MUKTESHWAR PRASAD, J. Accused Azadar Hussain has filed this appeal against the judgment and order dated 16-1-1998 passed by Sri S. K. Ratoori, the then 1st Additional Sessions Judge, Siddharth Nagar whereby he convicted the accused under Section 20 (b) (ii) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the act and sentenced him to suffer rigorous imprisonment for a period of ten years and to pay a fine of rupees one lac. In default, he was ordered to undergo additional rigorous imprisonment for a period of three years. 2. In brief, the facts of the case are as under. PW 1 S. I. Anjani Kumar Upadhyay was posted as Station Officer of P. S. Dumariaganj in the month of January, 1996. On 25-1-1996, S. I. A. K. Upadhyay accompanied by two constables Imtiaz Ansari and Anang Bhushan Mishra were checking the vehicles and criminals at Bedaulagarh Crossing. A Mukhbir informed S. I. A. K. Upadhyay that a suspected criminal, having a plastic bag in his hand, was coming towards crossing. At about 10. 00 p. m. at the pointing out of Mukhbir, S. I. A. K Upadhyay and the constables intercepted a person who disclosed his name as Azadar Hussain, son of Syad Evney Hussain, resident of Meerapatti, P. S. Khutahan (Jaunpur ). 3. On being searched about one kg. illicit Charas concealed in a plastic packet which was kept in a bag was recovered. The accused disclosed that he was bringing Charas from Nepal. He did not give his consent for being searched in the presence of any Gazetted Officer of the police department. After disclosing the grounds of arrest, accused Azadar Hussain was formally arrested by the police for having Charas in his possession. About 50 gms. Charas was taken out as sample, kept in a cloth and sealed on the spot. The remaining Charas was also sealed. No public witness was available at the time of arrest and recovery on account of odd hours of night. 4. A seizure memo was prepared on the spot, which was read over and signatures of constables and accused were obtained thereon. A copy of Fard recovery was given to the accused. 5. Accused Azadar Hussain and the recovered Charas were brought to the police station where constable Shesh Nath Yadav registered a case and prepared FIR. A case was registered at 11. A copy of Fard recovery was given to the accused. 5. Accused Azadar Hussain and the recovered Charas were brought to the police station where constable Shesh Nath Yadav registered a case and prepared FIR. A case was registered at 11. 30 p. m. on the same night. 6. The case was investigated by PW 3 S. I. Bibhuti Yadav. He interrogated the witnesses and at the pointing out of constable Imtiaz Ansari prepared site-plan. The sample of Charas was sent to Lucknow for chemical examination through constable Raj Mangal Paswan and after receipt of the report, the IO sent charge-sheet to the Court. 7. Accused Azadar Hussain was charged under Section 20 (b) (ii) of the Act on 16-7-1997 to which he pleaded not guilty and claimed to be tried. 8. At the trial, the prosecution examined PW 1 S. I. Anjani Kumar Upadhyay, the arresting officer who proved seizure memo and recovered Charas, PW 2 constable Anang Bhushan Mishra was accompanying the arresting officer and is a witness of fact, PW 3 S. I. Bibhuti Yadav is IO of the case who proved site- plan and charge-sheet. 9. Accused Azadar Hussain totally denied all accusations levelled against him by the prosecution and pleaded his false implication in the case. He led no evidence in defence. 10. After close scrutiny of the entire evidence on record led by the prosecution and considering the submissions made on behalf of the parties, learned Judge found the accused guilty and convicted and sentenced him, as noted above. Hence, this appeal. 11. I have heard learned Counsel for the appellant, learned AGA and have perused the record carefully. 12. Learned Counsel for the appellant has contended vehemently that there is actually no link evidence on record to connect as to when Charas was deposited in the Malkhana and when it was taken out. According to him, the constable who took the sample to Lucknow for chemical examination was not examined by the prosecution. There has been no compliance of the provisions of Sections 42, 50, 55 and 57 of the Act. The alleged arrest and recovery of Charas was made from the possession of the appellant at a busy crossing. However, no public witness was associated with the recovery and there is no satisfactory explanation on record on this point. There has been no compliance of the provisions of Sections 42, 50, 55 and 57 of the Act. The alleged arrest and recovery of Charas was made from the possession of the appellant at a busy crossing. However, no public witness was associated with the recovery and there is no satisfactory explanation on record on this point. Reliance has been placed on the following decisions: (1) Muhammad Din and another v. Emperor, AIR 1926 Lahore 79. (2) Mohinder Kumar v. State, Panaji, Goa, 1999 SCC (Cri) 79. (3) Kamlesh Rai v. The State of U. P. , 2001 All JIC 159. 13. On the other hand, learned AGA has supported the judgment and submitted that the appellant was rightly convicted by the trial Court and the appeal is liable to be dismissed. 14. I have considered the submissions made on behalf of the parties and have gone through the entire evidence on record carefully. In my considered opinion, the prosecution could not bring home the charge against the appellant beyond reasonable doubt and as such, he deserves acquittal. First of all, I find that PW 1 A. K. Upadhyay who was posted as Station Officer at P. S. Dumariaganj was not present at the police station at 10. 00 p. m. and was checking vehicles in a winters night at about 10. 00 p. m. The very presence of the S. O. himself alongwith two constables at the odd hours of night appears to be highly doubtful. The arresting officer disclosed that he received information from the Mukhbir a few minutes before the arrest of the appellant and no independent witness was available there as it was 10. 00 p. m. He however, admitted that arrest was made at a chauraha having houses in the neighbour- hood. PW 2 Anang Bhushan Mishra, a constable, gave contradictory statement on this point and testified that Mukhbir informed the S. O. at about 9. 30 p. m. However, neither he nor the arresting officer summoned any resident of the locality to witness the arrest and recovery. The IO also admitted in his cross-examination that there were shops near place of occurrence. It is very clear that no efforts were made by the arresting officer to bring public witnesses to witness the arrest and recovery from the appellant. It is true that it was winters night and the arrest was made at about 10. The IO also admitted in his cross-examination that there were shops near place of occurrence. It is very clear that no efforts were made by the arresting officer to bring public witnesses to witness the arrest and recovery from the appellant. It is true that it was winters night and the arrest was made at about 10. 00 p. m. The arresting officer had received information about half an hour before arrival of the appellant at the crossing. He, therefore, could summon one or two public witnesses. 15. Constable Imtiaz Ansari, who was also accompanying the arresting officer, did not appear in the witness box. 16. I further find that no link evidence was led by the prosecution and the evidence regarding compliance of Section 55 of the Act is totally lacking. It is true that the arresting officer was himself officer-in-charge of the police station. He must have used his seal at the time of recovery of Charas from the possession of the appellant. PW 3 S. I. Bibhuti Yadav, IO of the case gave out that sample of Charas was taken to the Court of CJM, Siddharth Nagar who signed the docket and thereafter, constable Raj Mangal Paswan took the sample to Public Analyst for chemical examination. He, however, did not disclose as to when the constable took out the sample from the police station and reached the Court of CJM at Siddharth Nagar. The evidence is lacking on the point as to when the constable Raj Mangal Paswan left the police station for Lucknow. The sample was received in the office of chemical examiner on 3-2-1996 and found to be Charas after examination. In the instant case, the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period in question. 17. I further find that no report as contemplated under Section 57 of the Act was sent to the superior officers by the arresting officer and thus, I find there has been no sufficient compliance of the provisions of Section 57 of the Act. 18. It is also noteworthy that S. I. Bibhuti Yadav who investigated the case was admittedly a subordinate to the arresting officer. 19. It was also urged that provisions of Section 50 of the Act were not followed by the arresting officer. 18. It is also noteworthy that S. I. Bibhuti Yadav who investigated the case was admittedly a subordinate to the arresting officer. 19. It was also urged that provisions of Section 50 of the Act were not followed by the arresting officer. In my opinion, the provisions of Section 50 of the Act are not attracted as recovery of contraband article was made from the possession of the appellant all of a sudden. There was no prior information to the S. O. that the appellant was carrying any narcotic drugs. However, the cross-examination of the arresting officer on this point goes to show that he is not a reliable witness. A perusal of Fard recovery shows that appellant was given an option to be searched in the presence of a police Gazetted Officer. The arresting officer tried to improve his case in the Court by adding that the appellant was given an option to be searched in the presence of Magistrate also but his own subordinate constable A. B. Mishra demolished the prosecution case on this point. In this view of the matter, I am not prepared to place reliance on the testimony of the arresting officer and constable. 20. From the aforesaid discussion and scrutiny of the evidence it is clear that the prosecution could not establish its case against the appellant beyond all shadow of doubt and the story set up by the prosecution appears to be highly doubtful. I, therefore, hold that this appeal has merits and it must succeed. 21. In the result, the appeal is allowed. The conviction and sentence passed against the appellant are hereby set aside and he is acquitted. He is on bail. His bail bonds are cancelled and sureties are discharged. .