Judgment K.S.Chauhan, J. ( 1. ) This criminal appeal has been preferred under Section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment, finding and sentence dated 20.10.1993 passed by the Special Judge, Damoh in Special Case No. 116/92 whereby the appellant has been convicted under Section 20 (b) of Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to R.I. for one year with fine of Rs.1,000/- in default to further undergo S.I. for one month. ( 2. ) The prosecution case in short is that on 30.12.1990 at 5:00 p.m. Shri M.L.Verma, S.H.O., Batiyagarh was on patrolling at village Bakayan where he received an information that the appellant is selling ganja in front of his shop. On this information, he made the raid with witnesses Govind and Teerath and 100 grams of ganja was recovered from his possession vide seizure memo Ex.P/1. Dehati Nalici was written wherein Crime No.0/90 under Section 34 of M.P. Excise Act was registered. The appellant was arrested. After returning therefrom the F.I.R. was written at police station Batiyagarh wherein the Crime No. 166/90 under Section 34 of M.P. Excise Act was registered. The statements of the witnesses were recorded. On 31.12.1990 the seized article Was sent for chemical examination to Excise Inspector, Hata and the query was also made that whether the seized article was ganja or not. G.P.Bagdi (PW-4) examined it and reported that the examined article was cannabis plants and it was giving the smell of bhang. After completing the investigation, the charge sheet was filed before the Special Judge, Panna. ( 3. ) The appellant was charged under Section 20(b) of Narcotic Drugs and Psychotropic Substances Act, 1985 that on 30.12.1990 at 5:10 p.m. at village Bakayan he was found in possession of ganja for selling without any licence. ( 4. ) The appellant abjured the guilt and claimed to be tried mainly contending that he has been falsely implicated. ( 5. ) The prosecution examined as many as 4 witnesses whereas the appellant did not adduce any evidence. After considering the evidence, the trial Court found the charge under Section 20(b) of Narcotic Drugs and Psychotropic Substances Act, 1985 proved against the appellant and sentenced thereunder as stated in para no. 1 of this judgment. ( 5. ) The prosecution examined as many as 4 witnesses whereas the appellant did not adduce any evidence. After considering the evidence, the trial Court found the charge under Section 20(b) of Narcotic Drugs and Psychotropic Substances Act, 1985 proved against the appellant and sentenced thereunder as stated in para no. 1 of this judgment. Being aggrieved by the judgment of the trial Court, the instant appeal has been filed under Section 374(2) of the Code of Criminal Procedure on the grounds mentioned therein. ( 6. ) The learned counsel for the appellant submitted that there is no compliance of Section 42 and Section 50 of the Act. The seized article was not sent for chemical examination to F.S.L., Sagar but was examined by Excise Sub Inspector. It is not evident whether the seized article was ganja, bhang or charas. The seizure witnesses have been turned hostile. The testimony of the Investigating Officer is not above the Board. The finding regarding the guilt is erroneous hence deserves to be set aside and the appellant be acquitted. ( 7. ) On the other hand, Shri S.K.Kashyap, Dy.G.A. appearing on behalf of the respondent-State has supported the judgment, finding and sentence passed by the trial Court contending that no any question was put to M.L.Verma (PW-3) regarding the seizure. G.P. Bagdi (PW-4) is a trained Excise Sub Inspector who can very well identify the ganja. The prosecution has proved the case beyond reasonable doubt against the appellant and. he has been rightly convicted by the trial Court hence does not call for any interference. ( 8. ) The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellant under Section 20(b) of Narcotic Drugs and Psychotropic Substances Act, 1985? ( 9. ) I have perused the entire case and evidence recorded therein. ( 10. ) M.L.Verma (PW-3) has stated that he was on patrolling at village Bakayan where he received the information that the appellant is selling ganja in front of his shop, therefore, he went there alongwith the witnesses and seized 100 grams ganja from the possession of the appellant vide seizure memo Ex.P/1. It clearly indicates that after receiving the information he proceeded on to the spot. But, it appears that he has not complied with the provision of Section 42(2) of N.D.P.S. Act. ( 11. It clearly indicates that after receiving the information he proceeded on to the spot. But, it appears that he has not complied with the provision of Section 42(2) of N.D.P.S. Act. ( 11. ) Section 42(2) of the Act runs as follows: "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 within seventy-two hours send a copy thereof to his immediate official superior." ( 12. ) He has not deposed even a single word regarding the compliance of the provisions of this Section. ( 13. ) In the case of Rajamma v. State of Kerala, 2001 Cri LJ 1572 it has been held that: "Section 42(2) of the NDPS Act provides that 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." ( 14. ) In the case of K. Venkatesham v. State of A.P., 2000 Cri LJ 3156, it has been held that: "Recording of information given by a person, in writing, or recording the grounds of his belief from the personal knowledge are mandatory requirements in case of search between sunset and sunrise and failure to comply this requirement, vitiates the entire trial." ( 15. ) M.L.Verma (PW-3) nowhere has deposed that he complied with the provisions of Section 50 of the Act. ( 16. ) The provisions of the Section 50 of the Act runs as follows : "50. Candidates under which search of persons shall be conducted- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) , (5), (6).........." ( 17. (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) , (5), (6).........." ( 17. ) In the case of State of Punjab v. Balbir Singh, AIR 1994 SC 1872 , the Apex Court has held that: "Valuable right. - Obligation of an authorized officer to inform the person concerned of his right is a valuable right given to the persons to be searched in the presence of a Gazetted Officer or a Magistrate if he so desires, since such a search would impact much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to accused." ( 18. ) Since ganja is said to have been seized from the personal search of the appellant, therefore, it was mandatory to comply with the provisions of Section 50 of the Act which has not been complied with. ( 19. ) There is no any evidence that M.L.Verma (PW-3) sent any report to his official superior within 40 hours, therefore, Section 57 of the act also has not been complied with. ( 20. ) It appears that M.L.Verma (PW-3) himself was not aware with the provisions of this Act because he registered the offence under Section 34 of M.P. Excise Act, investigated and filed the charge sheet but it appears that in scrutiny the Section was converted from 34 Excise Act to Section 17 of the N.D.P.S. Act. On this basis, the trial of the appellant was conducted under N.D.P.S. Act. ( 21. ) It is evident that no procedure required for this Act has been followed by Investigating Officer and strangely enough the learned Special Judge also did not pay attention towards it. ( 22. ) The seizure witnesses Govind (PW-1) and Teerath (PW-2) both have turned hostile and have not supported seizure of ganja from the possession of the appellant. Thus, the independent witnesses have not supported the version of Shri M.L.Verma (PW-3). ( 23. ) M.L.Verma (PW-3) has deposed that on 31.12.1990 the seized ganja was sent to Excise Inspector, Hata for examination vide Ex.P/7. G.P.Bagdi (PW-4) has also stated that such packet received for examination wherein the bhang and stock and leaves of bhang which is also known as ganja were found. There was the smelling of bhang. ( 23. ) M.L.Verma (PW-3) has deposed that on 31.12.1990 the seized ganja was sent to Excise Inspector, Hata for examination vide Ex.P/7. G.P.Bagdi (PW-4) has also stated that such packet received for examination wherein the bhang and stock and leaves of bhang which is also known as ganja were found. There was the smelling of bhang. After examination he sealed the packet and returned to the same constable who brought for examination. The examination report is Ex.P/ 7 which contains his signature. ( 24. ) He has admitted in cross examination that on the query of police he wrote that the seized article was ganja. It is not clear from the evidence of the G.P.Bagdi, Excise Inspector whether the Seized article was ganja or bhang. The report is not crystal clear. ( 25. ) According to Section 2(iii) of the Act "cannabis (hemp)" means "(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish; (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; and (c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;" ( 26. ) According to Section 2(iv) of the Act "cannabis plant" means any plant of the genus cannabis. ( 27. ) Cannabis (hemp), and cannabis plant are two different contraband under NDPS Act. Bhang, Sidhi Patti or cannabis sativa consists of dried leaves and fruiting shoots whereas ganja has rusty green colour and a characteristic odour and consists of flowering or fruiting tops of the female plant quoted with resin." ( 28. ) Bhang does not fall within the definition of cannabis (hemp) under the NDPS Act yet it does fall within the definition of cannabis plant. ( 29. ) It is evident that no chemical examination was done of the seized article. ( 30. ) In the case of Pili Dilli v. State, 1995 (1) Crimes 858 , it has been held that: "In the absence of chemical examination merely on the basis of oral statement of the Excise Inspector it can not be held that the seized article was ganja." ( 31. ( 30. ) In the case of Pili Dilli v. State, 1995 (1) Crimes 858 , it has been held that: "In the absence of chemical examination merely on the basis of oral statement of the Excise Inspector it can not be held that the seized article was ganja." ( 31. ) In the case of Subash Suna v. State, 1997, Cri LJ 1324 (Ori), it has been held that: "In a case, ganja recovery sample was not sent for chemical examination but statement of Excise Sub-Inspector regarding nature of contraband from colour, flavour and departmental experience was made. Since, there was non-compliance of mandatory provision regarding chemical examination, conviction and sentence was not sustainable." ( 32. ) The seized article was not chemically examined and hence in absence of this it is not established that the seized article was ganja. ( 33. ) On appraisal of entire evidence adduced in the case, it can very well be. said that Shri M.L.Verma (PW-3) did not follow the mandatory provisions as required under the Act. The sample was not chemically examined. The independent witnesses have not corroborated the prosecution story. It was not safe to convict the appellant on the sole basis of the statement of M.L.Verma (PW-3) who has not followed the mandatory provisions of the Act, therefore, the finding of guilt as recorded by the trial Court is erroneous hence set aside. His conviction is bad in law hence sentence is also set aside. 34 Consequently, the appeal is allowed. The judgment of conviction and sentence passed by the trial court are hereby set aside. The appellant is acquitted from the charge levelled against him. He is on bail. His bail bonds are discharged. Appeal allowed. RAHUL