MUKTESHWAR PRASAD, J. Appellant Ram Autar, son of Achchey Lal, was fried in the Court of Additional Sessions Judge, Banda for committing an offence punishable under Section 8 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the act ). He was found guilty under Section 20 of the Act and was sentenced to suffer rigorous imprisonment for a period of four years and to pay a fine of Rs. 1,000. In default, he was directed to undergo rigorous imprisonment for a period of four months. 2. The prosecution case, in brief is that on 15-5-1992, S. O. Ashok Kumar Singh accompanied by four constables of P. S. Girwan (Banda) was searching the accused wanted in case Crime No. 83/92, under Sections 364/302 IPC P. S. Girwan, District Banda. At about 2. 00 p. m. the police party reached village Bansi. The S. O. received information through Mukhbir that accused Ram Autar had cultivated cannabis (Ganja) in his courtyard inside his house situate in village Prempur. Believing the information to be correct, the S. O. alongwith all the constables and the Mukhbir rushed to the house of the accused and found him uprooting cannabis plants and collecting them. At the pointing out of Mukhbir, Ram Autar was apprehended by the police force at about 3. 00 p. m. in the same courtyard. 3. On enquiry, he disclosed his name and address and on demand failed to produce any licence or permit for cultivating Ganja. After disclosing the grounds of arrest, he was formally arrested. There were 22 Ganja plants in all weighing about 18 kgs. All plants were taken into custody, kept in a bag and a sample was taken out and kept in a cloth. The sample and the bag containing Ganja plants were sealed on the spot and a sample of seal was also prepared. A seizure memo was prepared on the spot. A number of witnesses were present during arrest and seizure but on account of being co-villager, they were not prepared to help the police and none was willing to sign the seizure memo. After preparing fard the S. O. signed the same and obtained signature of the constables also. A copy of seizure memo was given to the accused. 4. After arrest and seizure, accused Ram Autar was brought to the police station alongwith recovered Ganja plants. After preparing fard the S. O. signed the same and obtained signature of the constables also. A copy of seizure memo was given to the accused. 4. After arrest and seizure, accused Ram Autar was brought to the police station alongwith recovered Ganja plants. The recovered Ganja was deposited in the Malkhana. On the basis of seizure memo a case was registered of Crime No. 42 by P. W. 4 Har Narain. He made entry in the G. D. also. 5. The case was investigated by S. I. Jabar Singh, who was incharge of police outpost Kurhan. During investigation, the sample of Ganja was sent to Forensic Science Laboratory, Agra and after chemical examination the sample was found to be cannabis sativa. After completing investigation, the I. O. submitted charge-sheet against the accused. 6. Accused Ram Autar was charged under Section 20 of the Act on 9-9-1997. He pleaded not guilty and claimed to be tried. 7. In order to prove the guilt of the accused, the prosecution examined P. W. 1 Ashok Kumar Singh, the arresting officer, who proved the seizure memo FIR and entry in the G. D. He further proved recovered Ganja plants as well as sample. P. W. 2 Constable Ashok Singh had accompanied the S. O. on the impugned date and is a witness of fact. P. W. 3 Constable Chhote Lal took the sample to Session Court at Banda and after obtaining docket went to Agra for chemical examination on 28-5-1992 and reached there on 29- 5-1992 and P. W. 4 H. C. Har Naran proved Chik report and entry in the G. D. He proved site plan and charge-sheet also. 8. Accused Ram Autar denied all accusations levelled against him in his statement recorded under Section 313 Cr. P. C. and pleaded his false implication by the police on account of his enmity with village Pradhan Girdhari. The defence version is that the local police apprehended him in the night of 14-5-1992 and nothing was recovered from his possession. He added that village Pradhan had good rapport with the local police and as such, he was falsely implicated. He examined his co-villager Shiv Das Singh as D. W. 1. 9. After evaluation of the entire evidence on record led by the parties, learned Judge found the accused guilty and convicted and sentenced him, as mentioned above. Hence this appeal. 10. He examined his co-villager Shiv Das Singh as D. W. 1. 9. After evaluation of the entire evidence on record led by the parties, learned Judge found the accused guilty and convicted and sentenced him, as mentioned above. Hence this appeal. 10. I have heard Sri Dinesh Rai, learned amicus curiae for the appellant learned A. G. A. and have gone through the record also. 11. Learned amicus curiae for the appellant has assailed the judgment under appeal mainly on the grounds that correct timing of the arrest and seizure has not been mentioned in the charge and sample taken out by the arresting officer was actually not sent to Agra for chemical examination. It was further urged that a number of villagers had assembled of the time of arrest and seizure. However, no public witness was examined on behalf of the prosecution. There has been no compliance of provisions of Sections 47 and 57 of the Act. It was also submitted for the I. O. was not examined for the reasons best known to the prosecution and the appellant is entitled to be acquitted. 12. Reliance was placed on a decision of the apex Court in Alakh Ram v. State of U. P. , 2004 (48) ACC 522 and Chandan Singh and another v. State of U. P. , 2003 (1) JIC 683 (All) : 2003 (46) ACC 797. 13. On the other hand, learned A. G. A. has supported the judgment and has contended that house was in exclusive possession of the appellant and the trial Judge rightly found him guilty. 14. After having given my anxious consideration to all submissions made on behalf of the parties, considering the decisions relied upon by the appellant and the material on record. I hold that this appeal has merits and it must succeed. P. W. 1 Ashok Kumar Singh and P. W. 2 Constable Ashok Singh stated in clear words that on the impugned date they left the police station at about 11. 45 a. m. for investigation of case Crime No. 83/92 and they reached village Bansi at about 2. I hold that this appeal has merits and it must succeed. P. W. 1 Ashok Kumar Singh and P. W. 2 Constable Ashok Singh stated in clear words that on the impugned date they left the police station at about 11. 45 a. m. for investigation of case Crime No. 83/92 and they reached village Bansi at about 2. 00 p. m. The Mukhbir intimated to the arresting officer that the appellant had grown Ganja in the courtyard of his house situate in village Prempur and thereafter the police party reached the appellants house and succeeded in apprehending him and recovering 22 plants of Ganja from his angan at about 3. 00 p. m. It is, therefore, clear from perusal of the testimony of the arresting officer as well as constable Ashok Singh that arresting officer had prior information that the appellant had cultivated cannabis (Ganja) in his angan and after receiving this information, the S. O. reached there and took action. Section 42 (1) provides that when information was given to empowered officer, he is required to take down the information in writing. Sub-section (2) further requires that where an officer takes down any information in writing, he shall forthwith send a copy thereof to his immediate official superior. In the instant case, there is no iota of evidence on record that information received by the arresting officer was reduced into writing and copy thereof was sent to the superior official. In other words, there has been no compliance of provisions of Section 42 of the Act, which are mandatory in nature. It is noteworthy that the alleged recovery of Ganja plants was made from the angan of the appellant at about 3. 00 p. m. 15. Both arresting officer and constable Ashok Singh were cross- examined at length but they did not succeed in the test of cross- examination. It transpires from perusal of the seizure memo as well as testimony of the arresting officer that Mukhbir accompanied the police party up to the scene of the incident, identified the appellant as well as his house and thereafter, the arrest and seizure were made. Contrary to this, constable Ashok Singh deposed in unambiguous words in cross-examination that Mukhbir had not accompanied the police party upto the house of the appellant. Contrary to this, constable Ashok Singh deposed in unambiguous words in cross-examination that Mukhbir had not accompanied the police party upto the house of the appellant. His statement on this point is reproduced below for proper appreciation : "mukhbir HAM LONGO KE SATH MULJIM KE GHAR TAK NAHIN GAYA THA". 16. Thus, I find material contradiction in the evidence of two witnesses. P. W. 1 S. I. Ashok Kumar Singh testified that when the Mukhbir pointed out towards the appellant, he was uprooting Ganja trees. On the other hand, constable Ashok Singh contradicted the arresting officer on this point and gave out that when the police party entered into the house of the appellant they found the appellant storing Ganja plants in the south-west corner of angan and he had uprooted all Ganja plants. 17. As noted above, the incident took place in broad-day light at about 3. 00 p. m. A perusal of the fard recovery further shows that a number of villagers had assembled there during arrest and seizure of Ganja plants. However, no villager came forward to witness the arrest and seizure and sign the seizure memo. This part of the prosecution version and statement of arresting officer and the constable on this point do not inspire confidence and cannot be accepted. First of all, Section 47 of the Act cast a duty on every panch, sarpanch and village Pardhan to give immediate information to the police that any land in his village has been illegally cultivated with the opium poppy, cannabis plant or coca plant and in case they neglect to give such information they are liable to be punished. In the present case, the arresting officer who was Station Officer also could call the village Pradhan, Up Pradhan or members of the Gaon Sabha to witness the arrest and seizure but this was not done by him for the reasons best known to him. 18. According to Section 51 of the Act the provisions of Cr. P. C. are applicable in so far as they are not inconsistent with the provisions of this Act to all warrants issued and arrests, searches and seizures made under this Act. Section 100 (4) Cr. 18. According to Section 51 of the Act the provisions of Cr. P. C. are applicable in so far as they are not inconsistent with the provisions of this Act to all warrants issued and arrests, searches and seizures made under this Act. Section 100 (4) Cr. P. C. provides that before making a search, the officer about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate and search shall be made in their presence. Sub-section (8) further provides that any person who without reasonable cause,refuses or neglects to attend and witness a search, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 of the Penal Code. In the present case, even the names of the villagers who refused to witness the arrest and seizure have not been mentioned in the seizure memo nor were disclosed in the Court when deposition of the witnesses were recorded. 19. P. W. 3 constable Chhote Lal testified that on 27-5-1992 he took the sample to the Court at Banda, obtained a docket for taking the sample to Forensic Science Laboratory and handed over the sample at Agra on 29-5-1992. According to the prosecution case, the sample was sealed by the arresting officer who was station officer also. I find from perusal of the report of the chemical examiner that there was a monogram of H. C. Giriraj Singh UPP and weight of the sample was about 55 grams. and not 100 grams. as claimed by the arresting officer. Thus, I find a major lacuna in the prosecution evidence and it appears that the sample taken out by the S. O. on the spot was not sent to Agra for chemical examination. How the sample had monogram of H. C. Giriraj Singh was not explained by the prosecution. 20. I further find that provisions of Section 57 of the Act were not complied with. The testimony of the arresting officer is totally silent on this point. 21. The I. O. of the case was not produced in the witness box. How the sample had monogram of H. C. Giriraj Singh was not explained by the prosecution. 20. I further find that provisions of Section 57 of the Act were not complied with. The testimony of the arresting officer is totally silent on this point. 21. The I. O. of the case was not produced in the witness box. Moreover, it has come in the evidence on record that first parcha of case diary was written by the arresting officer himself on 15- 5-1992 who recorded statement of P. W. 4 Har Narain as well as appellant. Further S. I. Jabar Singh who took over investigation was a subordinate of the arresting officer. 22. It was held by the apex Court in Alakh Rams case (supra) that in order to prove the guilt, it must be proved that the accused had cultivated this prohibited plant. There must be supporting evidence to prove that the accused cultivated the plant and it is not enough that few plants were found in the property of the accused. It is quite reasonable to assume that sometimes the plants may sprout up, if seeds happened to be embedded in earth due to natural process. If plants are sprouted by natural growth, it cannot be said that it amounts to cultivation. Having regard to the number of plants recovered from the angan of the appellant, it cannot be said that these plants had been the result of cultivation. 23. D. W. 1 Shiv Das Singh testified that he was Up-Pradhan of the village. According to him on 14-5-1992 at about 9. 00 p. m. the local police reached his village and took the appellant to the police station. He and others had assembled there at that time. 24. In view of the aforesaid discussion and scrutiny of the evidence on record I conclude that the learned Judge erred in evaluation of the evidence led by the prosecution and failed to arrive at correct conclusion. He ignored important aspects of the case and lacuna in the evidence led by the prosecution. Consequently, I hold that the appellant is entitled to be acquitted. 25. In the result, the appeal is allowed. The conviction and sentence passed against the appellant are hereby set aside. He is in jail. He shall be set at liberty forthwith, if he is not wanted in any other case. 26. Consequently, I hold that the appellant is entitled to be acquitted. 25. In the result, the appeal is allowed. The conviction and sentence passed against the appellant are hereby set aside. He is in jail. He shall be set at liberty forthwith, if he is not wanted in any other case. 26. Sri Dinesh Rai who was appointed amicus curiae shall get his fee for two days at the rate of Rs. 1,000 per day. Appeal allowed. .