JUDGMENT 1. - Both the accused-appellants have filed this appeal under sub-section (2) of Section 274, Cr.P.C. challenging the judgment of conviction and order of sentence dated 11.8.1998 delivered in Sessions Case No. 68/97 by the Special Judge, NDPS Cases, Hanumangarh. By the impugned judgment, the appellants were convicted under section 8 r/ w Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') and each of them were sentenced to 10 years' rigorous imprisonment along with fine of Rs. 10 Lacs, in default of payment of fine to further undergo one year's simple imprisonment. 2. I have perused the impugned judgment as also evidence, ocular and documentary, available on the file and have heard Shri Sandhu, learned counsel for the appellants, as also learned Public Prosecutor, at length. 3. The brief facts as disclosed by the prosecution are that at 4.00 p.m. on 18.4.1996, at the bus-stand of village Chahiya, PW 8 Hardeep Singh, SHO, Police Station, Rawatsar, received a secret information Ex.P /17 and in consequence thereof, upon search of both the accused-appellants, found 10 kg. of poppy husk with each of the accused-appellants. They were not holding any license to keep the narcotic, therefore, samples were drawn from each recovery, the narcotic was seized and sealed in the presence of attesting witnesses - PW 1 Sishupal and PW 2 Tejpal. A joint seizure memo Ex.P/4 was prepared and after necessary investigation, both the accused-appellants were framed before the Court below, where on behalf of prosecution 8 witnesses were examined and 20 documents were exhibited. 4. The accused-appellants gave statements under section 313 Cr.P.C. Both the accused appellants have denied all the incriminating evidence and have stated that they have falsely been implicated. Thereafter, learned trial Court has convicted the accused- appellants and sentenced as stated above. 5. Learned counsel for the accused-appellants has led me through the prosecution evidence and among other contentions, has pointed out that mandatory provisions of Sections 42 & 50 of the Act have not strictly been followed and that impression of seal, by which articles were sealed, have not been sent to the Forensic Science Laboratory, with the result that reports received from the Forensic Science Laboratory looses its importance. On the contrary, learned Public Prosecutor has supported the conviction and sentence awarded by the Court below. 6. On the contrary, learned Public Prosecutor has supported the conviction and sentence awarded by the Court below. 6. It has come into evidence that as soon PW 6 Daleep Singh received secret information at 4.00 p.m. in village Chahiya, he put it in black and white, which is Ex.P/ 17. Thereafter, PW 6 Daleep Singh called attesting witnesses PW 1 Sishupal and PW 2 Tejpal and gave notices Ex.P/2 & P/3 under section 50 of the Act to accused-appellants and in the presence of both the attesting witnesses, made search of person of the accused-appellants. 7. Learned counsel for the appellants has pointed out that Exs. P/2 and P/3 do not bear signature or thumb impression of accused- appellants and their consent was got recorded by the SHO himself and thereafter signature of accused-appellant-Gurdev Singh and thumb impression of accused-appellant-Binder Singh respectively were taken on Exs. P/2 and P/3. In the consent statement, it has been mentioned that before taking the consent, alleged poppy husk has already been recovered. Pointing out these deficiencies, learned counsel pleaded that compliance of mandatory provisions of Section 50 of the Act has not been made because before issuing these notices and procuring consent of the accused-appellants, they, have already been searched and narcotic has been recovered from their possession. 8. When statements of attesting witnesses PW 1 Sishupal and PW 2 Tejpal are perused with reference to above endorsement, it becomes clear that both the attesting witnesses were not present when search and seizure was done. Both these witnesses were declared hostile and have stated that their signatures were got on blank papers and accused-appellants have not been searched in their presence. 9. Learned Public Prosecutor has contended that though notice under section 50 of the Act was given yet it was not necessary because poppy husk were not recovered from person of the accused- appellants but from the bag they were carrying. He has relied upon Kanhaiya Lal v. State of Madhya Pradesh, (2000) 10 SCC 380 , where opium was recovered not from person of the accused but from the bag which he was carrying. 10. He has relied upon Kanhaiya Lal v. State of Madhya Pradesh, (2000) 10 SCC 380 , where opium was recovered not from person of the accused but from the bag which he was carrying. 10. In the matter in hand, none of the accused-appellants were carrying any bag with them but according to PW 3 Kesar Singh, Constable, who was member of raiding party, poppy husk was recovered from a `potli' made of headgear (safa) whereas according to PW 6 Daleep Singh, poppy husk was in a `potli' of `chaddar' and according to PW 8 Hardeep Singh, SHO, poppy husk was recovered from a headgear (safa) having cross lines. The seizure memo Ex.P /4 also disclosed that poppy husk was recovered from headgear (safa) having crossed lines. Had the narcotic been recovered from a bag, pronouncement of the Apex Court in Kanhaiya Lal (supra) would be applicable but in the present case, `safa' i.e. headgear, forms part of dress of village people and more so, in case of Punjabi sikhs. Both the accused-appellants were of latter category and headgear was part of their dress. In such circumstances, it can be safely said that alleged poppy husk was recovered from search of person of the accused-appellants. Hence, formality of issuing notice under section 50 of the Act was undertaken. But before issuing mandatory notice under section 50 of the Act, these accused-appellants have been searched personally, therefore, in view of Ali Mustafa v. State of Kerala, AIR 1995 SC 244 , contraband seized as a result of illegal search can not be fastened on the persons from whom it was seized in illegal manner. 11. Even assuming that poppy husk was not recovered in the personal search of accused-appellants and mandatory provisions of Section 50 of the Act were not applicable in this case, the recovery so made has not been proved beyond reasonable doubt, for the reasons summarised in succeeding paragraphs. 12. PW 1 Sishupal and PW 2 Tejpal, both the attesting witnesses have been declared hostile and have not supported the factum of recovery of poppy husk from the accused-appellants in their presence. The remaining evidence is of PW 3 Kesar Singh, PW 6 Daleep Singh and PW 8 Hardeep Singh, who are members of the raiding party. The testimony of all these Police personnel has to be scrutinised with utmost care and caution. The remaining evidence is of PW 3 Kesar Singh, PW 6 Daleep Singh and PW 8 Hardeep Singh, who are members of the raiding party. The testimony of all these Police personnel has to be scrutinised with utmost care and caution. The Apex Court in Ahmed Hussain Sheikh Hussain v. Commissioner of Police, Ahmedabad, 1989 Cr.L.J. 2312 , has held that Court frowned upon any deviation or infraction of the procedural requirement which, in fact, is the only guarantee to the citizens against State's action. Though learned trial Court held that Section 57 was directory, taking the view that deviation from it may affect reliability of the prosecution case but cannot certainly have the effect of throwing the prosecution case over board. I am also of the considered view that when provisions of the Act have not been strictly followed though they are directory in nature and when independent attesting witnesses were not supporting the prosecution version, the remaining evidence of raiding party should be scrutinised rigorously with much care and caution and if found wholly reliable only then should be acted upon. 13. A Division Bench of Bombay High Court in Niranjan Singh v. State of Maharashtra, 1993 Cr.L.J. 300 , in similar circumstances held that where the question arises whether the Court would be well advised in basing a conviction on the material before it which essentially consists of deposition of different members of the raiding party, de hors any independent corroboration, it is always desirable to look for independent corroboration. This Court cannot close its eyes to what has been happening in trials of this type. It is under these circumstances that the Court, though on guard, will have to scrutinise the prosecution evidence far more rigorously and find out on the basis of very minute and rigorous examination, as to whether the evidence is absolutely credible and strong enough, to sustain the conviction. 14. In the matter at hand, PW 3 Kesar Singh, Constable, has given an exaggerated version in the Court and hence, has been controverted by his Police statement Ex.D/ 2 as also seizure memo Ex.P/4, which bears his signatures. This witness also stated that a memo of impression of the seal was also prepared on the site but he could not find such a memo in the Court's file and then he withdrew his above statement. This witness also stated that a memo of impression of the seal was also prepared on the site but he could not find such a memo in the Court's file and then he withdrew his above statement. Similarly, PW 6 Daleep Singh, Constable has also made exaggerated statements in the Court and when he was controverted with seizure memo Ex.P/3 and Ex.P/4, he could not explain. Similar is the case with PW 8 Hardeep Singh, SHO. He too made exaggerated version in the Court and had to be controverted with seizure memo Ex.P/1 to P/4, Ex.P/10 & Exs. 17 to P/20. 15. Apart from these deviations in the testimony, when Exs.P/2 and P/3 are looked into, in the bottom of these memos consent of the accused-appellants has been incorporated by these witnesses, which makes it clear that before giving notices under section 50 of the Act, accused-appellants have been searched and poppy husk has already been recovered. 16. Though sealed samples, marked A & B, were sent to the Forensic Science Laboratory, Jaipur yet it has not been proved whether any memo containing impression of seals, by which the samples were sealed, were also sent there. A separate memo containing impression of the seal has not been prepared and seizure memo Ex.P /4 contains impression of the seal at three places. It has not come on record that how many copies of Ex.P /4 were prepared nor it has been stated by any of the prosecution witnesses that a copy of the Ex.P/4 was also sent to the Forensic Science Laboratory, Jaipur for comparison of impression of seal, found on the samples. 17. PW 8 Hardeep Singh, SHO, has deposed that after coming from the site, he deposited both the samples and remaining sealed poppy husk in Malkhana of the Police Station. Nowhere he has stated that along with the articles, he has also given a copy of the seizure memo Ex.P/4. It has also not been stated that how many copies of seizure memo Ex.P/4 was prepared. PW 5 Dhonkal Ram, Malkhana incharge, has deposed that on 18.4.1996, two sealed packets of samples and two sealed packets of remaining narcotic were handed over to him, which belonged to Gurdev Singh and Binder Singh, which he entered in the Malkhana register at Serial No. 143. PW 5 Dhonkal Ram, Malkhana incharge, has deposed that on 18.4.1996, two sealed packets of samples and two sealed packets of remaining narcotic were handed over to him, which belonged to Gurdev Singh and Binder Singh, which he entered in the Malkhana register at Serial No. 143. The brass seal was also handedover to him by the SHO, impression of which was also put by him at place `x'. Nowhere this witness has stated that on 13.5.1996 when both the sealed samples were handed over to Constable Raj Kumar for delivery at Forensic Science Laboratory, Jaipur, along with those samples he has given any memo bearing impression of the seal by which samples were sealed. In the cross-examination, this witness stated that along with the samples, he has sent copy of the FIR as also copy of memo of seal impressions. When no such memo of seal impressions was prepared, how can same be sent to the Forensic Science Laboratory. Had it been so, atleast PW 7 Rajkumar would have corroborated the same. Even receipt Ex.P/ 13 issued by the Forensic Science Laboratory indicates that two sealed packets were deposited by Rajkumar Constable. 18. It has been admitted by PW 8 Hardeep Singh that on that day, poppy husk was recovered from two other persons along with these accused-appellants and they also were booked under the Act. PW 7 Rajkumar has also admitted that along with the two samples of this case, he had also deposited samples of some other case in the Forensic Science Laboratory. In these circumstances, possibility of fixing these accused-appellants cannot be ruled out else there should not have been any infirmities, inconsistencies and contradiction in testimony of the prosecution witness. Learned trial Court in a casual and cavalier manner dealt with the defence pleas taken before it. In my view, the uncorroborated testimony of these police witnesses of raiding party, upon minute and rigorous examination, does not inspire confidence and is not found absolutely credible, strong enough to sustain the conviction. 19. For all these reasons, I have no alternative but to accept this appeal. Hence, I set aside the conviction and sentence awarded to the accused-appellant by the learned Special Judge, NDPS Cases, Hanumangarh in Sessions Case No. 68/97 vide order dated 11.8.1998. Accused- appellants are presently in District Jail, Hanumangarh. 19. For all these reasons, I have no alternative but to accept this appeal. Hence, I set aside the conviction and sentence awarded to the accused-appellant by the learned Special Judge, NDPS Cases, Hanumangarh in Sessions Case No. 68/97 vide order dated 11.8.1998. Accused- appellants are presently in District Jail, Hanumangarh. If they are not required in any other case, they are ordered to be set at liberty forthwith.Appeal allowed. *******