JUDGMENT 1. - This appeal has been filed by the accused-Narayan against a judgment dated 10.5.1999 delivered by the learned Special Judge, N.D.P.S. Cases, Bhilwara. 2. The prosecution story, in nut-shell, is to the effect that on 12.3.1997 at 3.30 p.m., a secret information was received by the S.H.O. Police Station, Hameergarh Dist. Bhilwara to the effect that some one on a 'Motor Cycle' bearing No. RJ30-M/0704 was likely to come from Chittorgarh for going to Bhilwara along with contraband opium. The S.H.O. PW-13 Manjeet Singh prepared a Memo u/s. 42 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'the Act of 1989') and PW-3 Kailash Chandra Constable was despatched to inform the Circle Officer Rustam Ali (PW-14) about the said information. Subsequently, the SHO Manjeet Singh along with the other police personnel proceeded towards 'Bardoud Chouraha' and a 'Naka Bandi' was carried there. At about 4.30 p.m., the accused appeared at the palce of 'Naka Bandi' riding a Motor Cycle and was stopped. He allegedly was given a notice u/s. 50 of the Act of 1989 and he consented to be searched by the S.H.O. in the presence of PW-14 Rustam Ali, Dy.S.P. Manjeet Singh thereupon proceeded to search the motor cycle and the two tool boxes on the left and right sides of the motor cycle yielded one polyethlyene bag each containing opium. Thereafter, the petrol tank of the motor cycle was also searched and a rubber tube containing opium was found inside the petrol tank. The weighing scales were brought from nearby tea shop of PW-4 Ashok Kumar and the total weight of the recovered opium was found to be 3 Kg. 110 grams. The recovery memo and other documents were prepared on the spot, the accused was arrested and was taken to the Police Station where an FIR was lodged by Manjeet Singh. The samples which were allegedly taken and sealed on the spot, were sent for chemical examination to the Forensic Science Laboratory at Jaipur. According to the chemical report Ex.P/17, the material examined was found to be coagulated juice of opium poppy having 2.18% morphine in it. 3. The accused-appellant pleaded not guilty to the charge u/s. 8/18 of the Act of 1989. Fourteen witnesses were examined by the prosecution. None has examined by the accused. According to the chemical report Ex.P/17, the material examined was found to be coagulated juice of opium poppy having 2.18% morphine in it. 3. The accused-appellant pleaded not guilty to the charge u/s. 8/18 of the Act of 1989. Fourteen witnesses were examined by the prosecution. None has examined by the accused. The accused denied the whole story and contended that he was arrested in Bhilwara and therefrom he was taken to the Police Station. The learned trial Judge then heard the arguments and delivered the judgment on 10.5.1999 whereby the accused-appellant was found guilty of the said charge and was awarded R.I. for 10 years and a fine of Rs. 1 lac. On account of non-payment of the said fine, additional rigorous imprisonment for six months was awarded. Against this judgment, the present appeal has been preferred. 4. I have heard the learned counsel for the appellant and the learned Public Prosecutor for the State and I am of the view that it is difficult to sustain the conclusions drawn by the learned trial Judge. 5. PW-3 Kailash Chandra Constable, PW-5 Hem Singh Constable, PW-6 Pratap Singh Constable, PW-7 Nanu Ram Constable, PW-13 Manjeet-Singh (S.H.O.) and PW-14 Rustam Ali (Dy.S.P.) were examined as eye-witnesses of the recovery. PW-2 Kanhaiya Lal and PW-4 Ashok Kumar were also examined as witnesses of the alleged recovery in the capacity of independent witnesses. Both of them denied the prosecution story about the recovery and were declared hostile witnesses. PW-2 Kanhaiyalal stated that he had gone to the police station in connection with his own FIR of dacoity and was made to sign certain documents in the police station which he signed in the bona fide belief that they pertained to the case registered by his FIR. PW-4 Ashok Kumar has stated that he runs the 'Tea' shop near the police station and his signatures were obtained when he had gone to the police station to supply tea to the staff of the police station. In this way, there is no independent corroboration of the prosecution story. 6. During course of arguments, the learned counsel for the appellant has argued that the recovery was made from one Badri Lal S/o Ram Lal Gurjar. However, subsequently, the whole story was changed by the police for extraneous consideration and instead of Badri Lal, the case was foisted upon the appellant dis-honestly. 6. During course of arguments, the learned counsel for the appellant has argued that the recovery was made from one Badri Lal S/o Ram Lal Gurjar. However, subsequently, the whole story was changed by the police for extraneous consideration and instead of Badri Lal, the case was foisted upon the appellant dis-honestly. It is further argued that all the documents were prepared at the police station and the story that any information received from the 'Mukhbir' to the recovery at the. alleged site was a complete fabrication. The learned counsel has taken me through the entire evidence and I am inclined to agree with the contentions raised by the learned counsel for the appellant. PW-3 Kailash Chandra, PW-5 Hem Singh, PW-6 Pratap Singh and PW-7 Nanu Ram have stated in unmistakable terms that it was the Dy.S.P. Rustam Ali (PW-14) who conducted the search and recovered the opium. According to these witnesses, PW-14 Rustam Ali separated the six samples and sealed them and carried the material to the police station. However, this testimony of these four witnesses is totally contrary to the testimony. of PW-13 Manjeet Singh and PW-14 Rustam Ali. According to Manjeet Singh and Rustam Ali, the search was conducted by Manjeet Singh who also separated the samples and sealed the material on the spot. This is a major contradiction and it goes to the very root of the case. 7. According to the prosecution story, the 'Mukhbir' earlier in the day informed the S.H.O. Manjeet Singh about the expected arrival of the culprit with the contraband. This information was recorded in the memo Ex.P/8 allegedly by Manjeet Singh and with a copy of the same, PW-3 Kailash Chandra was allegedly sent to inform the Circle Officer Rustam All about the same u/s. 42 of the Act of 1989. From the testimony of Kailash Chandra and Rustam Ali, it is clear that Kailash Chandra reached first Bhilwara to locate Rustam Ali and when he was not found at Bhilwara, he went to the police station, Karoi where Rustam Ali was present and the information u/s. 42 of the said Act was allegedly given to him by Kailash Chandra at Karoi. From Karoi, they allegedly went to the place of recovery and after their arrival, the accused allegedly appeared on the scene riding the motor cycle. From Karoi, they allegedly went to the place of recovery and after their arrival, the accused allegedly appeared on the scene riding the motor cycle. According to PW-3 Kailash Chandra, he and Rustam Ali reached the place of occurrence at 3.00 p.m. At 3.10 p.m., according to the witness, the accused arrived and was stopped. Strangely enough, the memo Ex.P/8 prepared u/s. 42 of the Act of 1989 contains the timing of its preparation and the same is recorded at 3.30 p.m. on 12.3.1997. This brings the whole story to the ground that this information was received by the S.H.O. at Police Station, Hameergarh and from the police station Hameergarh, the constable Kailash Chandra was sent to serve the same upon the Circle Officer Rustam Ali u/s. 42 of the Act. 8. According to the prosecution story, the investigating officer PW-14 Rustam Ali recorded the statements of PW-3 Kailash Chandra, PW-5 Hem Singh, PW-6 Pratap Singh and PW-7 Nanu Ram u/s. 161 of the Cr.P.C. These statements have been exhibited as Ex.D/1, Ex.D/2, Ex.D/3 and Ex.D/4 respectively. According to these four statements recorded u/s. 161 of the Cr.P.C., the search was conducted by the S.H.O. Manjeet Singh and the contraband was recovered by Manjeet Singh who prepared all the memos on the spot. However, the four witnesses named-above, have denied this, during their sworn testimony in the Court and have stated that whatever has been recorded in Ex.D/1 to Ex.D/4 was not stated by them. All the four have insisted that everything was done by PW- 14 Rustam Ali and nothing was done by the S.H.O. Manjeet Singh, though he was present. This type of contradiction can only come when there is no truth in the prosecution story. PW-3 Kailash Chandra, on 20.11.1997, in his examination-in-chief, stated that the recovery was conducted by the S.H.O. Manjeet Singh. However, during his cross-examination on 31.1.1998, he took a complete "U" turn and denied his own sworn testimony, which was recorded on 20.11.1997. On 31.1.1998, he denied that Manjeet Singh did anything. Needless to say that no reliance can be placed on the testimony of such witnesses. The condition of PW-6 Pratap Singh is still worse. He could not support the prosecution story initially. He was declared a hostile witness. Thereafter, in answer to leading questions, he admitted the story of recovery of the opium from the accused. Needless to say that no reliance can be placed on the testimony of such witnesses. The condition of PW-6 Pratap Singh is still worse. He could not support the prosecution story initially. He was declared a hostile witness. Thereafter, in answer to leading questions, he admitted the story of recovery of the opium from the accused. However, even this witness has not supported the prosecution version that the search was carried out by the S.H.O. Manjeet Singh. The witness has persisted that the S.H.O. Manjeet Singh was simply standing as a witness and the whole job regarding the search and sealing was done by PW-14 Rustam Ali. 9. The story given by PW-14 Rustam Ali and other witnesses, is to the effect that after Rustam Ali reached the spot, thereafter the accused appeared on the scene. Contrary to this, PW-6 Pratap Singh has deposed that the accused appeared on the scene at 3.40 p.m. and was stopped by the S.H.O. Manjeet Singh and the police party. According to this witness, the accused was made to sit there and they waited for the arrival of the Dy.S.P. Rustam Ali, who appeared 15-20 minutes subsequent to the arrival of the accused at the scene. According to PW-5 Hem Singh, the accused did not appear at the place of search prior to 4.30 p.m., whereas, according to PW-3 Kailash Chandra, the accused appeared on 3.10 p.m. and was stopped by them. 10. The contradictions which have come in respect of the place, time and manner of the alleged recovery, make the whole story highly unbelievable and suspect. The defence contention to the effect that the real culprit was one Badri Lal, becomes plausible. In this connection, the testimony of PW-14 Rustain Ali is relevant. PW-14 Rustam Ali, in his examination-in-chief, has stated that the motor cycle was stopped and the rider gave his name as Badri. Rustam Ali does not say, in so many words that it was the accused-Narayan who was riding the motor cycle. Naming of Badri as rider of the motor cycle by Rustam Ali, becomes significant in view of the fact that this Badri Lal is the registered owner of the motor cycle bearing No. RJ-30-M/0704. 11. Rustam Ali does not say, in so many words that it was the accused-Narayan who was riding the motor cycle. Naming of Badri as rider of the motor cycle by Rustam Ali, becomes significant in view of the fact that this Badri Lal is the registered owner of the motor cycle bearing No. RJ-30-M/0704. 11. The-learned Public Prosecutor has argued that though Badrilal is the registered owner but as back as on 29.1.1997, the motor cycle was purchased from Badrilal by the accused-Narayan and a writing Ex.P/10 was executed and the same was signed 'A' to B' by the accused-Narayan. According to the learned Public Prosecutor, PW-9 Badrilal, PW-10 Kanwar Lal and PW-11 Mangilal have been examined to prove the writing Ex.P/10. Ex.P/10 goes to suggest that the deal took place in the presence of PW-10 Kanwarlal and PW-11 Mangilal and the writing Ex.P/10 was executed in their presence. In this connection, the cross-examinations of PW-10 Kanwarlal and PW-11 Mangilal is revealing. In their examination-in-chief, both of them have stated as if the deal was concluded in their presence and the writing Ex.P/10 was executed in their presence. However, during cross-examination, both have stated that it was Badri Lal who brought the paper Ex.P/10 before them and obtained their signatures. PW-9 Badri Lal, in his cross-examination, states that he himself was not present when Ex.P/10 was scribed. However, he states, on oath, that Ex.P/10 was scribed in the presence of PW-10 Kanwarlal and PW-11 Mangilal. In view of this type of the testimony, I am inclined to believe that the writing Ex.P/10 has no connection with the reality and it was prepared to provide relief to Badrilal and consequently, the accused-Narayan was implicated in the case. One significant aspect of the matter is that the writing Ex.P/10 allegedly was signed by the accused-Narayan, whereas, there is no other document in the whole case file which may contain signature of the accused. Each prosecution document bears a thumb mark and no document bears the signature of the accused. At the time of pleading not guilty to the charge, the accused has thumb marked. Similarly, at the stage of Section 313 of the Cr.P.C. the statement has been thumb marked by the accused. No investigation has been made and neither Rustam Ali nor Manjeet Singh has explained this anamoly. At the time of pleading not guilty to the charge, the accused has thumb marked. Similarly, at the stage of Section 313 of the Cr.P.C. the statement has been thumb marked by the accused. No investigation has been made and neither Rustam Ali nor Manjeet Singh has explained this anamoly. The learned Public Prosecutor has argued that the accused-Narayan was riding the motor-cycle and when stopped initially, he gave his name as Badri dishonestly and hence, the deposition of Rustam Ali contains the name of Badri in his examination-in-chief. I find that this explanation is totally unacceptable in view of the fact that neither Manjeet Singh nor Kailash Chandra, Hem Singh, Pratap Singh or Nanu Ram corroborate the same. None of these witnesses say that the accused gave his name as Badri. 12. In view of what has been stated above, I find the evidence highly suspect and unbelievable. 13. I further find that there has been no proper compliance of the mandatory provisions of Secs. 42, 50, 55 & 57 in this case. As pointed out earlier, the prosecution has come with a story that u/s. 42 of the ct, the memo Ex.P/8 was prepared and the information was sent to the Dy.S.P. through PW-3 Kailash Chandra. PW-3 Kailash Chandra, however, admits that this memo was prepared at 3.30 p.m. and he signed it at the place of recovery. Similar is the testimony of the other witnesses. That goes to show that the S.H.O. Manjeet Singh failed to make any compliance in respect of Section 42 of the Act. Regarding compliance of Section 50 of the said Act the evidence is highly suspect. A memo Ex.P/4 purported to be a notice u/s. 50 of the Act, has been tendered in evidence. However, no witness has been able to explain as to who is the scribe of this Ex.P/4. Neither Manjeet Singh nor Rustam Ali nor any other witness has been able to say as to who is the author of the same. It has come in the evidence that the recovery memo and other documents which were prepared on the spot, were in the hand-writing of Bhagwat Singh Constable but the witnesses have admitted that Ex.P/4 is not in the hand-writing of Bhagwat Singh. It has come in the evidence that the recovery memo and other documents which were prepared on the spot, were in the hand-writing of Bhagwat Singh Constable but the witnesses have admitted that Ex.P/4 is not in the hand-writing of Bhagwat Singh. This supports the prosecution contention that Ex.P/4 as actually not prepared prior to the recovery but subsequently it was inserted in the file on account of the some legal devise. Bhagwat Singh who allegedly scribed the other memos was an important witness but he has not been examined. PW-3 Kailash Chandra does not say in his examination-in-chief that an option u/s. 50 of the Act was offered to the accused prior to the search. In his cross-examination, his deposition is to the effect that the Dy.S.P. Rustam Ali told the accused and asked as to whether he could be searched by the Dy.S.P. or he wanted to go to the Magistrate. The witness does not say that any offer was given to carry out the search in the presence of a Gazetted Officer. According to PW-5 Hem Singh, the offer was to the effect that whether the accused wants to be searched from the Dy.S.P. or from anybody-else. Thus, according to this witness, no offer was given to be searched in the presence of a Magistrate or a Gazetted Officer. PW-6 Pratap Singh did not say that any such offer was made. After he was declared hostile, he admitted to the suggestion given through the leading questions. PW-7 Nanu Ram does not say that the option was given to be searched in the presence of a Magistrate or a Gazetted Officer. Even PW-14 Rustam Ali's testimony is to the effect that he was given the option of search before the Dy.S.P. or a Magistrate. Thus, there was no offer to be searched in the presence of a Gazetted Officer. 14. There is no evidence to the effect that the recovered articles were re-sealed while they were deposited in the 'Malkhana' of the police station. Thus, there was no compliance of Section 55 of the Act. Similarly, there is no testimony to establish that any detailed report was sent to the higher officers u/s. 57 of the Act. During the testimony of Manjeet Singh, the alleged report Ex.P/17 was tendered in evidence which contains a note that it. was delivered to some Lalchand Head-Constable. Thus, there was no compliance of Section 55 of the Act. Similarly, there is no testimony to establish that any detailed report was sent to the higher officers u/s. 57 of the Act. During the testimony of Manjeet Singh, the alleged report Ex.P/17 was tendered in evidence which contains a note that it. was delivered to some Lalchand Head-Constable. However, neither the signature of Lalchand has been proved nor Lalchand has been examined in the Court nor any body has been examined to suggest that he was the person who carried Ex.P/15 and delivered it to Lalchand. 15. In this way, I find that there is no proper compliance of Secs. 42, 50, 55 & 57 of the Act. 16. In the result, the appeal is allowed and the judgment dated 10.5.1999 finding the appellant guilty is set aside. The appellant is acquitted of the charge. He shall be released in this case forthwith unless wanted in connection with any other case.Appeal allowed. *******