carry with him contraband opium. The said information was reduced in writing by PW 4 Shiv Prasad to make the compliance of Section 42(1) of the NDPS Act and, thereafter, for making further compliance of the said Section, that information was also sent by PW 4 Shiv Prasad to S.P., Chittorgarh through Ex.P/6. Thereafter, PW 4 Shiv Prasad alongwith PW 6 Prasan Kumar, Dy.S.P., PW 8 Raman Lal, SHO and some other police officials including PW 1 Sohanlal, ASI, Govind Singh, ASI, Ram Gopal, Head Constable etc. proceeded in a Government Jeep towards the spot at about 6.30 p.m. and reached near Deogarh Talab on way to Dhariyawad. It is further alleged that at about 7.20 p.m., Roadways Bus bearing No. GJ1 /Z1199 came there from the side of Pratapgarh and it was stopped. The Driver of the said Bus was Romanial and its Conductor was Dheru Bhai and there were many passengers in the Bus and out of the passengers sitting in the Bus, two passengers, namely, PW 7 Mool Singh and PW 2 Bhagwat Singh were given notice Ex.P/2 by PW 4 Shiv Prasad asking them to become motbir witnesses in the present case and, thereafter, PW 4 Shiv Prasad aiongwith his party entered in the Bus and as per the information from mukhbir, accused-appellant was identified, who was sitting on the back seat and on being asked, he told his name as Yusuf and he was having a plastic bag, in which there was a polythene bag containing black substance. There was one more person, namely, accused-Hameed, but accused-Hameed ran away from the scene. There was one more person, namely, accused-Hameed, but accused-Hameed ran away from the scene. The accused-appellant-Yusuf was alighted from the Bus and he was given notice Ex.P / 7 under section 50 of the NDPS Act by PW 4 Shiv Prasad informing him whether he wanted to be searched before a Gazetted Officer or Judicial Magistrate. After receiving the notice, accused-appellant gave his consent and put his signatures on the said notice. Thereafter, PW 4 Shiv Prasad, in presence of PW 7 Moot Singh and PW 2 Bhagwat Singh, made the search of the accused-appellant and on search, a plastic bag was recovered from his possession and on opening, contraband opium was found and on weighing, its weight was found to be 1 kg. 600 grms., out of which, two samples of 30 grms. each were taken and they were sealed and marked as A/1 and A/2 and the remaining opium was also sealed and marked as `A'. The fard of search and seizure of accused-appellant is Ex.D/ 2, which was prepared by PW 4 Shiv Prasad. The specimen seal impression prepared by PW 4 Shiv Prasad is Ex.P/8. The accused-appellant was arrested through Ex.P/1. PW 4 Shiv Prasad sent a written information of the above proceedings to PW 8 Ramanlal SHO, Police Station, Jakham, District Chittorgarh through Ex.P/5, upon which, PW 8 Ramanlal registered the regular police FIR Ex.P/ 11. It may be stated here that all papers prepared by PW 4 Shiv Prasad and articles seized by him were also handed over by PW 4 Shiv Prasad to PW 8 Ramanlal. The articles, which were recovered from the accused-appellant, were deposited by PW 3 Raghuveer Singh in the Malkhana and the copy of Malkhana Register is Ex.P /4. Out of two samples, one sample A/1 was sent to FSL, Jaipur for chemical analysis through PW 5 Anandilal, after obtaining letter Ex.P/9 from SP, Chittorgarh to FSL, Jaipur. The receipt of depositing the sample in FSL, Jaipur is Ex.P /10 and the report of the FSL is Ex.P/1, in which it has been mentioned that the sample contained in the packet gave positive tests for the chief constituents of the coagulated juice of opium poppy having 2.47% (Two point four seven per cent) Morphine. The receipt of depositing the sample in FSL, Jaipur is Ex.P /10 and the report of the FSL is Ex.P/1, in which it has been mentioned that the sample contained in the packet gave positive tests for the chief constituents of the coagulated juice of opium poppy having 2.47% (Two point four seven per cent) Morphine. After usual investigation, police submitted challan agaiinst the present accused-appellant-Yusuf and another accused-Hameed, in the Court of Magistrate and, thereafter, the case was committed to the Court of Session. The learned Sessions Judge on 17.10.1995 framed charge u/ section 8/18 of the NDPS Act against accused-appellant-Yusuf and charge under section 8/18 r/w Section 29(1) of the NDPS Act was framed against another accused-Hameed. The charges were read over and explained to both accused. They denied charges and claimed trial. In support of its case, the prosecution examined as many as 8 witnesses and got exhibited some documents. Thereafter, the statements of the accused under section 313 Cr.P.C. were recorded and one witness was produced by accused in defence. After recording evidence and conclusion of trial, the learned Sessions Judge, Pratapgarh, through his judgment dated 18.12.1997 acquitted accused-Hameed of the charge under section 8/18 r/w 29(1) of the NDPS Act framed against him, but convicted the present accused-appellant-Yusuf for the offence under section 8/18 of the NDPS Act and sentenced him in the manner stated above holding inter alia : 1. That in the present case, compliance of the provisions of Section 50 of the NDPS Act has been made. 2. That link evidence is sufficient to show that articles remained intact from the date of recovery till they reached FSL. 3. That the prosecution has proved its case beyond reasonable doubt against accused-appellant-Yusuf for the offence under section 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 18.12.1997, the present appeal has been filed by accused-appellant-Yusuf. 3. In this appeal, only the following two points have been raised by the learned counsel for the accused-appellant : 1. That compliance of mandatory provisions of Section 50 of the NDPS Act has not been made in the present case and the grounds on which this aspect has been attacked by the learned counsel for the accused-appellant shall be discussed later on. Hence, it has been argued that on this ground alone, accused-appellant should be acquitted of the charge framed against him. 2. Hence, it has been argued that on this ground alone, accused-appellant should be acquitted of the charge framed against him. 2. That prosecution has failed to prove link evidence that the seal which was fixed on the samples remained intact right from the date of sealing till they reached FSL and in this respect, the learned counsel for the accused-appellant has pointed out some of the draw-backs of the case, which shall be referred to at the time of dealing with the arguments. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order dated 18.12.1997 passed by the learned Sessions Judge, Pratapgarh. 5. I have heard the learned counsel for the accused-appellant and learned Public Prosecutor and perused the record of the case.Point No. 1 :So far as the provisions of Section 50 of the NDPS Act are mandatory or not is concerned, on this aspect, the decisions of the Hon'ble Supreme Court in (1) State of Punjab v. Balbir Singh, 1994 Cr.L.R. (SC) 241 , (2) Mohinder Kumar v. The State Panaji, Goa, AIR 1995 SC 1157 , (3) Ali Mustaff Abdul Rahman Moosa v. State of Kerala, AIR 1995 SC 244 , (4) Manohar Lal v. State of Rajasthan, AIR 1996 SC 2880 , (5) State of Punjab v. Lab Singh, etc., 1997 Cr.L.R. (SC) 76 , (6) Namdi Francies Nwazor v. Union of India & Anr., 1998 SCC (Cri) 1516 , (7) State of Punjab v. Baldev Singh, AIR 1999 SC 2378 , (8) T. Hamza v. State of Punjab, AIR 1999 SC 2966 , (9) Kalayath Nassar v. State of Kerala, 2000(1) R.Cr.D. 151 (SC) decided on 10.8.1999 , (10) Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000 Cr.L.R. (SC) 373 and (11) Ahmad v. State of Gujarat, JT 2000 (SC) 416 may be referred to.7. From the above authorities, it is very much clear that the provisions of Section 50 of the NDPS Act are mandatory and violation of these provisions would per se be fatal to the prosecution case or in other words, non-compliance of these provisions would have the effect of vitiating the entire trial.8. The next question which is to be considered is whether in the present case compliance of the provisions of Section 50 of the NDPS Act has been made or not.9. The next question which is to be considered is whether in the present case compliance of the provisions of Section 50 of the NDPS Act has been made or not.9. Before deciding the question whether the compliance of Section 50 of the NDPS Act in the present case has been made or not, some salient features which have been pointed out by the learned counsel for the accused-appellant may be referred to here.10. In this case, the accused-appellant was arrested on 5.5.1994 through Ex.P / 1 and the time of arrest mentioned in it is 8.30 p.m. The search and seizure memo prepared by PW 4 Shiv Prasad is Ex.D/2 and the time mentioned in it is 8.00 p.m. (A) Ex.P/2 Notice to motbirs and its carbon copy Ex.D/4 11. Ex.P /2 is a notice which was given by PW 4 Shiv Prasad to the motbir witnesses PW 7 Mool Singh and PW 2 Bhagwat Singh, which bears the signatures of both motbir witnesses and of Additional S.P., PW 4 Shiv Prasad, but in that notice, no time is mentioned. The carbon copy of Ex.P/ 2, which was supplied by the prosecution to accused-appellant at the time of submitting papers of challan, is marked as Ex.D/4. From perusing both of them i.e. Ex.P /2 and Ex.D/4, the most striking feature, which has come into existence is that Ex.D/2 bears the signatures of PW 4 Shiv Prasad, but its carbon copy Ex.D/4 does not bear his signatures. Not only this, signatures of the motbir witnesses are also found in original form in Ex.D/4 though they could not have been in a carbon copy in original form.12. PW 4 Shiv Prasad has admitted in his statement : 1. That it is correct to say that in Ex.P/ 2, no time is mentioned. 2. That it is also correct to say that papers which were prepared by him (PW 4 Shiv Prasad) at the time of search, copies of them were prepared either on the spot or thereafter, but he cannot say what has happened in the present case. 3. That he cannot say that whether carbon copy of Ex.P /2 was prepared or not. 3. That he cannot say that whether carbon copy of Ex.P /2 was prepared or not. During cross-examination, a question was put to PW 4 Shiv Prasad whether the signatures of motbir witnesses and of accused were obtained on the spot on the carbon copy Ex.D/4 or not and in reply to the said question. PW 4 Shiv Prasad has stated that it might be possible that for the purpose of giving copy to accused, signatures on the carbon copy have been taken wrongly.13. Thus, the fact that Ex.D/4, which is said. to be carbon copy of Ex.P/2 does not bear the signatures of PW 4 Shiv Prasad and the signatures of motbir witnesses on Ex.D/4 are in original form, clearly goes to show that carbon copy was not prepared at the time when Ex.P/2 was prepared, meaning thereby, Ex.D/4 was prepared later on.14. In this respect, the statements of motbir witnesses, namely, PW 2 Bhagwat Singh and PW 7 Mool Singh should also be referred to. PW 2 Bhagwat Singh has been declared hostile.15. PW 7 Mool Singh, in his statement, has admitted his signatures on Ex.P/2 - notice and also on the search and seizure memo Ex.D/2. But, he has admitted the following facts in his cross-examination : 1. That the opium which was recovered by the police was lying beneath the seat. 2. That he did not see opium in the hands of anybody. 3. That police, who recovered that opium, took the same alongwith accused to the Thana. 4. That all proceedings were conducted by the police in Thana and he has also put his signatures in Thana. 16. It may be stated here that PW 7 Mool Singh has not been declared hostile by the prosecution. Hence, there is no reason why reliance be not placed on his statement, as his statement on the point that everything was conducted in the Thana further gets support from the other circumstances in the present case.17. 16. It may be stated here that PW 7 Mool Singh has not been declared hostile by the prosecution. Hence, there is no reason why reliance be not placed on his statement, as his statement on the point that everything was conducted in the Thana further gets support from the other circumstances in the present case.17. Thus, from the discussion just made above, it appears that since Ex.D/4 is not the exact carbon copy of EX.P/2, the statement of PW 7 Mool Singh becomes more relevant on the aspect that all things were done by PW 4 Shiv Prasad in the Police Station and not on the spot and therefore, the statement of PW 4 Shiv Prasad has become doubtful on the point that he made search and seizure on the spot. (B) Ex.D/2 fard of search and seizure and its carbon copy Ex.Mark-B 18. Ex.D/2 is the fard prepared by PW 4 Shiv Prasad, consisting of all proceedings taken by him at the time of search and seizure. In other words, it is a fard of search and seizure by PW 4 Shiv Prasad. Ex.Mark-B is a carbon copy of Ex.D/ 2.19. PW 2 Bhagwat Singh is a motbir witness, who has been produced by the prosecution to say that he was present at the time of search and seizure. PW2 Bhagwat Singh admits in his statement that Ex.D/ 2 (original fard of search and seizure) does not bear his signatures. Another striking feature is that carbon copy Mark-B of Ex.D/2 does not bear the signatures of PW 4 Shiv Prasad, who prepared the fard Ex.D/2. Since the carbon copy Mark-B of Ex.D/ 2 does not bear that signatures of the person, who has conducted the search and seizure and has prepared fard of search and seizure Ex.D/2, it means these fards were not prepared on the spot and in this respect, the statement of PW 7 Mool Singh (another motbir witness) may be referred to again, who has specifically stated that all fards have been prepared in the Thana.20. It may also be stated here that punishment given for the offences under the NDPS Act is a very severe one, therefore, proceedings of search and seizure should not be done so lightly as has been done in the present case.21. It may also be stated here that punishment given for the offences under the NDPS Act is a very severe one, therefore, proceedings of search and seizure should not be done so lightly as has been done in the present case.21. PW 4 Shiv Prasad has further stated in his statement that at the time of search and preparation of fard Ex.D/2, PW 8 Raman Lal, SHO, Police Station, Jakham was also present. The written information Ex.P /5 which was sent by PW 5 Shiv Prasad to PW 8 Ramanlal also revealed that at the time of search and seizure, PW 8 Ramanlal was present. However, from the statement of PW 8 Ramanlal, it appears that at the relevant time, he was SHO, Police Station Jakham, under whose territory, alleged incident took place and he has nowhere stated that he was present at the time of search and seizure. Therefore, this aspect also goes to show that all proceedings were conducted in the Thana and that is why, PW 4 Shiv Prasad has mentioned the name of PW 8 Ramanalal in his report Ex.P/5 as well as in the search and seizure memo Ex.D/2 showing presence of PW 8 Ramanlal at the time of search and seizure.Notice Ex.P/7 issued under section 50 of the NDPS Act and its carbon copy Ex.Mark-A22. The notice under section 50 of the NDPS Act, which was given to accused-appellant by PW 4 Shiv Prasad is Ex.P/7. Before proceeding further, some of the salient features of notice Ex.P /7 may be referred to here.23. In the notice Ex.P/7, no time is mentioned. The names of motbir witnesses are also not mentioned in the notice Ex.P / 7. The carbon copy of the notice Ex.P/7 is Ex.Mark-A. It does not bear the signatures of PW 4 Shiv Prasad, who is said to have issued notice Ex.P/7 to accused-appellant. Thus, the same thing is also happening with the carbon copy Mark-A of notice Ex.P/ 7.24. In Ex.D/2, which is a fard of search and seizure, it is mentioned that when PW 4 Shiv Prasad was searching accused-appellant in the Bus, he found a plastic bag in the hands of accused-appellant and in that bag, a polythene bag was found containing black substance. Thereafter, PW 4 Shiv Prasad, alighted from the bus alongwith accused-appellant and he gave notice Ex.P/ 7 to accused-appellant.25. Thereafter, PW 4 Shiv Prasad, alighted from the bus alongwith accused-appellant and he gave notice Ex.P/ 7 to accused-appellant.25. PW 4 Shiv Prasad, in his statement, has admitted that he gave notice Ex.P/ 7 to accused-appellant after getting down from the Bus. He has further admitted that he gave that notice Ex.P/ 7 in presence of witnesses, but he did not obtain signatures of witnesses on the said notice Ex.P/7.26. From perusing the statement of PW 4 Shiv Prasad as well as search and seizure memo Ex.D/2, it appears that PW 4 Shiv Prasad has stated that he found some black substance in the polythene bag, it means PW 4 Shiv Prasad had come to the conclusion that accused-appellant had contraband opium before issuing notice Ex.P/7. Thus, search of accused-appellant in real sense had already taken place in the Bus by PW 4 Shiv Prasad and giving notice Ex.P/7 thereafter alighting from the Bus to accused-appellant was nothing but a mere formality to show compliance of Section 50 of the NDPS Act and not keeping in mind the intention of the legislature for what purpose Section 50 has been inserted in the NDPS Act.27. Thus, keeping in mind all the facts and circumstances of the present case and the facts that there are some material differences between Ex.P/ 2 notice and its carbon copy Ex.D/4, Ex.D/ 2 fard of search and seizure and its carbon copy Ex.Mark-B and Ex.P/ 7 notice and its carbon copy Ex.Mark-A, it can easily be said that compliance of the mandatory provisions of Section 50 of the NDPS Act in the present case has not been made and what has been done by PW 4 Shiv Prasad has been done after search had already taken place and he gave notice Ex.P/ 7 for the purpose of making formality and apart from this, from the discussion made above, the following two aspects have come into existence : 1. That since there are material differences between Ex.P/2 notice and its carbon copy Ex.D/4, Ex.D/ 2 fard of search and seizure and its carbon copy of Ex.Mark-B and Ex.P/7 notice and its carbon copy Ex.Mark-A, therefore, it can be said that all these documents were not prepared at one time. 2. That all proceedings were conducted in haste and in the Thana and not on the spot. 2. That all proceedings were conducted in haste and in the Thana and not on the spot. Point No. 2 :Thus, compliance of Section 50 of the NDPS Act has not been held to be proved in the present case by the prosecution.28. So far as the argument of link evidence is concerned, one thing is very much clear in the present case that specimen seal impression which was prepared by PW 4 Shiv Prasad, is marked as Ex.P/8 and actually it should have been sent to FSL alongwith the sample A/1, but from the statement of PW 8 Ramanlal, it is very much clear that he also prepared the specimen seal impression, which is marked as Ex.P/16 and he has stated that copy of fard of specimen seal impression Ex.P/16 was sent alongwith the sample A/1 to FSL. It means, specimen seal impression Ex.P/ 8 which was prepared by PW 4 Shiv Prasad at the time of search and seizure has not been sent alongwith the sample A/1 to FSL. This may be regarded as mere irregularity, but this fact also leads to same conclusion that all proceedings took place in Thana that is why, PW 8 Ramanlal also prepared fard of seal impression in Thana, though he was not present. The irresistible conclusion that can be drawn from the above facts is that all proceedings took place in Thana.29. In view of the discussion made above, it can be held that the prosecution has failed to prove its case against the accused-appellant with cogent, impartial and reliable evidence and beyond reasonable doubt and, as already stated earlier, the compliance of the mandatory provisions of Section 50 of the NDPS Act in the present case has not been made and thus, the findings of the learned Sessions Judge convicting the accused-appellant under section 8/18 of the NDPS Act cannot be sustained and the same are liable to be set aside and on this ground alone, accused-appellant is entitled to acquittal.In the result, the appeal of the accused-appellant-Yusuf is allowed and the judgment and order dated 18.12.1997 passed by the learned Sessions judge, Pratapgarh are set aside and the accused-appellant is acquitted of the charge under section 8/18 of the NDPS Act. Since accused-appellant-Yusuf is in jail, he be released forthwith, if not required in any other case.Appeal allowed. *******