P. S. NARAYANA, J. ( 1 ) MANKENA Rangaiah-sole accused in S. C. No. 42 of 1997, on the file of additional Sessions Judge, Khammam, aggrieved by the conviction and sentence imposed on him under Section 8 (b) read with Section 20 (a) (1) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act for the purpose of convenience), preferred the present criminal appeal. ( 2 ) SRI Prabhakar Reddy, learned counsel representing appellant-accused would submit that the evidence of P. Ws. 1, 2 and 3 would go to show that what had been collected was just ganja leaves, but what is disclosed in Ex. P. 4 is something different and hence, whether the same leaves, which had been collected and seized had been sent to the Chemical Examiner or not, itself is doubtful. The learned Counsel also would submit that though there is no dispute relating to the ownership of the land in Sy. No. l13/aa, it is highly doubtful whether the ganja was seized from the field, in the absence of any independent evidence, except the evidence of P. Ws. l, 2 and 3. Though it is the version of the prosecution that panchas were present, no panch witness had been examined. Even in this view of the matter and on the strength of the interested testimony of P. Ws. l to 3, conviction cannot be sustained. The learned Counsel also would submit that the village Administrative Officer, who is one of the panch witnesses, would be the best. ( 3 ) PER contra, the learned Additional public Prosecutor would submit that it is no doubt true that the provisions of Section 42 of the Act are mandatory and are to be strictly complied with. But, here is a case where P. W. 1-Mandal Revenue Officer, had gone along with P. Ws. 2 and 3 and P. Ws. 2 and 3 had identified the leaves as ganja and the same were sent to Chemical Analyst. The report of the analyst is positive and there is no dispute relating to the ownership of the land. Hence, the prosecution proved the case beyond all reasonable doubt as against appellant-accused and hence, the conviction and sentence to be sustained. ( 4 ) HEARD, both the Counsel. ( 5 ) INSPECTOR of Excise, Khammam, filed charge-sheet in Cr. The report of the analyst is positive and there is no dispute relating to the ownership of the land. Hence, the prosecution proved the case beyond all reasonable doubt as against appellant-accused and hence, the conviction and sentence to be sustained. ( 4 ) HEARD, both the Counsel. ( 5 ) INSPECTOR of Excise, Khammam, filed charge-sheet in Cr. No. 467 of 1996-97 against appellant-accused under Section 8 (b) read with Section 20 (a) (l) of the Act, stating that he was cultivating in his land in Sy. No. 113/aa ganja alone with mirchi. The case of the prosecution is that on 26-1-1997, on information that the accused had raised ganja plants in his mirchi garden in Sy. No. l 13/aa at M. Venkatayapalem, the Inspector of Excise along with Sub-Inspector, Mandal Revenue Inspector, mandal Revenue Officer and two panch witnesses proceeded to the mirchi garden of the accused and it is stated that the mandal Revenue Officer identified the land. The total extent of the land is 4 acres and they found ganja plants in the mirchi garden and they collected some leaves from the ganja plants and on smelling, confirmed that they are ganja plants and at the relevant point of time they noticed that those plants were at the height of 4 to 5 feet. Immediately, Excise Officials removed the plants numbering 653 and some leaves were collected, placed in paper covers, sealed and identification labels were affixed. Subsequently, ganja plants were destroyed and samples were seized under the cover of panchanama and after returning to the station a case was registered against appellant-accused and samples were sent for analysis and the Chemical Examiner opined that the sample is ganja. Hence, the appellant-accused was charged with the aforesaid offence. ( 6 ) IN view of the fact that accused pleaded not guilty, evidence of P. Ws. l to 3 was recorded, Exs. P. 1 to P. 4 were marked and on appreciation of the evidence available on record, the learned Judge found the accused guilty of the offence charged with and sentenced him to suffer rigorous imprisonment for three years and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for a period of 9 months. Hence, this criminal appeal is filed. ( 7 ) P. W. 1-MANDAL Revenue Officer, khammam, deposed that on 26-1-1997 at about 10. 5,000/-, in default, to suffer rigorous imprisonment for a period of 9 months. Hence, this criminal appeal is filed. ( 7 ) P. W. 1-MANDAL Revenue Officer, khammam, deposed that on 26-1-1997 at about 10. 00 a. m. , on a telephone message, he along with Inspector of Excise, Sub-Inspector of Excise, Village Administrative officer, and the staff proceeded to the fields in Sy. No. l 13/aa belonging to the accused in M. Venkatayapalem Village and they found that there was chilli crop in the land and along with that crop there were ganja plants also. The Excise Officials on test of leaves and by smell confirmed that the plants were ganja plants and there were 656 plants in the land. The Excise Officials collected the sample leaves, removed the plants and destroyed them. The sample leaves were placed in packets, sealed and sezed them as per the procedure prescribed by law under the cover of panchanama attested by him (P. W. I), Mandal Revenue inspector and Village Administrative Officer. He also issued a true copy of the pahani to Excise Officials. Ex. P. 2 is the pahani, which shows that the land is in the name of the accused. The accused was not present in the field. This witness no doubt, denied certain suggestions. ( 8 ) P. W. 2-SUB-INSPECTOR of Excise, khammam deposed that on 26-1-1997 this witness along with P. W. 1 Inspector of Excise, khammam, the Revenue Inspector Rural, village Administrative Officer and staff visited M. Venkayapalem Village, reached sy. No. 113/aa of the accused, found chilli crop in the land. On verification, they found 653 ganja plants in the said land. The accused was not present in the field and they lifted two samples of the ganja leaves, sealed them, removed the plants and seized the samples under the cover of ex. P. 1 panchanama after affixing identification slip to the samples. Then returned back to the Station and registered Ex. P. 1 as a case in Cr. No. 467 of 1996-97 and issued ex. P. 3 F. I. R. The Inspector had taken up further investigation. This witness in cross-examination deposed that they filed the report received from the Revenue Inspector before the Court and this witness also denied the suggestions. ( 9 ) P. W. 3-PROHIBITION and Excise inspector also deposed just on the lines as p. W. 2. P. 3 F. I. R. The Inspector had taken up further investigation. This witness in cross-examination deposed that they filed the report received from the Revenue Inspector before the Court and this witness also denied the suggestions. ( 9 ) P. W. 3-PROHIBITION and Excise inspector also deposed just on the lines as p. W. 2. This witness also deposed about further details of investigation. This witness had sent the samples to Chemical Examiner. Ex. P. 4 is the report received from Chemical examiner. After completion of investigation, he filed charge-sheet. This witness deposed in his cross-examination that he did not file the information received by phone as well as by way of report trom SDPO into court. This witness further deposed that he informed his superiors before conducting the raid, and as per therir instructions he organized the raid. He also deposed that along with them the Revenue Officials brought their records and he did not mention the same in the charge-sheet and it is true that he had obtained a copy of the pahani after the raid and he did not record any statement from the neighbouring land owners. This witness also denied certain suggestions. ( 10 ) ON the strength of this evidence, findings had been recorded by the learned judge. On careful scrutiny of the evidence of P. Ws. 1, 2 and 3 which would go to show that the Excise Officials P. Ws. 2 and 3 on test and on smell of the leaves, came to the conclusion that they were ganja plants, collected leaves and placed them in packets for sending the same to Chemical examiner. P. W. 1- Mandal Revenue Officer deposed that about 656 plants were there in the land, whereas, P. Ws. 2 and 3 deposed that they found 653 ganja plants. Ex. P. 4 shows that the sample is ganja and it also specifies"a dry green leafy substance containing seeds stalks and having characteristic odor in a brown paper cover weighing 40 grams. " ( 11 ) IN the light of evidence of P. Ws. l to 3, and what had been specified in Ex. P. 4, submissions at length were made that it is doubtful whether the same leaves said to have been collected from the field of appellant-accused had been sent for analysis or not, inasmuch as the description of the samples vary. l to 3, and what had been specified in Ex. P. 4, submissions at length were made that it is doubtful whether the same leaves said to have been collected from the field of appellant-accused had been sent for analysis or not, inasmuch as the description of the samples vary. Apart from this aspect of the matter, a finding was recorded by the learned Judge that there cannot be any doubt about Ex. P. 1-panchanama since the Mandal Revenue Officer is a responsible officer and hence, non-examination of other independent panch witnesses would not alter the situation. It is pertinent to note that the Village Administrative Officer would be in touch with the affairs of the village. The Village Administrative Officer, though accompanied, had not been examined and it is stated that appellant-accused was not present at the field at all and there is some discrepancy relating to the number of plants on the land in between the testimony of P. W. I and P. Ws. 2 and 3 on the other hand. ( 12 ) SECTION 2 of the Act, deals with definitions. Section 2 (iii) of the Act specifies "cannabis (hemp)" means (iii) (b) ganja, that is, the flowering or fruiting tops of the Cannabis plant (excluding the seeds and leaves when not accompanied by the tops) by whatever name they may be known or designated. ( 13 ) IN the light of the evidence of p. Ws. 2 and 3 and also Ex. P. 4, the learned counsel representing the appellant-accused, advanced submissions at length. Not only there are some variations in between Ex. P. 4 and the evidence of P. Ws. 2 and 3, but also in the light of the evidence of P. Ws. 2 and 3, the description of ganja as defined under Section 2 (iii) (b) of the Act, definitely had not been satisfied. Apart from this aspect of the matter, the Counsel also would submit that the search and seizure was not conducted in accordance with section 42 (2) of the Act and at any rate, the provisions of Sections 42, 50 and 57 of the Act had been violated. ( 14 ) RELIANCE was placed on Beckodan abdul Rahiman v. State of Kerala, 2002 (1) ald (Crl.) 952 (SC) = 2002 Crl. ( 14 ) RELIANCE was placed on Beckodan abdul Rahiman v. State of Kerala, 2002 (1) ald (Crl.) 952 (SC) = 2002 Crl. LJ 2529, wherein the Apex Court held that for conducting search and seizure under the Act, the safeguards provided in provisions of sections 42 and 50, compliance thereto, were held to be mandatory. ( 15 ) A careful scrutiny of the evidence of P. Ws. 2 and 3 would definitely go to show that the mandatory provisions specified supra had not been complied with. It is no doubt true that these witnesses had neither deposed anything nor there is any cross- examination in this regard. When the prosecution was unable to produce positive evidence relating to the compliance of the mandatory provisions, there is no duty cast upon the accused as such, to put such questions seeking further clarification filling up such lacunae in the version of the prosecution. ( 16 ) HENCE, in view of the fundamental principles of criminal jurisprudence, this court is of considered opinion that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt and hence, the findings recorded by the learned Judge cannot be sustained and accordingly, they are hereby set aside. ( 17 ) THE criminal appeal is allowed. Bail bonds shall stand cancelled. The appellant-accused is entitled to the refund of fine amount, if any paid by him.