Judgment Indu Prabha Singh, J. 1. All the appeals arise from the same judgment and have been heard together and are being disposed of by this common judgment. 2. Appellants have been convicted under Sec. 21 of the Narcotic Drugs and Psychotropic Substance Act (in short the Act) and have been sentenced to undergo rigorous imprisonment for ten years with a fine of Rs, 1,00,000 and in default of payment of fine he will have further to undergo simple imprisonment for two years. 3. Brief facts leading to the case is that Sheosagar P.S. Case No. 93 of 2001 was registered on the basis of the self statement of SI. Kudartullah on 16.8.2001 at 7 a.m. in the orchard of Jit Narayan Singh stating therein that on the same day at about 6 a.m. ha got a secret information that some ante-social elements used to sell heroin and some persons consume the same in the orchard of Jit Narayan Singh. After getting this information, the informant along with other police party has conducted raid in the orchard. It has been further alleged that after seeing the police party some persons began to flee away who were apprehended with the help of police party and the Chaukidar and the apprehended persons have stated their names as Munna Chaudhary, Lal Bahadur Singh, Sunil Prasad, Narayan Singh, Santosh Kumar Singh, Niranjan Singh, Basudeo Yadav alias Barister Yadav and Ramashray Singh. In presence of independent witnesses, namely, Dhanesh Sah, Suresh Sah and Rameshwar Sah search was made one by one of the accused persons. It has been further alleged that 12 Purias of Hiroin was recovered from the waist of Santosh Kumar Singh, 9 Purias Heroin was recovered from the pocket of Niranjan Singh, 12 Purias Heroin was recovered from the waist of Ramashray Singh (since deceased). Seizure list was prepared. They put their signature over it. It has been further alleged that three apprehended persons Santosh Kumar Singh, Niranjan Singh and Ramashray Singh (since deceased) have stated on interrogation that they were given Heroin by Seth Chaudhary to sell the same and after selling the same they make payment to him. The total weight of seized article was 1 gram 650 miligram. It has been further stated that Sunil Prasad, Munna Chaudhary, Lal Bahadur Singh, Narayan Singh, Basudeo Yadav alias Barister Yadav were sitting to consume the Heroin after purchasing it. The total weight of seized article was 1 gram 650 miligram. It has been further stated that Sunil Prasad, Munna Chaudhary, Lal Bahadur Singh, Narayan Singh, Basudeo Yadav alias Barister Yadav were sitting to consume the Heroin after purchasing it. They were arrested. The police started investigation and thereafter submitted chargesheet against the accused persons. Thereafter cognizance was taken and the case was committed to the session for trial and finally the trial concluded with the result as indicated above. 4. The appellants pleaded not guilty and have stated that they have been falsely implicated in this case due to enmity. 5. To prove its case the prosecution has examined altogether seven witnesses. PW 1 is Md. Ashraf, PW 2 is Din Dayal Pandey, PW 3 is Deonandan Prasad Yadav. PW 4 is Dhanesh Sah. PW 5 is Suresh Sah. PW 6 is Jagdish Prasad and PW 7 is Md. Kudartullah. The prosecution has also exhibited the following . documentsExt. 1 is report of Foreign Science Laboratory in which three paper packets marked as Ext. A, B and C, containing sample of articles of seizure list were sent for examination and after examination Heroin was detected from the packets marked as Ext. A and B. From pack marked as Ext. C no trace of Heroin was detected. Exts. 2 and 2/1 are signature of seizure list. Ext. 3 is fardbeyan. Ext. 4 is seizure list and Ext. 5 is the formal FIR. 6. Md. Ashraf (PW 1) is a member of raiding party and he has stated that on the secret information the Officer Incharge along with the police party went for raid and in the orchard of Jit Narayan Singh some persons were seen, who after seeing the police party began to flee away. They were surrounded by the police and 8 persons were apprehended. He has further stated that he has partly investigated the case and perused the case diary after receiving supervision note, entry was made in the case diary for arrest of Seth Choudhary and search was made. But he has transferred and investigation was handed over to the another Officer Incharge. In cross- examination on behalf of appellant, Niranjan Singh he has stated that he has not seen the article of seizure list during investigation and entry number of article of seizure list have not been mentioned in the case diary. But he has transferred and investigation was handed over to the another Officer Incharge. In cross- examination on behalf of appellant, Niranjan Singh he has stated that he has not seen the article of seizure list during investigation and entry number of article of seizure list have not been mentioned in the case diary. He has further stated that Sheosagar is a Block where Circle Officer and B.D.O. both reside. During the raid, he was inside the boundary. On behalf of the appellant Seth Choudhary he has stated that during his investigation he did not find any evidence against him. On behalf of the rest accused persons he has stated that during the search no Magistrate or Gazetted Officer was present at the spot and no search was made in presence of them. Nothing was asked from the accused persons whether they want that search be made in presence of Magistrate or Gazetted Officer or not. 7. Din Dayal Pandey (PW 2) is a constable and member of police party. According to him the Officer Incharge had ordered to accompany with the police party. He has further stated that names of the police party and Chaukidar was also among the police party and orchard was surrounded from all sides. Some Officers entered into the house and some persons were apprehended inside the house who were consuming Heroin. Thereafter the search was made in presence of two witnesses 32-33 puriyas of Heroin were recovered and accused persons were brought to the police station. He has identified the accused persons on seeing the face. In his cross-examination he has stated that he cannot say the boundary of orchard and he cannot remember that what type of trees were in the orchard. He could not tell the number of jeep and truck accompanied the party. He has denied the suggestion that he was not a member of the police party. 8. PW 3 is Devanandan Prasad Yadav who is also a member of the police party. He has stated that raid was made in the orchard of Jit Narayan Singh and Niranjan Singh, Ramashray Singh, Santosh Singh, Munna Choudhary, Basudeo Singh alias Barister were apprehended. He has denied the suggestion that he was not a member of the police party. 8. PW 3 is Devanandan Prasad Yadav who is also a member of the police party. He has stated that raid was made in the orchard of Jit Narayan Singh and Niranjan Singh, Ramashray Singh, Santosh Singh, Munna Choudhary, Basudeo Singh alias Barister were apprehended. According to him 12 purias of Heroin was recovered from the waist of Santosh, 12 purias of Heroin was recovered from the possession of Ramashray (since deceased), 9 Puriyas of Heroin was recovered from the possession of Niranjan Singh and those persons had stated that they bring the purias of Heroin from Seth Choudhary and used to sell the same. In cross-examination on behalf of appellant Seth Choudhary he has stated that before the police officer he has stated that other accused persons had told that they used to bring the purias of Heroin from Seth Choudhary. He has further stated that confessional statement of any of the accused persons was not recorded in his presence. According to him half an hour after the raid, on the same day search was made in the house of Seth Choudhary but nothing was recovered. He has further stated that his statement was recorded by the I.O. He has further stated that at Sheosagar there is office and residence of both C.O. and B.D.O. He has further stated that at Sheosagar there is office and residence of both CO. and B.D.O. He has further stated that article of seizure iist was weighed and nothing was told to the accused persons during the raid. He has further stated that he cannot say the area and boundary of the place of occurrence. 9. PW 4, Dhanesh Sah is a witness of seizure list. He has identified his signature (Ext. 2) and he has stated that nothing was seized in his presence. He has been declared hostile. 10. PW 5, Suresh Sah is also a seizure list witness who has identified his signature (Ext. 2/1) on the seizure list. He has stated that no search was made in his presence. He has also been declared hostile. 11. PW 6 Jagdish Prasad is SI. who was also a member of the police party and he has stated that the raid was conducted in the orchard of Jit Narayan Singh. 2/1) on the seizure list. He has stated that no search was made in his presence. He has also been declared hostile. 11. PW 6 Jagdish Prasad is SI. who was also a member of the police party and he has stated that the raid was conducted in the orchard of Jit Narayan Singh. He has stated that after taking the investigation from MD. Kudartullah he has recorded the re-statement of the informant, investigated the place of occurrence, handed over the apprehended persons to the police party, recorded the statement of the witnesses of seizure list. He had controverted that signatures of witnesses of seizure list were obtained on blank paper. He has further stated that he identified the accused persons by face but not by name. In his cross-examination he has stated that during investigation he could not learn about any other case against appellant Seth Choudhary. He had not put his signature on the seizure list but he was a member of police party. He has further stated that when the police party arrived at the place of occurrence, 25-30 persons were present there. He had not described about the seized note from the possession of Narayan Singh. He has further stated that he has not recorded the statement of goldsmith where weight of aritcle of seizure list was taken for weighing. He has not recorded the statement of Anchal Guard and Chaukidar. He has further stated that entry number of the article of seizure list kept in malkhana, has not been mentioned in the case diary. He has further stated that within 48 hours the description of arrest and seizure report were not sent to the Superior Officer but superior Officers were informed. He has not sent the article of seizure list to Forensic Science Laboratory. 12. PW 7 Md. Kudartullah is the informant of this case and he has identified his writing and signature on his self statement marked as Ext. 3. He has fully supported his self statement given before the police. Learned counsel appearing on behalf of the appellant, Seth Choudhary has submitted that he was not present in the orchard, that was the place of occurrence and as such he was not arrested by the raiding party. It has been further submitted that Md. 3. He has fully supported his self statement given before the police. Learned counsel appearing on behalf of the appellant, Seth Choudhary has submitted that he was not present in the orchard, that was the place of occurrence and as such he was not arrested by the raiding party. It has been further submitted that Md. Ashraf (PW 1) who was the second 10 has stated in his cross- examination he did not find any evidence against this appellant, even PW 2 has not whisper any thing against him. PW 3 did not name him in his chief-examination. He has simply deposed that packets of Heroin was recovered from the possession of Santosh Singh, Niranjan Singh, Ramashray Singh (since deceased) and they have stated that they brought the Heroin from Seth Choudhary. In paragraph 3 of his deposition he has stated that no confessional statement was recorded from the house of this appellant. It has been further submitted that PW 4 has stated that nothing was seized in his presence. This witness has stated that search was not made in his presence nor seizure list was prepared in his presence. According to him he had signed on plain paper. 13. Learned counsel appearing on behalf of the appellants, Santosh Kumar Singh and Niranjan Singh has submitted that the mandatory provision of Sec. 50 of the Act was not complied with. The seized Heroin was weighed by a person but who, weighed the Heroin, his statement was not recorded. It has been further submitted that from Ext. A which is report of the Forensic Science Laboratory shows that Heroin was detected from sample of Exts. A and B but it was not detected from sample from Ext. C. But there is no evidence of sample marked as Exts. A, B and C actually taken from the material recovered from whose packet. Assuch the prosecution failed to prove that from whose possession packets having Heroin was recovered. It has been further submitted that no information was sent to the Superior Officer even within 24 hours. As such Sec. 57 of the Act has not been complied with. It has been further submitted that no sample of Heroin was made properly before sending it to the Forensic Science Laboratory in presence of witnesses. 14. It has been further submitted that no information was sent to the Superior Officer even within 24 hours. As such Sec. 57 of the Act has not been complied with. It has been further submitted that no sample of Heroin was made properly before sending it to the Forensic Science Laboratory in presence of witnesses. 14. Considering the submissions of the learned counsel on behalf of the appellant Seth Choudhary it appears that none of the witnesses have stated that anything was recovered from his house or conscious possession. One of the witness even has not recognised him in the Court. Even on confessional statement was recorded alleging therein that contraband substance was supplied by the appellant Seth Choudhary. His name figures in the FIR which has been registered on the self statement of the SI. Kudartullah (informant). It is well established principle that only on the statement of the co-accused a person would not be convicted if there are not strong corroborative evidence against him. The point which has been argued by the counsel for the appellant has force in it. The case against this appellant is practically based on no evidence. As such he deserves acquittal giving him benefit of doubt. 15. So far as other appellants, Santosh Kumar Singh and Niranjan Singh are concerned, there is no evidence that they have been asked about their right for personal search in presence of a Magistrate or Gazetted Officer. This provision is mandatory provision and non-compliance of the same vitiates the conviction. It has also been argued that sampling has not been properly done. It has not been mentioned that sample packet which is marked as exts. A, B and C was made from which packet which have been recovered from which of the appellants. It appears that two independent witnesses who put their signature on the seizure list had not supported the case of the prosecution and they have been declared hostile. PW-7 (informant) has not turned up for his cross-examination and 10 was not examined. In this case the provision of Sec. 50 of the Act regarding transparency of search was to be strictly followed so that there cannot be any chance of false implication. Though provision of Sec. 57 of the Act not mandatory but is also provided for a fair handling of a case. In this case the provision of Sec. 50 of the Act regarding transparency of search was to be strictly followed so that there cannot be any chance of false implication. Though provision of Sec. 57 of the Act not mandatory but is also provided for a fair handling of a case. As far as mark of sampling are concerned, it should be done as there should be no chance of any doubt. In the present case extra sample packets were also not prepared. That apart in this case one of the sample (Ext. C) did not contain any Heroin as reported by Forensic Science Laboratory. As such it could not be ascertained that who was having purias as not containing Heroin and one of them was certainly not having it. This fact also goes in favour of the appellants. On the whole it can be said that the case of the prosecution was not handled properly is having lacuna as discussed and the appellants deserve benefit of doubt. Accordingly, they are acquitted from the charges levelled against them. 16. Accordingly, the coviction and sentence passed by the Court below against the appellants is set aside. It has been stated that appellant, Seth Choudhary, is on bail. He is discharged from the liability of his bail bond. It has been further stated that appellants, namely, Santosh Kumar Singh and Niranjan Singh are in custody. They are directed to be released forthwith, if not wanted in any other case. 17. In the result, all the three appeals are allowed.