S. S. KULSHRESTHA, J. This appeal has been brought against the judgment and order dated 7-10-1999 passed by special Judge/iv Addl. Sessions Judge, Ghazipur in Crl. Case No. 206/97 whereby convicting the appellant for the offence under Section 8/21 of the Narcotic Drugs and Psychotropic Substance Act (the Act) and sentencing him to 10 years rigorous imprisonment and a fine of Rs. 1,00,000 and further in default of the payment of the fine, 2 years rigorous imprisonment was also awarded. It is said that the learned Special Judge has not properly appreciated the materials on record to arrive at the conclusion. Further the mandatory provisions as contained under Sections 42 (1) and (2) of the Act have not been adhered to and no information was taken down in writing by the empowered officer nor it was sent to immediate senior officer. Further the entire search was concocted there at the police station. No public witness was collected nor search of the accused appellant or his family members was made by the raiding party. Recovery memo as such is also said to be fabricated when admittedly as per the prosecution version seven persons out of eighteen persons raided the house of the accused appellant whereas the recovery memo bears the signatures of 15 persons, which would render its preparation not at the place of search but elsewhere. Further the recovered material was unduly kept by the PW 3 in violation of the procedure provided under Section 52 of the Act. The material evidence was also not produced by the prosecution. 2. In order to facilitate the disposal of this appeal a brief resume of the facts may be made. Sri R. S. Yadav, PW 3 who was at the relevant time posted as Inspector of Central Bureau of Narcotic Preventive Cell at Ghazipur (CBNP Cell) searched the house of one Sri Surya Nath Maurya on 10-7-1997 in Village Bahariabad under P. S. Bahariabad, Ghazipur. He recovered contraband substance (heroin) from the possession of Sri Surya Nath Maurya who in his statement made the disclosure that contraband narcotic substance (heroin) was supplied to him by one Sri Babu Lal Thakur (who is herein the appellant ). On such information after second day i. e. on 12-7-1997 Inspector Sri R. S. Yadav organized a raid at the house of Sri Babu Lal Thakur. On such information after second day i. e. on 12-7-1997 Inspector Sri R. S. Yadav organized a raid at the house of Sri Babu Lal Thakur. The raiding party was consisted of three Inspectors of CBNP Cell namely S/sri (i) O. P. Verma, (ii) OP. Gupta, (iii) Jamuna Ram and two CBNP Cell Constables S/sri (i) Shiv Shanker Singh, (ii) Kamlakar Pandey and one Jeep Driver Sri V. N. Gupta. They contacted Sri Bhullan Yadav, S. H. O. , P. S. Suhwal and also apprised them about their intended mission. S. H. O. Suhwal and five constables also joined the raiding party for the purpose. At about 12. 15 p. m. the members of the raiding party surrounded the house of the appellant and they after taking all necessary precautions and verifying that no body is keeping any contraband, Sri Babu Lal Yadav, accused appellant was called from his house who agreed to have the search of his house effected and himself called independent public witnesses namely S/sri Shiv Poojan Yadav and Ambika Prasad Paswan. Out of the raiding party seven persons namely S/sri R. S. Yadav and Jamuna Ram (Inspectors), Constables S/sri Shiv Shankar and Kamlakar Pandey from CBNP Cell, Sri Bullan Yadav, S. H. O. P. S. Suihwal and public witnesses S/sri Shiv Poojan Yadav and Ambika Prasad Paswan entered into the house of the accused appellant. In the presence of the raiding party Sri Babu Lal himself had taken out a yellow plastic packet from an earthen jar wherein some rice was also kept and also handed over that packet to Sri R. S. Yadav, Inspector. This yellow packet contained heroin weighing 62 gm. Inspector Sri R. S. Yadav then at the spot took two samples (each 5 gm in weight) from that yellow packet and kept the sample in two separate plastic packets. The remaining contraband substance was kept in third packet. All the packets were duly sealed and the Inspector also got the signatures of the witnesses in whose presence they were sealed. A recovery memo was also prepared and it was also read to the witnesses who have also signed it. Signature of Sri Babu Lal Thakur was also taken on that recovery memo. All the packets were duly sealed and the Inspector also got the signatures of the witnesses in whose presence they were sealed. A recovery memo was also prepared and it was also read to the witnesses who have also signed it. Signature of Sri Babu Lal Thakur was also taken on that recovery memo. However, Sri R. S. Yadav, Inspector was not having his own seal and so the seal from Inspector Sri O. P. Verma, one of the members of the raiding party was borrowed for that purpose. After completing necessary formalities the accused was taken into custody and the case was also registered against him. The accused appellant was produced before the Chief Judicial Magistrate by Inspector Sri R. S. Yadav on 13-7-1997 and on that very day the Courts order was also obtained for keeping the heroin and the packets in the double lock maintained at CBNP Cell, Ghazipur. The permission was accorded and the accused appellant was sent to the judicial custody. The investigation of the case was made by Sri Hari Ram (PW 5), Inspector CBNP Cell, Ghazipur. He collected necessary documents and also recorded the statements of witnesses and also obtained the chemical examiners report confirming the substance to be heroin and after investigation the complaint was filed before the Court below. 3. In support of the contention the prosecution examined Sri Jamshed Ali, a constable from CBNP Cell, Ghazipur who is said to have collected the sealed packet of heroin samples alongwith the necessary letter and documents from Sri P. K. Mukherjee, the then Superintendent of CBN Cell, Ghazipur and carried the same for chemical analysis to Government Opium Factory at Neemuch in Madhya Pradesh. PW 2 Sri Kamlakar Pandey, Constable in CBNP Cell was the member of the raiding party and was also present in the house when the search was made. PW 3 Sri R. S. Yadav, Inspector was the leader of the party, stated all with regard to the information received by him and after fulfilling the necessary formalities raid was arranged by him. The search was also documented. PW 4 Sri O. P. Verma another Inspector of CBNP Cell, Ghazipur had not gone inside the house alongwith other persons of the raiding party but his seal was used by Sri R. S. Yadav, Inspector. Lastly Sri Hari Ram, Inspector of CBNP Cell, Ghazipur was also examined by the prosecution. The search was also documented. PW 4 Sri O. P. Verma another Inspector of CBNP Cell, Ghazipur had not gone inside the house alongwith other persons of the raiding party but his seal was used by Sri R. S. Yadav, Inspector. Lastly Sri Hari Ram, Inspector of CBNP Cell, Ghazipur was also examined by the prosecution. 4. In his statement under Section 313 of the Code of Criminal Procedure (which is herein after referred to as the Code) Sri Babu Lal Thakur made it clear that since he is engaged in the barbers profession, some dispute in the village on account of non-increase of remuneration in cash and kind had arisen and on that count he and his other family members made it clear that they would no longer do barbering work at the residences of the Yadav community. Sri Vishwa Nath Yadave is village Pradhan and so in connivance with the Inspector of Police this entire dramatic search was arranged. The leader of CBNP Cell is also Yadav and he used to visit his place. He was the main person in fabricating this case. 5. In his defence Sri Trijugi Nath Rai and Sri Seth Nath @ Shesh Nath were examined. They made the disclosure that the police officer went to the extent of demanding Rs. 20,000 towards fine for their non- co-operative attitude with the people of Yadav community. 6. The learned trial Court on the basis of the evidence and materials adduced by the prosecution came to the conclusion that the provisions of Sections 42 (1) and (2) and 52-A of the Act have been complied with by sending the statement of Sri Surya Nath Maurya to the senior officer of the CBNP Cell by Sri R. S. Yadav, Inspector. There was further no need for having recorded the information afresh and to have sent the same to the senior officer. Further it was also held that the members of the searching party have given clear description with regard to the search and their testimony cannot be said to be doubtful. Further in the matter of the search of the house there was no need for ensuring the compliance of Section 50 of the Act. Further it was also held that the members of the searching party have given clear description with regard to the search and their testimony cannot be said to be doubtful. Further in the matter of the search of the house there was no need for ensuring the compliance of Section 50 of the Act. It was also concluded that since the recovery memo bears the signatures of all the seven members of the raiding party who went inside the house and further the signatures of the other members of the raiding party, who remained outside, would not materially effect the merits of the case because they were the members of the raiding party. 7. Sri D. S. Mishra, learned Counsel for the appellant in the support of the points raised in appeal, presented the case from very many angles, bringing to the notice of Court a volume of case law, some of which we have referred hereinafter. The first and foremost point raised by the learned Counsel for the accused appellant is that in compliance of the provisions of Sections 42 (1) and (2) of the Act, which has the mandatory import has not been complied by the complainant and the non-compliance of such provisions would vitiate the trial of the accused. In that regard the statement of P. W. 3 Sri Ram Surat Yadav, Inspector, CBNP Cell, Ghazipur who also happens to be the recovery officer, has been referred. He raided the house of one Sri Surya Nath Maurya in village Bahariabad on 10-7-1997 and recovered narcotic substance (heroin) from his house. His statement (Exhibit Ka-5) was also recorded on 10-7-1997 under Section 67 of the Act wherein he clarified that contraband substance was supplied to him by one Sri Babu Lal Thakur resident of village Bahariabad. On the basis of such information Sri R. S. Yadav and other officials arranged raid at the house of the accused appellant on 12-7-1997 at 11. 00 a. m. This information given by Sri Surya Nath Maurya was recorded by P. W. 3 Sri R. S. Yadav but there is nothing on record to show that such information was forthwith sent by him to his superior officer as was required under Section 42 (2) of the Act. 00 a. m. This information given by Sri Surya Nath Maurya was recorded by P. W. 3 Sri R. S. Yadav but there is nothing on record to show that such information was forthwith sent by him to his superior officer as was required under Section 42 (2) of the Act. To consider the contention about the applicability of Section 42 (2) where arrest, search and seizure is made by an empowered Gazetted Officer, it is necessary to analyse Section 42 of the NDPS Act which reads as under: "42. To consider the contention about the applicability of Section 42 (2) where arrest, search and seizure is made by an empowered Gazetted Officer, it is necessary to analyse Section 42 of the NDPS Act which reads as under: "42. Power of entry, search, seizure and arrest without warrant or authorisation.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the Revenue, Drugs Control, Excise, Police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset, - (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. " Section 42 enables certain officers duly empowered in this behalf by the Central or State Government, as the case may be, to enter into and search any building, conveyance or enclosed place for the purpose mentioned therein without any warrant or authorization. Section 42 deals with "building, conveyance or enclosed place" whereas Section 43 deals with power of seizure and arrest in public place. Under Section (1) of Section 42 the method to be adopted and the procedure to be followed have been laid down. If the concerned officer has reason to believe from personal knowledge, or information given by any person and has taken down in writing, that any narcotic drugs or substance in respect of which and offence punishable under Chapter IV of the Act has been committed or any other articles which may furnish evidence of the commission of such offence is kept or concealed in any "building or conveyance or enclosed place" he may between sunrise and sunset, do the acts enumerated in Clauses (a), (b), (c) and (d) of sub-section (1 ). 8. From the arrangement made in the aforementioned section it is clear that where any such officer as envisaged in Section 42 (1) has reason to believe from information given by any person that a narcotic substance is kept or concealed in any building, conveyance or enclosed place he is firstly required to record it in writing and secondly to transmit a copy of the same forthwith. [now 72 hours under the Act as amended by Narcotic Drugs and Psychotropic Substances (Amendment) Act ). However, learned Counsel for the CBNP Cell urged that the information regarding the seizure of narcotic substance from Sri Surya Nath Maurya and his statement recorded under Section 67 of the Act was communicated to the superior officer, there was no necessity to record it again. P. W. 3 Sri Ram Surat Yadav or any other witness has nowhere deposed that he has complied with the procedure as provided under Section 42 (1) and proviso to Sections 42 (1) and (2) before he conducted the search. P. W. 3 Sri Ram Surat Yadav or any other witness has nowhere deposed that he has complied with the procedure as provided under Section 42 (1) and proviso to Sections 42 (1) and (2) before he conducted the search. From the evidence adduced by the prosecution (P. W. 3 Sri Ram Surat Yadav) this much is clear that after recording the statement of Sri Surya Nath Maurya on 10-7-1997 he did not send either memo or copy of such recovery information to the officer superior to him in CBNP Cell, Ghazipur nor sought any search warrant from Magistrate. Now at the stage of argument to assert that the recovery so made from Sri Surya Nath Maurya a third person and his statements were intimated to the superior officer. This appears to be the compliance of the provisions of the Act in respect of Sri Surya Nath Maurya for which he was facing trial (case No. 202/99) whatever the evidence led in that case cannot be read in evidence in this case unless specifically narrated that such information about the concealment of the narcotic substance by the accused Sri Babu Lal Thakur in his house recorded in writing and sent to superior officer. There is clear violation of the provisions of Section 42 (2) of the Act. This view finds support from the decision given in the case of State of Punjab v. Balbir Singh, 1995 (1) JIC 382 (SC) : AIR 1994 SC 1872 , wherein it was held that: "under Section 42 (1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. , he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42 (1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. , he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42 (1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. " Identical matter came up for scrutiny in the case of State of Punjab v. Baldev Singh, 1999 (2) JIC 421 (SC) : AIR 1999 SC 2378 , wherein Constitutional Bench of the Apex Court observed in paragraphs 9 and 10 as under: "sub-section (1) of Section 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc. , he may carry out the arrest or search, without a warrant between sunrise and sunset, and he may do so without recording his reasons of belief. The proviso to sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure. Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful. " Much significance was given to the statutory provisions as contained under Section 42 (1) and Section 42 (2) of the Act and they were held to be mandatory in nature, keeping in view the stringent punishment prescribed in the Act. It was also observed by the Apex Court in the case of Union of India & Ors. v. L. D. Balam Singh, 2002 (2) JIC 131 (SC) : 2002 (2) Crimes 220, that "these provisions contain certain safeguards and the law reports are replete with the case law pertaining to these safeguards. Deduction of the safeguards as prescribed in the statute has been criticized and negated and the same were ascribed to be strictly mandatory". Emphasis was also given by the Apex Court that recording of the information and the ground of belief since would be the earliest version that will be available to a Court of law and the accused while defending his case. Failure to comply those statutory provisions would render the entire prosecutions case suspect and cause prejudice to the accused. 9. In the cases of Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000 (2) JIC 67 (SC) : (2000) 2 SCC 513 ; Koluttumottil Razak v. State of Kerala, (2000) 4 SCC 465 ; Beckodan Abdul Rahman v. State of Kerala, 2002 (2) JIC 157 (SC) : (2002) 4 SCC 229 , and in the case of Chhunna alias Mehtab v. State of M. P. , (2002) 9 SCC 363, Apex Court has held that for the non-compliance of the provisions of the proviso to Section 42 of the Act which is mandatory, the action was held illegal and the conviction of the accused was set aside. This Court also held that the onus to prove compliance lies on the prosecution and in the absence of any prosecution evidence about the compliance with the mandatory procedure, the presumption would be that the procedure was not complied with. This Court also held that the onus to prove compliance lies on the prosecution and in the absence of any prosecution evidence about the compliance with the mandatory procedure, the presumption would be that the procedure was not complied with. As has already been observed that before making search at the house of Sri Babu Lal Thakur no information was given to the higher officer. No witness has stated about the compliance of the provisions of Sections 42 (1) and 42 (2) of the Act. Reliance has also been placed by the learned Counsel for the accused appellant in the cases of (i) Mohinder Kumar v. State of Panji Goa, 1999 SCC (Crl.) 89 (para 3), (ii) Roy V. D. v. State of Kerala, 2001 SCC (Crl.) 42 and (iii) Union of India v. L. D. Balam, 2002 (2) Crimes 320. From the perusal of these cases it is clear that the punishment for the offences falling under this Act are stringent and so strict compliance of the provisions is required. In the case of Gurmej Singh v. Inspector Customs, 1999 (2) E. F. R. 5 (para 8), the Apex Court has also gone to the extent of saying that even if there is huge recovery of the narcotic substance, that recovery would also vitiate in the event of non- compliance of the provisions of Section 42 of the Act. Reliance was also placed on the case of Kingsley v. State of Rajasthan, 1996 (2) E. F. R. 611 (para 9 ). Merely because information with regard to the recovery made at the house of Sri Surya Nath Maurya would not be deemed to be the compliance of the provisions of Section 42 of the Act. 10. It is next contended that no search or recovery was made from the house of Sri Babu Lal Thakur and the entire case was fabricated there at the police station because of the annoyance of Sri Vishwa Nath Yadav, Village Pradhan, who is the main person behind this false case because the accused appellant had denied for rendering the service of barber at the house of Yadav community as they did not revise the wages/remuneration. The S. H. O. of the concerned police station and P. W. 3 Sri Ram Surat Yadav belong to the same community and with a view to harass this false case has been planted against the accused appellant. The S. H. O. of the concerned police station and P. W. 3 Sri Ram Surat Yadav belong to the same community and with a view to harass this false case has been planted against the accused appellant. Otherwise there was no occasion for their having satisfied with a small recovery without making search of the house. Even that recovery, which has been assigned in the written report, was virtually no recovery. Only this much has been mentioned in the report that the accused appellant voluntarily handed over that small quantity of narcotic substance after taking out from a jar in a small Pudia. It is further said that when the raiding party consisting eighteen persons raided at the house of the accused appellant, they remained confined in one room and that too effected the recovery merely by handing over of the small Pudia by the accused appellant. This would itself create doubt with regard to the prosecution version. In that context it is also said that the houses of Sri Babu Lal Thakur or any one of his family at other places were not searched and so that would also create suspicion about the recovery effected. 11. It is further said that the independent witnesses have not been taken by the raiding party. Reliance has also been placed in the cases of (i) Bahadur Singh v. State of M. P. , 2002 (1) JIC 216 (SC) : 2002 (44) ACC 1049, (II) Bholaram Kushwaha v. State of M. P. , 2001 (1) JIC 277 (SC) : 2001 SCC (Crl.) 1, (iii) Koluttumottil Razak v. State of Kerala (2000) 4 SCC 465 , (iv) Inder Singh v. State of Haryana, 1999 (2) E. F. R. 404, (v) Nadeem v. State of Rajasthan, 1998 (2) E. F. R. 632, (vi) State of Punjab v. Bhola Singh, 1999 (1) E. F. R. 212 and (vii) Munna v. State of U. P. , 2002 (2) E. F. R. 388. So far as taking of the independent witness is concerned, it is the prosecution case that the raid party raided at the house of Sri Babu Lal Thakur. Seeing the raiding party some persons also gathered at the house of Sri Babu Lal Thakur. At the pointing out of Sri Babu Lal Thakur two public witnesses namely S/sri Shiv Poojan Yadav and Ambika Prasad Paswan were taken. Seeing the raiding party some persons also gathered at the house of Sri Babu Lal Thakur. At the pointing out of Sri Babu Lal Thakur two public witnesses namely S/sri Shiv Poojan Yadav and Ambika Prasad Paswan were taken. This was also stated by P. W. 3 Sri Ram Syurat Yadav in his 0 statement on oath. But non-examination of any of these public witnesses would not be a ground to disbelieve the testimony of the police or departmental witnesses. Reliance may also be placed in the principle of law laid down by the Apex Court in the case of Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra, (1995) 4 SCC 255 , wherein it was held that "prudence dictates that evidence of police witnesses need to be subjected to strict scrutiny, it was also observed that their evidence cannot be discarded merely on the ground that they belong to police force and are either interested in the investigating or prosecuting agency, but as far as possible, corroboration of their evidence in material particularly should be sought". 12. It has further been argued that the recovery memo would itself create doubt that as many as seven person entered into the house but including the signature of the accused appellant and two public witnesses there ought to be 9 signatures only but the recovery memo is showing as many as 15 signatures. However, an explanation was given by the P. W. 3 that since other persons were also the members of the raiding party though they did not enter into the room but they have also put their signatures. The making of the signatures of the persons who were according to the prosecution were not there inside the room, would itself show that these signatures were taken after recovery. P. W. Inspector Sri O. P. Verma has also made it clear in his statement that seizure of the heroin had already taken place when he entered into the room. So such recovery memo itself is doubtful about the presence of some of the signatories of the memo. 13. In view of the aforesaid discussions I am of the view that the prosecution has not complied the provisions as contained under Sections 42 (1) and (2) of the Act, which have the mandatory import. Such non-compliance would render the search and the entire proceedings illegal. 13. In view of the aforesaid discussions I am of the view that the prosecution has not complied the provisions as contained under Sections 42 (1) and (2) of the Act, which have the mandatory import. Such non-compliance would render the search and the entire proceedings illegal. In the result, appeal succeeds and the impugned judgment and order are set aside. Accused appellant is acquitted for the offences under Section 8/21 of the Narcotic Drugs and Psychotropic Substance Act. 14. Let the accused appellant be released forthwith. Appeal allowed. .