Judgment Narendra Kumar Jain, J.-Accused appellants Keshav Prasad son of Mangal Singh and Indra Prakash @ Prakash son of Moharpal have preferred this appeal before this Court under Section 374 (1) of the Code of Criminal Procedure (for short, CrPC), challenging their conviction and sentence passed by Additional Sessions Judge No. 1, Deeg, District Bharatpur, in Sessions Case No. 4/2000, whereby the accused appellants were convicted and sentenced under Section 8/20 and 8/28 of the NDPS Act, 1985. 2. PW.2 Vijay Singh Meena, Superintendent, Central Narcotics, received an information from the informer that keshav prasad and Indra Prakash @ Prakash are doing business of charas and they will deliver four kilogram charas on 28 or 211.1999 to one trader in Jurahara. If a raid is conducted then the said charas can be recovered from them. The said information was reduced in writing by him (Exhibit P-3) on 211.1999 at 10.00 AM. He forwarded the said information to the DNC (Unit), Kota. Thereafter he constituted a team to do the needful on the specific date, time and place. Shri Laxman Kataria, Sub Inspector, one of the members of the team saw the scooter No. DL 5 SJ/7877 on 211.1999 at about 3.00 PM. Thereafter he gave a notice to Keshav Prasad as well as Prakash under Section 50 of the NDPS Act, 1985 apprising them about their right to get their search in presence of either Magistrate or an independent Gazetted officer. Both the persons agreed by writing in their own handwriting in the carbon copy of the notice that they are prepared to get themselves searched by Sub Inspector Mr. Laxman Kataria, itself . PW-6 Laxman Kataria made a search from the scooter rider Keshav Prasad and Prakash, who was sitting on the back seat of the scooter alongwith Keshav Prasad. Total six packets were recovered from the custody of accused Indra Prakash @ Prakash. The net weight of charas was found to be 4.00 kg. Two samples of 25 gram each were taken and sealed and remaining 3.950 kg. Charas was sealed seoparately. The statement of accused persons were recorded under Section 67 of the NDPS Act., 1985 twice before and after their arrest. The samples were sent for chemical examination. The net weight of charas was found to be 4.00 kg. Two samples of 25 gram each were taken and sealed and remaining 3.950 kg. Charas was sealed seoparately. The statement of accused persons were recorded under Section 67 of the NDPS Act., 1985 twice before and after their arrest. The samples were sent for chemical examination. The Assistant Chemical Examiner, Government Opium Factory Lab., Neemach, vide his report dated 212.1999 reported that the sample is found by qualitative analysis to be charas within the meaning of NDPS Act, 1985. 3. The prosecution filed criminal complaint in the trial Court under Sections 8/20, 8/28 and 8/29 of the NDPS Act, 1985. The trial Court framed charge against both the accused appellants under Sections 8/20 and 8/28 of the NDPS Act, 1985. The accused persons denied the charge and claimed to be tried. 4. In support of the case of the prosecution examined eight witnesses and produced documentary evidence Exhibit P-1 to Exhibit P-46. Thereafter statement of the accused persons were recorded under Section 313, CrPC, the learned trial Court, after hearing the arguments from both the sides, convicted and sentenced the accused appellants as mentioned above. Being aggrieved with the same the present appeal has been filed before this Court. 5. The learned Counsel for the accused appellants, Mr. Shital Das, contended that the learned trial Court committed a serious illegality in convicting the accused appellants for the above offences whereas in the present case there was violation of mandatory-provisions of Sections 42 and 50 of the NDPS Act, 1985. He contended that the information reduced in writing as per Section 42 of the NDPS Act (Exhibit P-3) was not original and could not have been red in evidence. The said information was not sent to superior officer by Shri V.S. Meena, who recorded it, therefore the compliance of Sub-section (2) of Section 42 of the NDPS Act, 1985 was not made and the same is fatal to the prosecution case. He also referred to the notices given to accused under Section 50 of the NDPS Act. 1985 (Exhibit P-4 and Exhibit P-5) and contended that these notices show that Sub Inspector Laxman Kataria did not mention in these notices that "it is a legal right of the accused" to get their search conducted before the Magistrate or an independent Gazetted officer. 1985 (Exhibit P-4 and Exhibit P-5) and contended that these notices show that Sub Inspector Laxman Kataria did not mention in these notices that "it is a legal right of the accused" to get their search conducted before the Magistrate or an independent Gazetted officer. He contended that the words "legal right" are necessary to be written in the notice. He further contended that the copy of the notice was not supplied to the appellants as there is no reference of any notice in the arrest memo of the accused appellants having been recovered from the custody of accused-persons at the time of their arrest, therefore it should be presumed that it was not given to them. He also contended that FSL report was not produced in the Court during trial and the same was not proved by any of the prosecution witnesses. He has referred the statements of prosecution witnesses including the statement of PW.6 Laxman Kataria who proved the prosecution exhibits upto Exhibit P-45, but FSL report was not included in it. He also referred the statement of accused persons recorded under Section 313, CrPC, and pointed out that no question was put before the accused relating to FSL report. He contended that it is mandatory on the part of the trial Court to put all material evidence and circumstances to the accused while examining him under Section 313, CrPC, He also contended that although six packets were recovered from the custody of the accused Indra Prakash but Exhibit P.6, recovery memo, show that the samples were taken only from one packet, which cannot be said to be representative sample and it creates doubt on the prosecution case. He also referred test memo (Exhibit P.45) and contended that it does not bear the signature of accused and witnesses and column No. 5 specifically states the date of dispatch as 30.11.1999 whereas PW.6 Laxman Kataria has put a date 211.1999 below his signatures whereas in fact it was prepared on 30.11.1999, therefore, this document was prepared subsequently. He also contended that from the prosecution evidence it is clear that seized contraband was not deposited either at Police Station or in property room during the period from 211.1999 to 30.11.1999. PW.5 Rakesh Bhargava has admitted in his statement that same were deposited only on 30.11.1999 and contraband was deposited in Court after two years i.e. on 111.2001. He also contended that from the prosecution evidence it is clear that seized contraband was not deposited either at Police Station or in property room during the period from 211.1999 to 30.11.1999. PW.5 Rakesh Bhargava has admitted in his statement that same were deposited only on 30.11.1999 and contraband was deposited in Court after two years i.e. on 111.2001. He also referred following decisions, 1. Aila @ Aidan vs. State of Rajasthan, 1989 RCC 532. 2. Bal Mukund vs. Central Narcotics Bureau, 2005 (2) EFR 557. 3. Shyam Lal vs. State of Rajasthan, 2005 (1) CrLR 60 (Raj) 6. He also contended that so far as offence under Section 8/28 is concerned the trial Court has committed an illegality in convicting both the accused persons under this section after convicting them for the offence under Section 8/20 of the NDPS Act, 1985. 7. The learned Counsel for the accused appellants lastly contended that although in view of his above contentions, the accused persons are entitled to get the benefit of doubt but in case this Court does not agree with his above submissions, then atleast the case of accused for awarding minimum sentence of imprisonment may be considered. He contended that accused appellant Keshav Prasad has already undergone imprisonment for about three years and two months, and accused appellant Indra Prakash @ Prakash, from whom recovery of contraband was made, for about six years and two months. The quantity of contraband is only 4kg. charas therefore, looking to the quantity of contraband involved in the present case, the punishment of imprisonment of twenty years is very excessive and the same be reduced to minimum sentence of ten years RI prescribed in both the offences. 8. Learned Standing Counsel for the Narcotics Department, Mr. Sushil Sharma, contended that the learned trial Court has considered oral and documentary evidence in detail and thereafter rightly convicted and sentenced the accused appellants. 9. I have considered the rival submissions and examined the impugned Judgment as well as the record of the trial Court. 10. Exhibit P-6, recovery memo prepared by PW. 6 Laxman Kataria, shows that total six packets were recovered in the present case from the possession of Indra Prakash @ Prakash, containing charas, which was weighed and it was found to be 4.100 grams with packing material and net weight was 4.00 kg. 10. Exhibit P-6, recovery memo prepared by PW. 6 Laxman Kataria, shows that total six packets were recovered in the present case from the possession of Indra Prakash @ Prakash, containing charas, which was weighed and it was found to be 4.100 grams with packing material and net weight was 4.00 kg. Two samples of 25 grams each were taken out of it and the same were sent for chemical examination. As per report of the Assistant Chemical Examiner the sample was found to be charas within the meaning of the NDPS Act. 1985. The information Exhibit P.3 is carbon copy but it bears the signature of PW.2 V.S. Meena and also the informer. During the course of examination Shri V.S. Meena has stated that he has not brought the original copy of the information. Exhibit P.3. However I find that Exhibit P.3 is exact carbon copy of the original and it has been proved and Exhibit P.3 was marked on it. Therefore, no prejudice has been caused to the accused appellant in this regard. PW.2 V.S. Meena has also stated orally about information received by him which was reduced in writing. A copy of which is Exhibit P.3. Exhibit P.3 further shows that a copy of it was forwarded to superior officer. 11. In G. Srinivas Goud vs. State of A.P., 2005 CrLJ 4367, the Honble Apex Court has held that when a search was conducted by a Gazetted officer then requirement of sending copy to superior officer is not mandatory. In the present case the information was received by PW.2 V.S. Meena, who was holding the post of Superintendent and was admittedly a Gazetted officer, therefore. in view of the above principles of law laid down by Honble the Apex Court. I do not find any force in the submission of the learned Counsel for the appellants. 12. So far as notice Exhibit P.4 and Exhibit P.5 given to accused persons under Section 50 of the NDPS Act, 1985 are concerned, I find that the accused persons acknowledged the receipt of the notice over it. They have further mentioned in their own handwriting to get themselves examined from Sub Inspector Laxman Kataria. The notice further shows that it was specifically mentioned in it that it is their choice to get themselves examined in presence of Magistrate or independent Gazetted officer. They have further mentioned in their own handwriting to get themselves examined from Sub Inspector Laxman Kataria. The notice further shows that it was specifically mentioned in it that it is their choice to get themselves examined in presence of Magistrate or independent Gazetted officer. In Smt. Krishna Kanwar @ Thakuraeen vs. State of Rajasthan, 2004 (1) Supreme 815 , the Honble Supreme Court held that there is no specific form prescribed and what is necessary for compliance of Section 50 of the NDPS Act, 1985 is that accused should be made aware of existence of his right to be searched in presence of one of the authorized officer named in the section. Since no specific mode or manner is prescribed or intended, the Court has to see the substance and not the form of intimation. whether the requirement of Section 50 of the NDPS Act, 1985 has been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or strait-jacket formula. In view of the above proposition of law in respect of Section 50 of the NDPS Act, 1985 I find that there is no illegality in the notice given to the accused persons under Section 50 of the NDPS Act, 1985 in the present case, therefore, I do not find any force in the contention of the learned Counsel for the accused appellants in this regard also. 13. The fact that copy of the notice was given is admitted by the accused persons in writing which is clear by receipt given by them on Exhibit P-4 and Exhibit P-5, respectively. Exhibit P-6, recovery memo, prepared by PW.6 Laxman Kataria, shows that total six packets were recovered in the present case containing contraband and two samples of 25 gram each were taken. It further shows that samples were taken after mixing the contraband of all the six packets, therefore, it is factually incorrect on the part of the Counsel for the accused appellants to contend that samples were taken only from one packet and the said samples cannot be said to be representative sample. Exhibit P-45 is the test-memo which shows that PW. Exhibit P-45 is the test-memo which shows that PW. 6 Laxman Kataria has put his signature on 211.1999 and date of dispatch has been mentioned as 30.11.1999 but mere putting a date of dispatch 30.11.1999 it cannot be said that this document was prepared subsequently or there is any doubt on it particularly when in the FSL report it was mentioned that seals on the packets were found intact and tallied with seal forwarded. 14. Now I come to the next contention of the learned Counsel for the accused appellants about not putting a question to the accused persons in respect of analysis report on the contraband sample (Exhibit P-46) while examining the accused persons under Section 313, CrPC. It appears from the record that analysis report on the contraband sample dated 212.1999 was not produced by the prosecution during trial till the statement of PW. 6 Laxman Kataria was recorded. PW. 6 Laxman Kataria proved the total exhibits upto Exhibit P-45, test-memo, and he did not prove the analysis report and during his statement this report was not marked as Exhibit P-46. The Counsel for the respondent has read all the statements of the prosecution witnesses and could not point out as to when the said report was exhibited and from whose statement it was proved. It appears that the statements of the accused appellants under Section 313,CrPC, were recorded on 010.2002 and their statements show that no question was put to the accused persons in respect of analysis report dated 212.1999 wherein it was reported that samples was found by qualitative analysis to be charas within the meaning of NDPS Act, 1985. After 010.2002 the case was fixed for defence evidence. The evidence of defence was concluded on 110.2002 and case was fixed for final arguments on 210.2002. Thereafter the case was adjourned for 11.2002 and 11.2002. During course of final arguments of the case on 11.2002 it came to the knowledge of the trial Court that a question about report of public analysts could not be put to the accused under Section 313. CrPC, therefore, he again put two questions to accused Indra Prakash that contraband recovered from his possession was charas. However it does not appear as to how this report was taken on the record and marked as Exhibit P-46. CrPC, therefore, he again put two questions to accused Indra Prakash that contraband recovered from his possession was charas. However it does not appear as to how this report was taken on the record and marked as Exhibit P-46. All the exhibits show the date of marking their exhibit in the Court alongwith signature/initial of the Presiding Officer but Exhibit P-46 shows that no date has been mentioned as to when this document was marked as Exhibit P-46. The learned trial Court did not give any reference of Exhibit P-46 in the statement of accused Indra Prakash recorded under Section 313, CrPC, there is no reference in the order-sheets of the trial Court about putting exhibit on the report of public analysts as Exhibit P-46. In these circumstances it appears that the copy of the public analysts report was not supplied to the accused persons and the same was not produced in the trial Court till the matter was fixed for final arguments and as to when it was exhibited is not known from the record. The date of putting this document as exhibit is also not clear from Exhibit P-46. If this report dated 212.1999 is excluded from the record of the trial Court then it is not established that contraband recovered from the possession of the accused Indra Prakash was charas within the meaning of NDPS Act, 1985. The accused persons did not get proper opportunity in respect of Exhibit P-46. 15. The statement of accused appellant Keshav Prasad recorded under Section 313, CrPC, shows that no question was put to him in this regard. His statement was not recorded again on 11.2002 when statement of accused Indra Prakash was again recorded under Section 313, CrPC, The learned trial Court in its Judgment has referred only Exhibit P.1 to Exhibit P.45 and no reference of Exhibit P-46 has been given. It appears that even if this document was exhibited as Exhibit P-46 but the date or the stage is not available as to when it was exhibited by the Court and whether it was exhibited in presence of accused persons or not. It appears that even if this document was exhibited as Exhibit P-46 but the date or the stage is not available as to when it was exhibited by the Court and whether it was exhibited in presence of accused persons or not. The report of public analysts on the contraband sample is a very important piece of evidence and from the aforesaid discussion based on the record of the trial Court I find that the accused persons did not get an opportunity in respect of public analysts report on the contraband sample Exhibit P-46. It appears from the record that it was not marked exhibit in presence of accused persons and no question was put in this regard to accused Keshav Prasad. 16. So far as accused Indra Prakash is concerned, although a reference of result of report only was given in subsequent statement recorded under Section 313, CrPC, on 11.2002 but neither the exhibit number was given nor the date of report was mentioned in it, therefore, in these circumstances, I find that a substantial right of accused in the present case has been infringed and they are entitled to get the benefit of it. 17. The Honble Supreme Court in Yusuf @ Babu Khan vs. State of Rajasthan, Criminal appeal No. 51 1997, decided on 23.01.2003, considered its earlier Judgment s in Jaidev & Anr. vs. State of Punjab, AIR 1963 SC 612 . Harijan Megha Jesha vs. State of Gujarat, AIR 1979 SC 1566 and State of Maharashtra vs. Sukhdeo Singh & Anr., 1992 CrLJ 3454 , and held as under:- "We have heard learned Counsel and perused the records. We are also satisfied that from the material on record that the material on which the prosecution relies upon i.e. the factum of these appellants being found in the Maruti Van which carried the explosives in question, was not put to these appellants when their statements were recorded under Section 313 of the Code. The question then is whether this omission is fatal to the prosecution case. As could be seen from the Judgment cited on behalf of the appellants referred to hereinabove, it is clear that if the circumstances relied upon by the prosecution are material circumstances, then such omission will be fatal to the prosecution case. The question then is whether this omission is fatal to the prosecution case. As could be seen from the Judgment cited on behalf of the appellants referred to hereinabove, it is clear that if the circumstances relied upon by the prosecution are material circumstances, then such omission will be fatal to the prosecution case. This Court in the case of Jaidev (Supra), while examining the effect of Section 342 of the Code as it stood, held thus: "The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him." In the case of Harijan Megha (Supra), this Court held: "Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant..." In that case, the recovery of a blood stained cloth from the accused which was a material circumstance to establish the charge against the accused was not put to him, therefore, this Court held that the appellant therein could not be convicted of the offence charged against him. In the case of State of Maharashtra vs. Sukhdeo Singh (Supra), this Court held: "It is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances laid on record with a view to giving him an opportunity to offer an explanation if he chooses to do so. Section 313 imposes a heavy duty on the Court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. The words shall question him clearly bring out the mandatory character of the clause and cast an imperative duty on the Court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. From the above, it is clear that it is the mandatory duty of the trial Court to put all such material circumstances on which the prosecution relies to base a conviction to the accused when his statement is recorded under Section 313 of the code............................. From the above, it is clear that it is the mandatory duty of the trial Court to put all such material circumstances on which the prosecution relies to base a conviction to the accused when his statement is recorded under Section 313 of the code............................. We have already noticed the fact that the entire prosecution case is based on the circumstance that these appellants were found in a Maruti Van from which the explosives were seized. If they were not found in the van, there is no other material to connect them with the said explosives, therefore, without the said circumstance it will not be possible for the prosecution to establish the charges against these appellants. Therefore this circumstance becomes so material that the omission of which would go to the root of the prosecution case and benefit of which omission would naturally go to the accused, therefore, any conviction inspite of such omission is per se contrary to the requirement of law, therefore, prejudice is inherent on the fact of the record, hence, there is no need to establish the said prejudice by any other material on record. As stated above, without the said circumstance which is not put to the accused persons there can be no conviction." 18. In view of the above discussion of facts of this case as well settled position of law as laid down by the Honble Supreme Court I find that the trial Court has committed an illegality in convicting and sentencing the accused persons for the above offences. 19. Consequently I allow this appeal and set aside the impugned Judgment passed by the trial Court and acquit the accused appellants. The accused appellants are in judicial custody and they will be released forthwith if their custody is not required in any other case.