G. K. GUPTA, J. This appeal has been preferred by Sunil Kumar and Iddu Shah against the judgment and order dated 13- 8-1993, passed by the Sessions Judge, Bijnor in S. T. No. 27 of 1992 whereby both the appellants have been convicted and sentenced for a period of ten years and a fine of Rupee One Lakh (Rs. 1,00,000) each under Section 15 N. D. P. S. Act. 2. The facts giving rise to the prosecution case, in brief, are that on 6-8-1992 Om Prakash Sharma (P. W. 1) alongwith S. I. Veer Pal Singh (P. W. 2), Head Constable Jagdish Prasad, Netra Pal Sharma and three Constables were on patrol duty in the city at about 9. 05 p. m. When they reached Bus-Stand Chandpur via exhibition ground, S. I. Vachan Singh was also picked up. Then they all proceeded and reached on the Bashta Road near Dr. Ambedkar statue where police personnel and picket party consisting of Shashi Pal Singh, H. C. Gajendra Singh and 1- 1/2 dozen P. A. C. personnel were available who were also picked up. The entire force consisting of police personnels and P. A. C. proceeded and reached Mohalla Chandan Shah where it was informed through a Mukhbir that in front of the shop of Mehndi Hasan S/o Sabir Hasan in Mohalla Chandan Shah, two persons are sitting with 18 bags of poppy straw and they are all waiting some Metador for transportation to some other place for sale. On this information Government Gypsy was parked on the crossing (Chauraha) near the house of Ram Autar Bansal and they proceeded to the spot on foot alongwith the informant. No public witness, despite efforts, was available. They all reached at the place of occurrence and accused-appellants, who were sitting on bags, were apprehended on the spot at about 2 a. m. in the intervening night 6th and 7th August, 1992. On enquiry the accused persons disclosed their names and address. On the search of accused Sunil Kumar Rs. 900 were found from his possession while from the possession of Iddu Shah Rs. 120 was found. The accused at the time of arrest were sitting on the bags full of poppy straw. All these bags were also taken into custody. Eighteen samples one from each bag were taken and each sample was sealed separately. The bags were also stitched and sealed. 120 was found. The accused at the time of arrest were sitting on the bags full of poppy straw. All these bags were also taken into custody. Eighteen samples one from each bag were taken and each sample was sealed separately. The bags were also stitched and sealed. The recovery memo Ext. Ka-1 was prepared on the spot. The accused-appellants and recovered contrabands were brought to the police station Chandpur where chick F. I. R. Ext. Ka-4 was prepared and necessary entries were made in the G. D. vide Ext. Ka-5. The investigation of the case was taken up by P. W. 3 S. I. Hoshiyar Singh Yadav, who visited the spot, prepared site plan Ext. Ka-2 and submitted charge-sheet. Samples were taken by Constable Onkar Singh for sending them to the office of Chemical Examiner, Agra, after obtaining the orders of the Court. 3. On the charges being framed, the accused-appellants denied the same and claimed to be tried. In support of its case the prosecution examined P. W. 1 Om Prakash Sharma S. I. , P. W. 2 Veer Pal S. I. , P. W. 3 H. S. Yadav S. I. , P. W. 4 Arun Kumar H. C. and P. W. 5 Constable Onkar Singh. Statements of the accused under Section 313 Cr. P. C. was recorded. They denied the prosecution version and stated to have falsely been implicated due to enmity. Accused Sunil Kumar stated that his vehicle met with an accident and the same was detained at the police station Chandpur where tyres were changed by the police and on the matter being complained of he has been falsely implicated. In support he has filed sale-deed of the vehicle executed by Margoobur Rahman in his favour. Accused-appellant Iddu Shah stated his enmity with Shanu and Anwar, who are habitual visitors of the police station. He was called from his house and falsely implicated at their instance. 4. I have heard the learned counsel for the appellants and learned A. G. A. and perused the record. 5. Accused-appellant Iddu Shah stated his enmity with Shanu and Anwar, who are habitual visitors of the police station. He was called from his house and falsely implicated at their instance. 4. I have heard the learned counsel for the appellants and learned A. G. A. and perused the record. 5. Manifold contentions were raised by the learned counsel for the appellants to the effect that the mandatory provisions of N. D. P. S. Act have not been complied with besides there being discrepancies and material contradiction and recovery being doubtful and further there is no corroboration by independent witness, still the trial Court proceeded to record a finding of conviction which is not sustainable. 6. Learned A. G. A. contended that in case of sudden seizure and search it is not possible to comply with the provisions of N. D. P. S. Act and moreover their compliance is not mandatory. He further submitted that the discrepancies and inconstancies are bound to be thereafter lapse of time and they are not material particularly in view of the heavy recovery which cannot be planted. 7. Learned counsel for the appellants submitted in reply that in case of sudden recovery the compliance of mandatory provisions may not be necessary but in the present case it was not a case of sudden but instead a case of planned recovery. However, the trial Court has not touched this aspect of the matter but simply recorded a finding that in compliance of Section 50 if the option for search before the Magistrate or the Gazetted Officer had not been given still the recovery cannot be held to be illegal and the accused cannot be acquitted for the alleged non-compliance. The learned Judge has come to the conclusion that since the accused were sitting on the bag and it was not the personal search and so the compliance, even if not made, it will not affect the merit of the case. 8. It may be mentioned at the very out set that under Section 50 of the N. D. P. S. Act a very valuable right has been given to a person who is being subjected for search of contraband goods to exercise option for such a search either before the nearest Gazetted Officer or the nearest Magistrate. This valuable right can neither be taken away nor curtailed by the raiding party. This valuable right can neither be taken away nor curtailed by the raiding party. It is true that this right is available only when search is made of his "person" and not of bags or container or vehicle. In the present case a large number of poppy straw in 18 bags were recovered and nothing incriminating was found from the person of the appellants. In such circumstances the compliance of Section 50 of the N. D. P. S. Act may, for the moment be not necessary but while looking to the facts and circumstances of the case it all appears to be a case of planned recovery where the compliance of the provisions of the other Section like Section 42 of the Act was must. 9. From a perusal of recovery memo Ext. Ka-1 it appears that S. I. Om Prakash Sharma (P. W. 1) alongwith S. I. Veer Pal Singh (P. W. 2), Head Constable Jagdish Prasad, H. C. Netra Pal Sharma. Cp. Om Pal Singh, Cp. Prem Kumar, Cp. Harendra Singh proceeded for patrolling by a Gypsy at about 9. 05 p. m. When they reached Roadways via Exhibition ground, S. I. Vachan Singh also met and he was also picked up. Then they reached Ambedkar statue via Bashta Road where picket party consisting of P. A. C. Constables and Head Constables, namely, Shashi Pal Singh Chauhan, Gajesh Singh and 1-1/2 Section of P. A. C. were available and they all were also picked up and accompanied the patrolling party. The entire police force and P. A. C. personnels proceeded to Mohalla Chandan Shah where they got information through a Mukhbir that in Mohalla Chandan Shah in front of the shop of Mehndi Hasan S/o Sabbir Hasan two persons are sitting with 18 bags of poppy straw and are waiting for a Matador as they want to take it to some other place for sale. 10. From the above it is crystal clear that Mukhbiri was done when the police contingent reached at Mohalla Chandan Shah and not before it. The learned Government Advocate could not answer as to why the police personnels and P. A. C. personnels were collected from various places in so large numbers, while on patrol duty, if they have no information as such. The learned Government Advocate could not answer as to why the police personnels and P. A. C. personnels were collected from various places in so large numbers, while on patrol duty, if they have no information as such. The collecting of police force and P. A. C. personnels from various places is, itself suggestive of fact that they were having knowledge of the presence of such contraband goods from before hand. If it was so, non-compliance of provisions of N. D. P. S. Act certainly creates a doubt as to the truthfulness of the prosecution version. The learned trial Court came to the conclusion that the non- compliance of mandatory provisions of Sections 42 and 50 does not make search and seizure illegal but in such cases available evidence has to be examined strictly and with great caution. But it is a sorry tale that despite such a finding the trial Court took the things very lightly and believed the prosecution version. However, the conclusion arrived at by the trial Court do not stand to reason. 11. In this case no public witness was examined. It has been stated that efforts were made to fetch public witnesses but the same were not available. May it be so due to dead hours of night but at the same time it has come in evidence that contraband bags were got weighed, according to P. W. 1 Om Prakash after being brought to the police station while according to P. W. 2 Veer Pal the same were weighed at the spot in a nearby flour-mill. Whatever the facts may be but if the same were weighed in the night, where ever it may be, the prosecution should have produced either the proprietor or some servant where the contraband bags were weighed. Further more, as per prosecution case, the contraband goods were brought from the spot to the police station on a Buggy but this Buggywala was also not produced. More surprisingly, even the name of the said Buggywala could neither be disclosed nor any such entry was made in the G. D. nor the same was proved. Again it has come in evidence that 18 samples, one from each bag, was taken and the same was kept separately in plastic bags and were sealed on the spot. From where these plastic bags came, there is material discrepancy in the statement of the witnesses. Again it has come in evidence that 18 samples, one from each bag, was taken and the same was kept separately in plastic bags and were sealed on the spot. From where these plastic bags came, there is material discrepancy in the statement of the witnesses. If these plastic bags were taken from some nearby place, there was no difficulty at least to disclose the name of the person who supplied the bags. The learned Sessions Judge has taken note of all these discrepancies but took the thing very lightly despite his own findings that evidence in this case has to be examined critically particularly in the background where compliance of mandatory provision of Sections 42 and 50 has not been made. To my mind, these discrepancies are very material and cast a shadow of doubt as to the correctness of the prosecution version. If the contraband goods can be weighed, if the Buggy and plastic bags can be arranged in the dead hours of night, it is difficult to digest that independent witnesses could not be fetched. 12. Again the witnesses examined in this case are at variance on the point as to whether the accused were brought to the police station on foot or by police gypsy. There is also variance in the statement of the witnesses as to the place where these contraband goods were placed on the spot. Further such a large number of police contingent, who were in worthee, reached the spot but none of the accused attempted on run away is a matter of surprise and does not appear to be natural one. Both these two appellants were arrested while they were sitting on the bags and on their arrest, no query and no interrogation as regards to their presence, their purpose and what is there in the bags etc. were made which is a circumstance against natural course of conduct. 13. It was also contended by the learned counsel for the appellants that in this case no compliance of provisions of Section 57 of the N. D. P. S. Act was made. There is nothing on record either in the recovery memo or in the statement of the witnesses which could show the compliance of the provisions of Section 57 which is also fatal to the prosecution case. There is nothing on record either in the recovery memo or in the statement of the witnesses which could show the compliance of the provisions of Section 57 which is also fatal to the prosecution case. However, learned A. G. A. contended that there may be irregularities and discrepancies which are bound to occur after a lapse of time but in this case there is a recovery of large quantity of poppy straw which cannot be planted. The learned trial Court has also considered this aspect of the matter and came to the conclusion that the police cannot plant 18 bags of poppy straw. In my opinion, the mere fact that the quantity is huge, it does not mean exonerating or relaxing the burden which lies on the prosecution to prove its case beyond all reasonable doubt. 14. A perusal of the entire evidence on record gives out a very gloomy picture. The prosecution appears to have not been coming with clean hands but instead cooking up the facts one way or the other. Doubts stand ensuing from the very beginning when Police Personnel were collected at different places. They proceeded towards the spot in large numbers. Why such large contingent of force was collected if they were simply on patrol duty and were having no information about the accumulation of bags of poppy straw. The prosecution story appears to have been chalked out just with a view to frustrate the compliance of provisions of N. D. P. S. Act. Further the Mukhbari was done at a place where the work of Collecting Police Force was accomplished. It is further doubtful that Mukhbir was waiting there for arrival of the Police force and then to pass on the alleged information in respect of the availability of the contraband. Further, as already stated above, no independent witness could be fetched despite involvement of some of the agencies as flour mill, Buggywala and supplier of the plastic bags. The most glaring point worth nothing, as concluded by the trial Court is that the recovery memo was prepared at the police station and not on the spot. If the recovery memo has been prepared at the police station, it in self shatters the entire edifice of the prosecution structure to the effect that the raiding party stayed at the spot about 3 or 4 hours and recovery memo was prepared at the spot. If the recovery memo has been prepared at the police station, it in self shatters the entire edifice of the prosecution structure to the effect that the raiding party stayed at the spot about 3 or 4 hours and recovery memo was prepared at the spot. 15. In view of foregoing discussion I am of the opinion that the prosecution has not been able to establish its case against accused-appellants beyond reasonable doubt and, therefore, appeal is liable to be allowed and the accused-appellants are liable to be acquitted. 16. In the light of above, appeal is allowed. Both the accused- appellants Sunil Kumar and Iddu Shah are acquitted. They are in jail. They shall be released forthwith, if not wanted in any other case. Appeal allowed. .