JUDGMENT 1. - This appeal has been filed by the accused-appellants against the judgment and order dated 19.3.1998 passed by the learned Sessions Judge, Pratapgarh in Sessions Case No. 162/94 by which he convicted both the accused-appellants for the offence under section 8/21 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `the NDPS Act') and sentenced each of them to undergo ten years RI and to pay fine of Rs. one lac, in default of payment of fine, to further undergo six months' RI. 2. The facts giving rise to this appeal, in short, are as follows:- Facts pertaining to accused-appellant No. 1-Shamin Khan The case of the prosecution is that on 14.7.1994, PW 10 Prasan Kumar, Dy.S.P., Chouti Sadri received a secret information from Mukhbir to the effect that two persons had gone to village Ambawali for purchasing heroin and heroin would be sold to them by Shamin Khan (accused-appellant No. 1) near the bushes of tree near the field of Nanda Rawat. That information was reduced into writing by PW 10 Prasan Kumar and the same is Ex.P/ 25 and as per the secret information, PW 10 Prasan Kumar alongwith other police officials including PW5 Datar Singh, SHO, Police Station Chouti Sadri, PW 9 Rajendra Singh, SHO, Badi Sadri and Shyamlal, Head Constable proceeded towards the spot at about 2.00 p.m. in Government Jeep and reached there at about 4.30 p.m., where they saw a person coming on bicycle and he was also having a bag on his cycle and that person stopped his cycle near the tree and kept bag in his hand and started seeing here and there as if he was waiting for somebody. Upon this, PW 10 Prasan Kumar came to the conclusion that this person was the same person for whom he has received secret information from Mukhbir. Thereafter, that person, in the presence of two motbirs, namely, PW 3 Kanwarlal and PW 4 Keshuram and other police officials, was caught hold and on being asked, he told his name as Shamin Khan S/o Samand Khan (accused-appellant No. 1) and PW 10 Prasan Kumar informed the accused-appellant No. 1 that he had information that accused-appellant No. 1 had heroin with him. Thereafter, a notice Ex.P/6 was given by PW 10 Prasan Kumar to accused-appellant No. 1 asking him whether he wanted to be searched by PW 10 Prasan Kumar, who was a Gazetted Officer or whether he wanted to be searched before any Gazetted Officer or Magistrate. Upon this, accused-appellant No. 1 gave his consent that he could be searched by PW 10 Prasan Kumar and thereafter, bag, which was in the possession of the accused-appellant No. 1, was opened and in that, a polythene pouch of green colour containing some contraband article was recovered and on seeing it, it was assessed that it was nothing, but heroin. Thereafter, it was weighed and its weight was found to be 300 grms. and out of 300 grms., two samples of 10 grms. each were taken for chemical analysis and they were sealed separately and marked as A-1 & A-2 and rest heroin was also sealed and marked as `A'. The accused-appellant No. 1 informed that he had taken this heroin from one Amjad Khan. The fard of search and seizure Ex.P/5 was prepared on the spot by PW 10 Prasan Kumar and specimen seals were also taken by PW 10 Prasan Kumar on separate paper and the same is Ex.P/ 7. The accused- appellant No. 1 was arrested through Ex.P/26 and all the seized articles were sent through PW 5 Datar Singh, SHO, Police Station Chouti Sadri for being handed over to PW 7 Padam Singh, SHO, Police Station Dholapani. The report Ex.P/10 written by PW 10 Prasan Kumar was also given by him to PW 5 Datar Singh for handing over to PW 7 Padam Singh and PW 5 Datar Singh handed over the same to PW 7 Padam Singh. Thereafter, regular FIR Ex.P/13 was chalked out at police station Dholapani. PW 7 Padam Singh deposited all the articles in the Malkhana and they were received by PW 8 Bhanwar Singh, Malkhana Incharge and copy of Malkhana Register is Ex.P/ 24. Facts pertaining to accused-appellant No. 2-Amjad Khan @ Munna KhanThrough Ex.P/3, PW 7 Padam Singh arrested this accused- appellant on 15.7.1994 and during arrest, he gave information Ex.P/14 that in one room of his house there was a stand and he could get recovered heroin, which was kept in a dibbi. Facts pertaining to accused-appellant No. 2-Amjad Khan @ Munna KhanThrough Ex.P/3, PW 7 Padam Singh arrested this accused- appellant on 15.7.1994 and during arrest, he gave information Ex.P/14 that in one room of his house there was a stand and he could get recovered heroin, which was kept in a dibbi. On this information, PW 7 Padam Singh at about 2.15 p.m., in presence of two motbirs PW 2 Mangilal and Nanuram recovered 12 grams. heroin and since it was small quantity, no sample was taken and it was sealed on the spot and marked as `C'. The fard of recovery and seizure of heroin from accused-appellant No. 2-Amjad Khan @ Munna Khan is Ex.P/ 1. The seized article `C' was also given by PW 7 Padam Singh to PW 8 Bhanwar Singh, Malkhana Incharge, who deposited the same in the Malkhana on 15.7.1994.Thereafter, along with letter Ex.P/11, two samples marked A-1 and `C' were sent to FSL, Jaipur through PW 6 Ram Singh and receipt of depositing them in FSL is Ex.P/12. The report of FSL is Ex.P/ 23, where it has been stated that both samples A-1 and C gave positive test for the presence of Diacetyl morphine (Heroin).After usual investigation, police submitted challan in the Court against both the accused-appellants.On 17.2.1995, the learned Sessions Judge, Pratapgarh framed charges against both the accused-appellants for the offence under section 8/21 of the NDPS Act. The charges were read over and explained to the accused-appellants, who pleaded not guilty and claimed trial.During trial, the prosecution in support of its case examined as many as 11 witnesses and got exhibited some documents. Thereafter, statements of the accused-appellants under section 313 Cr.P.C. were recorded. Five witnesses were produced in defence and some documents were also got exhibited by the accused- appellants in defence.After conclusion of trial, the learned Sessions Judge, Pratapgarh vide his judgment and order dated 19.3.1998 convicted both the accused-appellants for the offence under section 8/21 of the NDPS Act and sentenced each of them in the manner as indicated above holding inter alia: 1. That compliance of Sections 42 & 50 of the NDPS Act has been made by the prosecution in the present case. 2. That seals on samples marked A-1 and C, which were sent to FSL, were intact. 3. That compliance of Sections 42 & 50 of the NDPS Act has been made by the prosecution in the present case. 2. That seals on samples marked A-1 and C, which were sent to FSL, were intact. 3. That the prosecution has proved its case beyond reasonable doubt against the accused-appellant No. 1-Shamin Khan for the offence under section 8/21 of the NDPS Act. 4. That the prosecution has also proved its case beyond reasonable doubt against accused-appellant No. 2-Amjad Khan @ Munna Khan and the plea that Heroin was recovered from joint house was also rejected by the learned Sessions Judge. Aggrieved from the said judgment and order dated 19.3.1998 passed by the learned Sessions Judge, Pratapgraph, this appeal has been filed by the accused-appellants. 3. In this appeal, the following submissions have been made by the learned counsel for the accused-appellants : 1. That compliance of Section 42 of the NDPS Act, which is mandatory in the present case, has not been made by the prosecution. 2. That in the present case, after recovery of contraband articles from accused-appellant No. 1-Shamin Khan, as per the statement of PW 10 Prasan Kumar, he handed over all articles to PW 5 Datar Singh and PW 5 Datar Singh handed over the articles to PW 7 Padam Singh, who put his own seal and no specimen seal of PW 7 Padam Singh was taken and apart from this, from the statement of PW 8 Bhanwar Singh, it is also clear that sealed articles were given to PW 6 Ram Singh first on 23.8.1994 and they were returned back with some objections and later on, they were again given to PW 6 Ram Singh on 25.8.1994 for sending them to FSL, but such entries are not found in the Malkhana Register. Thus, there is possibility that the seals have been tampered with. 3. That compliance of Section 50 of the NDPS Act has also not been made by the prosecution. 4. That so far as the case of accused-appellant No 2-Amjad Khan @ Munna Khan is concerned, the house from where recovery was made was not in his exclusive possession and thus, he cannot be made liable and he is entitled to acquittal on this ground alone. Hence, it is prayed that this appeal be allowed and both the accused-appellants be acquitted of the charges framed against them. 4. Hence, it is prayed that this appeal be allowed and both the accused-appellants be acquitted of the charges framed against them. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order dated 19.3.1998 passed by the learned Sessions Judge, Pratapgarh. 5. I have heard the learned counsel for the accused-appellants and the learned Public Prosecutor and perused the record of the case.Point No. 1 with regard to Section 42 of the NDPS Act 6. PW 10 Prasan Kumar, who was Dy.S.P., Chouti Sadri and who has made search and seizure from accused-appellant No. 1-Shamin, has categorically stated in his statement that he received secret information Ex.P/25 from Mukhbir. From perusing Ex.P/ 25, it appears that the time of receiving that information was 4.00 a.m., while in Ex.P/5, which is a fard of search and seizure of heroin from accused-appellant No. 1-Shamin Khan, the time, which has been mentioned, was 4.30 a.m. showing that information was received by PW 10 Prasan Kumar at 4.30 a.m. Not only this, in the fard of search and seizure Ex.P/5, there is over writing at a place where time for recovery has been made and it has been marked as `K' to `H', which shows that "A" has been overlapsed by the word "P". 7. PW 10 Prasan Kumar has himself admitted in his examination that so far as the latter part of compliance of Section 42(2) of the NDPS Act is concerned, the compliance of Section 42(2), if any, made, but there is no record on the file. 8. Upon this, the learned counsel for the accused-appellants submits that there is clear cut non-compliance of Section 42(1) or at the most non-compliance of Section 42(2) of the NDPS Act is concerned, there is no dispute on this point as PW 10 Prasan Kumar has himself admitted this fact. 9. In the present case, the recovery has been made from the accused-appellant No. 1-Shamin Khan near the bushes of tree i.e. from open place. 10. Thus, the question that arises for consideration is whether in such a situation, Section 42 of the NDPS Act would be applicable or not. 11. The provisions of Section 42 of the NDPS Act are applicable in the case in which a building, conveyance or enclosed place is to be entered into and searched. 10. Thus, the question that arises for consideration is whether in such a situation, Section 42 of the NDPS Act would be applicable or not. 11. The provisions of Section 42 of the NDPS Act are applicable in the case in which a building, conveyance or enclosed place is to be entered into and searched. If such places are not to be entered into and searched, the provisions of Section 42 of the NDPS Act will not be applicable. 12. Thus, in my considered opinion, Section 42 of the NDPS would not be applicable in the present case as the search has not been effected in building, conveyance or enclosed place. 13. Hence, the first argument of the learned counsel for the accused-appellants stands rejected.Point No. 2 with regard to seal on seized articles 14. Before proceeding further, salient features which have come out from the evidence of the prosecution witnesses have to be discussed first.Salient features 1. That motbirs witnesses, namely, PW 3 Kanwar Lal and PW Keshuram of fard of search and seizure Ex.P/5 of accused- appellant No. 1-Shamin Khan have been declared hostile. 2. That there is evidence on the point that PW 10 Prasan Kumar has handed over the seized articles from accused-appellant No. 1- Shamin Khan, to PW 5 Datar Singh and PW 5 Datar Singh handed over the same to PW 7 Padam Singh and there is evidence in the statements of PW 5 Datar Singh and PW 7 Padam Singh himself that PW 7 Padam Singh put his own seals over the seals put by PW 10 Prasan Kumar on the recovered articles including two samples. 3. That fard Ex.P/19 also corroborated this tact that PW 1 Padam Singh put his own seal over articles A, A-1 & A-2, but When the statement of PW 10 Prasan Kumar was recorded in Court and recovered articles were shown to him, he admits that articles A- 1, A-2, A-3 & A-5 bear the seal of police station Chouti Sadri. That fard Ex.P/19 also corroborated this tact that PW 1 Padam Singh put his own seal over articles A, A-1 & A-2, but When the statement of PW 10 Prasan Kumar was recorded in Court and recovered articles were shown to him, he admits that articles A- 1, A-2, A-3 & A-5 bear the seal of police station Chouti Sadri. Thus, difference has come out between the statements of PW 10 Prasan Kumar and PW 7 Padam Singh that when the sealed articles were deposited in Malkhana, as per the statement of PW 7 Padam Singh, he put his own seal over these articles, it means when they were produced in the Court they should have bear the seal of Police Station Dholapani put by PW 7 Padam Singh, but as per the statement of PW 10 Prasan Kumar, when they were shown to him he found that seal which was put by him i.e. Police Station Chouti Sadri. 4. That as per the statement of PW 10 Prasan Kumar, he received secret information from mukhbir, which was reduced into writing in Ex.P/25, where the time mentioned was 4.00 a.m., while in fard of search and seizure Ex.P/5, PW 10 Prasan Kumar has stated that he received information at 4.30 a.m. and apart from this, the time of recovery has been shown as 4.30 p.m., but as already stated above, there is over writing on it. 5. That PW 6 Ram Singh states that on 25.8.1994 he took samples front PW 8 Bhanwar Singh, who was Head Constable and Malkhana Incharge and through letter Ex.P/11 he handed over the articles in FSL, Jaipur on 26.8.1994 and produced receipt Ex.P /12. He has admitted in his cross-examination that he did not give any receipt of taking the samples. 6. That another witness in this respect is PW 8 Bhanwar Singh, who was Head Constable and Malkhana Incharge in the Police Station Dholapani. He has stated that on 14.7.1994 he received all articles in sealed condition from PW 7 Padam Singh and made entries in the Malkhana Register. He has further stated that on 25.8.1994 he handed over the sealed articles to PW 6 Ram Singh for chemical analysis. He has further stated that on 15.7.1994 sealed articles which were recovered from accused-appellant No. 2-Amjad Khan were also received by him and he made entries in the Malkhana Register Ex.P /24. He has further stated that on 25.8.1994 he handed over the sealed articles to PW 6 Ram Singh for chemical analysis. He has further stated that on 15.7.1994 sealed articles which were recovered from accused-appellant No. 2-Amjad Khan were also received by him and he made entries in the Malkhana Register Ex.P /24. In cross-examination, he has admitted the following facts : 1. That it is correct that in Malkhana Register Ex.P/24, no specimen seal was affixed. 2. That articles which he received bear the signatures of PW 5 Dakar Singh, but again said that they bear the signatures of PW 7 Padam Singh. 3. That before 25.8.1994 he gave samples to PW 6 Ram Singh on 23.8.1994, but they were returned back with some objections and, thereafter, they were kept in the Malkhana, but there is no entry of this fact in the Malkhana Register. 4. That even the entry of the fact that samples were given to PW 6 Ram Singh on 23.8.1994 has not been made in the Malkhana Register. 7. That from perusing Ex.P/24-A and Ex.P/24, it becomes clear that Ex.P/ 24 is the photo-copy of the Malkhana Register and it bears the entry that samples marked A-1 and `C' were given to PW 6 Ram Singh for taking them to FSL, Jaipur, but where date is mentioned, there is over writing and it does not appear whether it is a date of 23 or 25.8.1994. However, in Ex.P/24-A, which is a hand written copy of the original Malkhana register, the date mentioned is 23.8.1994 specifically. 8. That PW 8 Bhanwar Singh states that samples were taken out first on 23.8.1994 and, thereafter, they were deposited back in the Malkhana and they were given again on 25.8.1994, but as per the Malkhana Register, the samples were given only once to PW 6 Ram Singh either it may be given on 23.8.1994 as per the hand written copy of the Malkhana Register Ex.P/24-A or on 25.8.1994 as per the photo-copy of the Malkhana Register Ex.P/24. 9. That there is no evidence as to what objections were raised by SP Office while returning the samples back and whether those objections have been meted out or not, it is also not clear. 15. Thus, from the above, it can easily be said that the articles seized from the accused-appellants were not kept in proper custody and proper form. That there is no evidence as to what objections were raised by SP Office while returning the samples back and whether those objections have been meted out or not, it is also not clear. 15. Thus, from the above, it can easily be said that the articles seized from the accused-appellants were not kept in proper custody and proper form. The evidence of the prosecution witnesses on material and important point is highly discrepant and unconvincing. It cannot be said that the seals on the seized articles from the date of seizure till they reach the FSL remained intact and there is every possibility that seals have been tampered with. The evidence adduced is wholly insufficient to conclude that what was seized from the accused-appellants alone was sent to the Chemical Examiner. On this ground alone, the accused-appellants are entitled to acquittal.Point No. 3 with regard to Section 50 of the NDPS Act 16. 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 Mustaffa 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. Haniza 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. 17. 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. 18. 17. 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. 18. 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. 19. PW 10 Prasan Kumar, who was Dy.SP and who has conducted the search and seizure in the present case, has stated that before making search, he told the accused-appellant No. 1-Shamin Khan that he was Gazetted Officer and search could be made by him, but even than he asked whether he wanted to be searched before any Gazetted Officer or Magistrate and upon this, accused-appellant No. 1 gave his consent that he could be searched by PW 10 Prasan Kumar. This conversion has been reduced in Ex.P/6 by PW 10 Prasan Kumar, though in that notice there is no mention of Section 50 of the NDPS Act and furthermore, the time mentioned in the notice is 4.15 p.m, while from perusing Ex.P/5 fard of search and seizure, it appears that there is over writing on the point of time when search was affected i.e. it is said that information was received at 4.30 a.m. and search was made at 4.30 p.m. and the time which is mentioned in Ex.P/25 is 4.00 a.m. This time does not tally with the time which is mentioned in the fard of search and seizure Ex.P/5. PW 10 has also admitted in his examination that accused-appellant No. 1 put his signatures on Ex.P /6 notice, but he did not give his consent in writing. 20. From the above, it cannot be said that compliance of Section 50 of the NDPS Act in its letter and spirit has been made by PW 10 Prasan Kumar.The case of accused-appellant No. 2-Amjad Khan @ Munna Khan 21. So far as the recovery from accused-appellant No. 2-Amjad Khan @ Munna Khan is concerned, PW 7 Padam Singh has admitted in his cross-examination : 1. That in the house from where heroin was recovered, father of accused-appellant No. 2-Amjad Khan @ Munna Khan and other members of the family were also living. 2. So far as the recovery from accused-appellant No. 2-Amjad Khan @ Munna Khan is concerned, PW 7 Padam Singh has admitted in his cross-examination : 1. That in the house from where heroin was recovered, father of accused-appellant No. 2-Amjad Khan @ Munna Khan and other members of the family were also living. 2. That the land from where recovery was made was open one and there was no lock on it. 3. That he did not record the statements of those persons who were living jointly with accused-appellant No. 2-Amjad Khan @ Munna Khan. 22. Thus, from the statement of PW 7 Padam Singh, it appears that the house in question was not in exclusive possession of the accused-appellant No. 2-Amjad Khan @ Munna Khan alone and his brother and father were also living there jointly. In such a situation, his conviction under section 8/21 of the NDPS Act cannot be upheld. 23. Apart from this, the information which was given by accused- appellant No. 2-Amjad Khan @ Munna Khan to PW 7 Padam Singh is Ex.P /14 and copy of this information which was supplied to accused-appellant No. 2-Amjad Khan @ Munna Khan is D/1. There is much difference between the two in language. When it is a carbon copy of the original, no change in language should have come, but there is much difference in language. This also creates doubt in the manner in which the investigation was conducted and fard was prepared by I.O. i.e. PW 7 Padam Singh. 24. For the reasons stated above, the prosecution has failed to prove its case beyond reasonable doubt against both accused- appellants and thus, the findings of the learned Sessions Judge convicting the accused-appellants fox-the offence under section 8/21 of the NDPS Act are liable to be set aside and this appeal deserves to be allowed.Accordingly, this appeal filed by the accused-appellants-Shamin Khan and Amjad Khan @ Munna Khan is allowed and the impugned judgment and order dated 19.3.1998 passed by the learned Sessions Judge, Pratapgarh are set aside and they are acquitted of the charge under section 8/21 of the NDPS Act. Since they are in jail, they be released forthwith, if not required in any other case.Appeal allowed. *******