JUDGMENT 1. - This appeal has been filed by accused-Sanwta Ram against the judgment and order dated 11.12.2002 passed by learned Special Judge, N.D.P.S. Act Cases, Jodhpur whereby the appellant has been found guilty for the offence punishable under Section 8/18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'N.D.P.S. Act') and has been awarded rigorous imprisonment of ten years' and a fine of Rs. 1 lacs, in default of payment of fine, to further undergo one year's rigorous imprisonment. 2. The prosecution story, in nutshell, is to the effect that on 5.7.2000, S.H.O., Police Station Dechu, District Jodhpur (Rural) Rajuram (PW-2) along with police-party had gone in search of accused in connection with C.R. No. 68/2000 Bhalu Kumaniya and Ketu Manavata. While the S.H.O. was returning back to Police Station on Government jeep along with driver-Om Prakash and police-party, in the night at 11.00 P.M., the S.H.O. noticed a Hero Honda motor cycle No. DD-034-4149 near the way of village 'Lodta Achalawata' coming from 'Nathdau', which was signaled to stop but the motor-cycle rider instead of stopping, speeded up towards 'Chomu', upon which the motor cycle rider was chased for about half a kilometer and he was made to stop. On making enquiry, the motor:cycle rider disclosed his name as Sanwta Ram S/o Hansraj, by caste Bishnoi, resident of Village Lodta Achalawata. On the search of the motorcycle being made, from its 'dickey' a plastic bag containing blackish liquid substance styled to be Opium milk weighing 5.200 kgs was recovered. As per the prosecution case, the accused was not having any licence or permit to transport such a huge quantity of Opium milk nor the rider of the said motor-cycle was having appears in relation to said vehicle, as such, he was arrested and a case for the offence under Sections 8/17 and 8/18 of the N.D.P.S. Act was registered against him vide F.I.R. No. 85/2000 (Ex.P/9). The motor cycle was also seized. On interrogation, the accused disclosed that he brought the said Opium milk from Sukhram Kichad Bishnoi, resident of Lohawat . Rs. 8000/- per kilogram. After carrying usual investigations, police filed charge-sheet against the present appellant and charge under Section 8/18 of N.D.P.S. Act was framed and read over to him, to which he pleaded not guilty and claimed trial. 3. The accused was put to trial. Rs. 8000/- per kilogram. After carrying usual investigations, police filed charge-sheet against the present appellant and charge under Section 8/18 of N.D.P.S. Act was framed and read over to him, to which he pleaded not guilty and claimed trial. 3. The accused was put to trial. During trial, prosecution examined as many as thirteen witnesses, namely, PW-1 Mangi Lal, PW-2 Raju Ram, PW-3 Mul Ram, PW-4 Panna Ram, PW-5 Balwant Singh, PW-6 Om Prakash, PW-7 Tarachand, PW-8 Sumer Singh, PW-9 Khet Singh, PW-10 Simartha Ram, PW-11 Bhawani Singh, PW-12 Daulat Singh and PW-13 Durg Singh in support of its case and got exhibited documents viz., Ex.P/1 to Ex.P/19. The accused-appellant in his statement recorded under Section 313 Cr.P.C. denied the correctness of the prosecution evidence appearing against him and stated that he is innocent and has been falsely implicated in his case. Nothing has been recovered from him. As a matter of fact, the motor-cycle does not belong to him and is that of Gumana Ram, which had been left behind by Gumana Ram near 'fanta' due to some mechanical problem. In defence, the accused examined two witnesses, namely, DW-1 Rewant Singh and DW-2 Haridas and got exhibited police statements of PW-2 Raju Ram and PW-11 Bhawani Singh as Ex.D/1 and Ex.D/2 respectively. 4. At the conclusion of the trial, after hearing the parties, the learned Single Judge, N.D.P.S. Act Cases, Jodhpur vide his judgment and order dated 11.12.2002 found the case of prosecution proved against the appellant and proceeded to convict and sentence the appellant-Sanwta Ram, as mentioned above. Being aggrieved by the aforesaid judgment, this appeal has been preferred by the accused-appellant. 5. I have heard learned counsel for the appellant as well as the learned Public Prosecutor for the State and have carefully gone through the record of the case. 6. During the course of arguments learned counsel for the accused-appellant challenged the findings of guilt given by learned trial Court and stated the learned trial Court has not properly appreciated and considered the material available on record and has given an erroneous conclusion, that is not sustainable and is liable to be quashed and set aside. 6. During the course of arguments learned counsel for the accused-appellant challenged the findings of guilt given by learned trial Court and stated the learned trial Court has not properly appreciated and considered the material available on record and has given an erroneous conclusion, that is not sustainable and is liable to be quashed and set aside. The learned counsel contended that in the present case, the prosecution has not complied with the mandatory provisions like Section 42 of N.D.P.S. Act and its non-compliance alone vitiates the whole prosecution case but the learned trial Court has not given due attention to this aspect of the matter. It was argued that from the statements of witnesses, it is revealed that the S.H.O. was having prior information of alleged opium before leaving the Police Station but intentionally he had neither written nor he had forwarded the information to the police officer superior as per provision Section 42(2) prevailing at that time i.e. before amendment. It was also submitted that the story of prosecution regarding search of accused of Case No. 68/2000 and taking stock of law and order situation is concocted one. As per the prosecution story, admittedly the search was made at 11 O' Clock in the night and the alleged contraband opium milk was found inside the 'dickey' of the motor-cycle and motor-cycle comes within the definition of 'conveyance'. It was contended that in case of search of such conveyance, which was not a 'public vehicle' specifically between the period of sunset to sunrise, grounds for belief was required to be written down and further were required to be sent forthwith to higher police officer as provided in Section 42 (2) of N.D.P.S. Act. It was further contended that even in a case of accidental search of house, conveyance or enclosed place specially during night, it was incumbent upon the police officials to prepare and send report of grounds for his belief as provided under Section 42(2) of the said Act, failing which, it would be fatal to the whole prosecution case for non-compliance of mandatory provision. It was submitted that the reply of S.H.O.-cum-Search Officer (PW-2) in this respect during his statement is that it was not necessary to write down the grounds of belief, is totally irresponsible and against the basic provisions of law. It was submitted that the reply of S.H.O.-cum-Search Officer (PW-2) in this respect during his statement is that it was not necessary to write down the grounds of belief, is totally irresponsible and against the basic provisions of law. That was stated to be a clear cut violation of Section 42(1) proviso of N.D.P.S. Act. Learned counsel for the appellant in support of his contention has placed reliance on the decision rendered in the case of Mohinder Kumar v. State of Panaji, Goa, reported in AIR 1995 SC 1157 and stated that in this case it was held that even in a case of search of house during patrolling duty on suspicion, the grounds of belief are required to be recorded and report thereof was required to be sent to senior police officer. He has also relied on Paramjit Singh v. Union of India, 2000 Cr LJ 100 ; Bhikem Singh v. State of Rajasthan, EFR 2002 (1) 417 ; State of Punjab v. Balbir Singh, 1994 Cr LR (SC) 241 and Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000 Cr LJ 1348 . 7. On the basis of the above submissions, it was submitted that the findings of learned trial Court in this respect is not in accordance with law and it was prayed that without going into latches, the accused-appellant is entitled to get the benefit of this non-compliance of the mandatory provisions of N.D.P.S. Act. It was further contended that in the present case, the prosecution has failed to produce and prove the complete link evidence, which makes the prosecution story doubtful and gives reason to believe that the recovery of opium had not been made in the manner, as stated by the prosecution. It was urged that there is material contradictions in the statements of witnesses and the other evidence produced in trial court. As per the recovery memo (Ex.P/2), sample of 30 Grams were taken, packed and kept in iron box and sealed on the spot but as per the FSL Report (Ex.P/19) the weight of sample was found to be 18.523 Grams. It was contended that in this way there was material variation in the weight, that has next been explained by the prosecution, which casts doubt that the sample has been tampered with. It was contended that in this way there was material variation in the weight, that has next been explained by the prosecution, which casts doubt that the sample has been tampered with. It was contended that PW-4 Panna Ram and PW-13 Durg Singh stated that the samples were packed in polythene bags. It was also contended that there is contradiction in the statements of witnesses with respect to use of seal at the time of sealing. In is revealed from record that neither the personal seal of S.H.O. was used nor the used seal was destroyed nor was it given to any independent witness. Hie seal of the Police Station was used, therefore, the possibility of tampering with the seal cannot be ruled out specifically when there is no independent witness of recovery but the witnesses arc the police personnel's working under the S.H.O. at the same police station. It was also contended that neither the specimen of seal was deposited in 'Malkhana' nor the samples were re-sealed as per relevant provision Section 55 of N.D.P.S. Act at the time of depositing in 'Malkhana' nor entry of handing over of sample for depositing it in FSL was made in the Malkhana Register, therefore, the prosecution has not been able prove that the sample remained intact and in the self-same condition till it reached FSL by strong and reliable evidence but the learned trial Court has not considered these aspects with deep sense. It was also contended that variance in weight is material, that again created doubts in prosecution story. Thus, complete link. evidence has not been produced and proved and the accused is entitled to benefit of doubt. In support of his contention learned counsel placed reliance on the decisions of (1) Rajesh Jagdamba Avasthi v. State of Gao (SC), Criminal Appeal No. 1148 of 1999 decided on 3.11.2004 , (2) Ayub v. State of Rajasthan, 2002 Cr LJ (Raj.) 1619 , (3) Salag Ram v. State of Rajasthan, 2002 Cr LJ (Raj.) 1707 , (4) Sushil Sharam v. State of Rajasthan, 2000 Cr LR (Raj.) 549 , (5) State of Rajasthan v. Sanzvat Singh @ Guttu Singh, 2001 (1) RCD 135 and (6) Om Prakash v. State of Rajasthan, S.B. Criminal Appeal No. 21/2002 decided on 28.11.2006 . It was also contended by the learned counsel for the appellant that the alleged opium was not recovered from the conscious possession of the accused-appellant. Prosecution witness PW-1 Panna Ram stated that key of motor-cycle was taken by PW-2 Raju Singh but that key along with the motorcycle had not been deposited in the 'Malkhana'. Learned counsel further urged that no independent witness was called upon at the time of the alleged search though as per the statement of witnesses the place was near school premises and shops, therefore, independent witnesses could be made available but no efforts were made to call independent witnesses. No proper explanation in this respect has been given by the Search Officer. On the contrary search was allegedly made in nigh and gas-light facility has been arranged from nearby persons, thus the independent witnesses could be made available, therefore, the alleged search is not free from doubts. In this respect the defence story suggested by the accused and the defence evidence produced in this regard are believable and as per that the alleged opium was not recovered from the accused as stated by the prosecution. In support of contention, learned counsel fro the appellant placed reliance on the decisions of (1) Koluttumottil Razak v. State of Kerala, 2000 (10) SRJ 477 , (2) Sudan & Ors. v. State of Rajasthan, 2002 CRCJ 1707 and (3) Bhagwan Singh v. Union of India, 2004 (2) R Cr D 323 (Raj.) . On the basis of the above submissions, it was prayed that the appeal may kindly be allowed, the judgment and order under appeal may be set aside and the accused be acquitted of the charges leveled against him. 8. On the contrary, the learned Public Prosecutor has supported the judgment and findings. It was submitted that the prosecution has been able to prove the legal formalities provided under the Act by placing complete material it was also submitted that Section 42 was not applicable as it was chance recovery and there was no prior information in that respect. The charges leveled against the accused-appellant are proved beyond doubts by oral and documentary evidence. It was further contended by the learned Public Prosecutor that there was no enmity of police with the accused nor he had been falsely implicated. The charges leveled against the accused-appellant are proved beyond doubts by oral and documentary evidence. It was further contended by the learned Public Prosecutor that there was no enmity of police with the accused nor he had been falsely implicated. The contraband opium was found in his possession, out of that, samples were taken out in presence of 'motbirs' witnesses, may be those were the police officials but since the search took place in night, as such, no independent witnesses could be arranged but contraband opium milk was found and sealed on the spot. The sample remained intact till that was deposited in Forensic Science Laboratory and on analysis that was found to be opium. The prosecution has placed complete link evidence before the trial Court. The learned trial Court has rightly held the accused guilty, findings of learned Court below are based on sound reasoning's and that should be maintained and the appeal may be dismissed. 9. I have considered the rival contentions raised by the parties and have gone through the findings and conclusion drawn thereon by the learned trial Court. I have also perused the authorities cited by the learned counsel for the appellant. 10. Before adverting the evidence and contentions, it would be proper to scan in brief the evidence produced by the prosecution to prove its case: PW-1 Mangi Lal (ASI) and PW-3 Mool Ram (Constable) are the police officials. They stated hat as the incident was of late night and no independent witness could be procured, therefore, they were kept as motbir witnesses. They further stated that they were present at the time of search, participated in search proceedings carried out by S.H.O., Raju Ram and signed on notice given to the accused under Section 50 (Ex.P-l), seizure memo of opium milk (Ex.P-2), arrest memo of accused (Ex.P-3), site-plan (Ex.P-4), seizure memo of motor-cycle (Ex.P-5) and consent- for acting as motbirs (Ex.P-6) as witnesses. They supported the search proceeding, as stated by PW-2 Raju Ram. PW-2 Raju Ram stated that on 5.7.2000 he was posted as S.H.O., P.S. Dechu. They supported the search proceeding, as stated by PW-2 Raju Ram. PW-2 Raju Ram stated that on 5.7.2000 he was posted as S.H.O., P.S. Dechu. On that day in connection with official duty and search of accused of case No. 68/2000, he alongwith ASI-Mangi Lal (PW-1), Constables Mool Ram (PW-3), Panna Ram (PW-4), Babu Lal, Durg Singh (PW-13) were going in Government jeep No. RJ-19C-2733 and while they were returning back to the Police Station in the night at around 11 O'clock and reached near 'Lodha Fanta' at 'Achalawata', he saw a motorcycle coming from village Nathdau', which was signaled to stop. The motorcycle rider instead of stopping the motorcycle speeded towards Chomu village. On having suspicion, the motorcycle was chased for about half a kilometer and it was made to stop. The rider disclosed his name as Sanwta, Ram S/o Haru Ram. On the search of motorcycle being made, a liquid substance packed in polythene bag, which on being smelt and tested, was found to be opium milk was recovered from 'dickey' of motorcycle. Sanwta Ram was not having any licence or permit for carrying contraband article. Further, the accused stated that he purchased the said opium milk from one Sukh Ram Bishnoi @ Rs. 8,000/- per Kg. Since it being the time of night, no independent 'motbir' witnesses could be made available, therefore, ASI-Mangi Lal and Constable-Mula Ram were chosen after obtaining their consent vide (Ex.P-6) as 'motbirs' and in their presence opium milk was seized, which on weighing, was found to be 5 Kg. and 200 grams. The accused was given notice under Section 50 of N.D.P.S. Act and was made aware of his right of being searched in presence of nearest Magistrate or Gazetted Officer or by the concerned S.H.O. It is further stated that the accused-appellant gave his consent to be searched by S.H.O. Furd in relation to obtaining the consent of accused is Ex.P-1 was prepared. Thereafter, furd search and recovery (Ex.P-2), Furd arrest (Ex.P-3), site plan (Ex.P-4) and furd of seizure of motorcycle (Ex.P-5) were prepared. In cross-examination this witness stated that he had suspicion regarding the accused carrying contraband articles. The witness admitted that except Ex.P-1, no notice was given to the accused and further stated before initiating search and recovery, no proceeding under Section 42(2) was carried out and no report was forwarded to the immediate superior police officer. In cross-examination this witness stated that he had suspicion regarding the accused carrying contraband articles. The witness admitted that except Ex.P-1, no notice was given to the accused and further stated before initiating search and recovery, no proceeding under Section 42(2) was carried out and no report was forwarded to the immediate superior police officer. He has deposed that the sealed packets were deposited in 'Malkhana' of the police station and a case under N.D.P.S. Act was registered vide F.I.R. No. 85/2000 (Ex.P-9) and the investigation was handed over to the Mangi Lal (PW-2) ASI. He further stated that he sent a letter to the Superintendent of Police (Ex:P-18) for forwarding the sample of contraband opium milk for analysis to Forensic Science Laboratory.PW-4 Panna Ram and PW-13 Durg Singh are the police constables. They accompanied the police-party and stated that they were present at the time of carrying search proceedings. They have narrated the facts on the same line as that of PW-2 Raju Ram. They stated that the motor-cycle was stopped under the suspicion of having Contraband, as indicated by PW-2 Raju Ram.PW-5 Balwant Singh stated that on 5.7.2000 he was the Malkhana Incharge of P.S., Dechu. In the night at 11.30 P.M. he received wireless message from S.H.O., Raju Ram regarding recovery of opium milk from one Sanwta Ram and that required investigation box, seal, weight and scale etc., upon which he sent the same with the driver of Police Station, namely, Om Prakash on his personal motorcycle. He further stated that at night, S.H.O. Raju Ram handed over the sealed packets of contraband article marked 'A', 'B', and C alognwith motorcycle No. DD-03A-4149 which were deposited in the 'Malkhana' and an entry to that effect was made at Sr. No. 91 in the Malkhana Register. The copy of entry of Malkhana Register is Ex.P-lOA. The sample marked A was sent for analysis to Forensic Science Laboratory, Jaipur through Head Constable Khet Singh (PW-9) and entry was made in Malkhana Register. The receipt thereof is Ex.P-13.PW-6 Om Prakash is person who brought the investigation box, seal, weights and weighing machine etc., on the spot at 'Lodhta Achalawata' where the police-party was carrying out search and seizure proceedings. He stated that the accused Sanwta Ram was also present. The S.H.O. on measuring, found the contraband to be weighing 5 Kgs. and 200 grams. He stated that the accused Sanwta Ram was also present. The S.H.O. on measuring, found the contraband to be weighing 5 Kgs. and 200 grams. The contraband and sample after being sealed, were brought to police station alongwith the accused.PW-7 Tarachand is the shop-keeper from whose shop, Constable Om taken weight and weighing machine. He stated that his shop is located in front of the police station and his son gave the weights and weighing machine.PW-8 Sumer Singh is the witness of site-plan (Ex.P-16), who has not supported the prosecution story and turned hostile.PW-9 Khet Singh is the carrier of sample to FSL. As per his statement, Malkhana Incharge handed over one sealed packet alongwith document road certificate (Ex.P-11) and forwarding letter sent to SP Office (Ex.P-12) for depositing at Forensic Science Laboratory, Jaipur. He further stated that he got forwarding letter from SP Office (Ex.P-8). He stated that the packet remained intact with him till he deposited in the said Laboratory. The receipt thereof is (Ex.P-13).PW-10 Simartha Ram is the-Investigating Officer to whom the Circle Officer (Rural) handed over the file of CR No. 85/2000 for further investigation. He recorded the statements of witnesses, visited the site, prepared site-plan, site inspection memo (Ex.P-16) and after completion of investigation submitted file to the S.H.O., P.S. Dechu.PW-11 Bhawani Singh (FC No. 413) stated that on 13.7.2000 he was posted in SP Office (Rural), Jodhpur. He stated that he checked the sealed packet brought by Constable-Khet Singh and gave him forwarding letter (Ex.P-18) for depositing to FSL.PW-12 Daulat Singh stated that he was the motbir witness of site-plan (Ex.P-16). He stated that he alongwith the S.H.O., P.S. Balesar saw the site. The site plan bears his signatures as 'C' to 'D'.From the side of defence, two witnesses were produced in defence. DW-1 Rewant Singh stated that he runs shop for mending tyres and tube at the site from where the alleged recovery was made. He stated that two years' prior, in the night at 9.30 - 10.00 P.M., a person left his motorcycle No. DD-03A-4149 in front of his cabin as the motorcycle was not starting. At that time, other shopkeeper Haridas was also there. After half an hour police 'Jabta' (search party) came. He further stated that the 'dickey' of motorcycle was found open and nothing was recovered from inside. At that time, other shopkeeper Haridas was also there. After half an hour police 'Jabta' (search party) came. He further stated that the 'dickey' of motorcycle was found open and nothing was recovered from inside. The police took away the motorcycle.DW-2 Haridas stated that his shop is adjacent to the shop of Rewant Singh (DW-1) situated at 'Lodhta Fanta. He further stated that the police had checked the vehicle in his present and nothing was recovered. 11. I have considered the rival contentions placed by the learned counsel for the appellant and the learned Public Prosecutor and have perused the findings of the learned trial Court. 12. As per the prosecution story, on 5.7.2000 at 11.00 P.M., while S.H.O. PW-2 Raju Ram along with other police constables on Government jeep were returning back to the police station, PW-2 Raju Ram saw a motor-cycle No. DD-034-4149 coming near village 'Lodta Achlawata'. PW-2 signalled the driver of motor-cycle to stop, but the rider did not stop the motorcycle and sped up towards Chomu. On this, PW-2 Raju Ram directed to chase him. At that time, PW-2 was having doubt about Opium in the motorcycle and he also told his companions in this respect. PW-3 Malu Ram, PW-4 Panna Ram and PW-13 Durg Singh as these witnesses have stated in their statement that PW-2 Raju Ram told that there is possibility of Opium with the motor cycle. It is revealed from the record that PW-2 Raju Ram was not knowing the motor-cyclist by face and that was the time of late night at P.M. Ultimately the motor-cycle made to stop and the 'dickey' of the motor-cycle was checked where the contraband item Opium milk was found. From the prosecution side, it is said that it was accidental checking and no prior information was there of having opium but looking to the statements of above mentioned witnesses, it is revealed that the said motor-cycle was chased on suspicion of opium, otherwise during full day so many motorcycle would have come crossed the way but as per the statement of PW-2 Raju Raj, the other vehicles' or motor-cycles were neither stopped nor they were checked and only this motor-cycle was signaled to stop, chased and checked, therefore, it can be inferred that the S.H.O., PW-2 Raju Ram was having some information about opium before search. It was also stated by PW-2 Raju Ram that he went in search of accused of Case No. 68/2000 and in connection with law and order to meet Tehsildar but during the course of his statement, he has not been able to prove these causes by producing relevant record. Thus, the said seizure cannot be believed that it was made accidental. The Hon'ble Apex Court in the case of Jagdish v. State of Madhya Pradesh, reported in 2003 (9) SCC 159 , where under the routine checking only one passenger out of 30-40 passengers was picked up and made to alight from the bus and thereafter on search contraband was found with him. The independent witnesses did not support the recovery. Prosecution story was found un-natural and the judgment of conviction and sentence was set aside. In this case, it is found that the S.H.O. PW-2 Raju Ram was having prior information of opium. The S.H.O. PW-2 Raju Ram has neither written down the report nor has submitted that to the officer superior before taking search and the explanation given by PW-2 Raju Ram in this respect that 'it was not necessary, is not sustainable. Thus, the contention of the accused-appellant is having force in this respect and it is found that compliance of Section 42(1) and (2) of the mandatory provisions of Act has not been made by PW-2 Raju Ram. The learned trial Court has not appreciated this aspect of the matter. Thus, the finding to this extent is not sustainable and is liable to be quashed. 13. It was further stated by the prosecution that when the motor-cycle was stopped, name of the accused was asked. The 'dickey' of the motor-cycle was checked and contraband article opium milk was found inside in the 'dickey'. It is not disputed that checking proceedings was done at 11 P.M. in the night. It is also believed that the checking of the 'dickey' was made under the belief having opium. In the back ground of these facts, it was contended that the S.H.O. PW-2 Raju Ram was not entitled to search private motor-cycle in the night at 11 P.M. without recording grounds for his belief. I have considered the contentions and found that the said motor-cycle was not a public conveyance and the contraband was found inside the covered 'dickey'. In the back ground of these facts, it was contended that the S.H.O. PW-2 Raju Ram was not entitled to search private motor-cycle in the night at 11 P.M. without recording grounds for his belief. I have considered the contentions and found that the said motor-cycle was not a public conveyance and the contraband was found inside the covered 'dickey'. The search was made between sunset to sunrise i.e. in the late night at 11 P.M. The contention of the learned Public Prosecutor that it was an accidental search and checking was made in public place but to my mind, the contentions of learned Public Prosecutor are not having force. The search was of a private motor-cycle. In the case of Nathu v. State, reported in 1997 Cr LR (Raj.) 135 and Bhagwan Singh (supra), Bhikam Singh (supra), private motor-cycle/car applicable. Thus, in the present case, Section 43 was not applicable and Section 42 was applicable. The search of the motor-cycle 'dickey' was made in pursuance of having opium, therefore, it was not an accidental search. 14. In the case of Mohinder Kumar v. State of Panaji, Goa, reported in AIR 1995 SC 1157 while the police during patrolling duty, on suspicion of having narcotic drugs affected search and seizure between sunset and sunrise inside the house where contraband was found, without prior recording of grounds of belief, it was held that the compliance of mandatory provisions of Section 42 has not been made and the benefit of that non-compliance was given to the accused. The relevant portion of the decision is quoted as under: "In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panchas, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sunset and sunrise, he must record the grounds of his belief. Admittedly, he did hot record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. Under Section 42(1) proviso, if the search is carried out between sunset and sunrise, he must record the grounds of his belief. Admittedly, he did hot record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the proviso to Section 42(1)." Thus, in my opinion, it was incumbent upon the S.H.O. PW-2 Raju Ram that before search, he should have written the grounds for his belief and should have forwarded it to officer superior as provided in Sections 41(2) and 42(2) of the Act. Therefore, in this case, as contended by the learned counsel for the appellant, it is found that there were violation of mandatory provisions of Sections 42(1) and 42(2) of the Act and prejudice is caused to the accused-appellant thereby. The learned trial Court has not properly appreciated this aspect and has wrongly concluded that Section 43 of the Act was applicable, therefore, the finding is not sustainable. Accused-appellant would be entitled to get benefit of it. The conclusion is further supported by the decisions of Apex Court in Mohinder Kumar v. State of Panji, Goa, AIR 1995 SC 1157 and Paramjit Singh v. Union of India, 2000 Cr LJ (Raj.) 100 and other authorities cited above. In those authority, it has been held that failure of compliance of mandatory provisions, the accused is entitled to be acquitted. Thus, as per the finding given above, due to non-compliance of mandatory provisions of the Act, the judgment and order of the learned trial Court is not sustainable and the accused-appellant is entitled to be acquitted. Though, I have also considered the other contentions raised by the learned counsel for the appellant. It was mainly contended that in this case, the prosecution has not been able to prove the link evidence beyond doubt against the accused-appellant by strong and reliable evidence and due to that the finding of guilt arrived at by the learned trial Court is not sustainable and the appellant is entitled to get benefit of those laches. 15. It was mainly contended that in this case, the prosecution has not been able to prove the link evidence beyond doubt against the accused-appellant by strong and reliable evidence and due to that the finding of guilt arrived at by the learned trial Court is not sustainable and the appellant is entitled to get benefit of those laches. 15. It is revealed from the record that in this case, no independent private witnesses were called at the time of carrying out search and recovery proceedings. It is said that during night no witness was available at that time, but from the record, it is revealed that where the search was taken, there were premises in vicinity. The prosecution witness has admitted that one primary school existed nearby and other premises were there in addition to this. As per the prosecution witness, gas light was managed by someone for preparation of furds but no independent witness was kept at the time of recovery. In this respect, no efforts were made and the police constables posted in the same police station under the control of PW-2 Raju Ram were made 'motbir' witnesses. Tims, the search and seizure proceeding is not proved by independent witnesses and the matter in which recovery is made is not proved beyond doubt. In this respect, the authorities cited by the learned counsel for the appellant also supports the conclusion. In the case of Koluttumottil Razak (supra) and Sudan and others (supra), it was held that where no independent witness was produced while conducting search, it has caused prejudice to accused and the conviction was set aside. 16. Contentions were also raised with respect to link evidence and it was contended that the prosecution has not been able to prove the same beyond doubt. It is revealed from the record that each sample of 30 Grams was taken and sealed on the spot and it was packed in small iron box as per the seizure memo (Ex.P-2) but as per the FSL Report (Ex.P-19), the sample sent for analysis was found to be weighing 18.523 Grams. Thus, there is a material variance in weight. It was contended that due to evaporation, possibility of loss cannot be ruled out but as per the seizure memo (Ex.P-2) the sample packed was sealed and has been deposited without any loss of time. Thus, there is a material variance in weight. It was contended that due to evaporation, possibility of loss cannot be ruled out but as per the seizure memo (Ex.P-2) the sample packed was sealed and has been deposited without any loss of time. This variation in weight has not been explained by cogent reasons. In addition to variance in weight between the seizure memo (Ex.P-2) and FSL report (Ex.P-19), there are also material contradiction in the statements of witnesses in this respect. As per the seizure memo (Ex.P-2), the sample was sealed and kept in small iron boxes and sealed but as per the FSL report (Ex.P-19), the sample was found packed in polythene bag packed in metallic container. In this respect, PW-4 Panna Lal a motbir witness of seizure proceeding has stated that the sample was kept in plastic boxes. PW-13 Durg Singh another motbir witness of seizure proceeding stated that the sample was packed in plastic bags and thereafter were sealed in cloth bags. Thus, there is a lack of corroboration, which makes the recovery proceedings doubtful. Thus, due to variance in weight and other infirmity, it cannot be believed that the sample remained intact and in self-same condition till it reached to the Forensic Science Laboratory. In cases of Rajesh jagdamha (supra), Salag Ram v. State of Rajasthan (supra), State of Rajasthan v. Sanwat Singh (supra) and Om Prakash v. State of Rajasthan (supra) variation in weight has been found to be fatal to the prosecution and the judgment of conviction was set aside. It is also revealed that the seal which was used in sealing the contraband was not the personal seal of the S.H.O. but the seal was of the police station and that remained with the S.H.O. after use. Along with contraband articles, neither the specimen memo of seal was deposited in the 'Malkhana' nor it was proved that the contraband articles were again re-sealed by the Incharge Malkhana. From the side of prosecution, it is not proved by corroborative evidence that the specimen seal was deposited alongwith sample to FSL. In this respect, PW-9 Khet Singh witness of carrier of sample has not corroborated the prosecution story. Thus, from the prosecution evidence, it has not been proved beyond doubt that the sample taken at the time of seizure remained intact and in self same position till it reached Forensic Science Laboratory. In this respect, PW-9 Khet Singh witness of carrier of sample has not corroborated the prosecution story. Thus, from the prosecution evidence, it has not been proved beyond doubt that the sample taken at the time of seizure remained intact and in self same position till it reached Forensic Science Laboratory. In this respect, the prosecution has not been able to prove complete link evidence. It is not disputed that these provisions are not mandatory but burden lies on the prosecution to prove the case against the accused beyond doubts by reliable evidence that the sample remained intact throughout. These provisions cannot be ignored. On the basis of these cumulative effects, the case is not found proved against the accused-appellant. The learned trial Court has not properly considered these aspect of the case and thus the finding is not sustainable and the accused is liable to be acquitted. 17. On the basis of the aforesaid discussion, the charge against the accused is not found proved as compliance of Sections 42(1) and 42(2) of the Act, which are mandatory in nature, have not been complied with and it is not proved by independent witnesses that the contraband article as alleged was found from the possession of accused-appellant and it is not proved that contraband article remained intact till its deposition in FSL. The accused-appellant is, therefore, entitled to get benefit of this and the appeal deserves to be allowed. 18. In the result, the appeal is allowed. The judgment under appeal is set aside. The appellant-Sanwta Ram is acquitted of the charge of 8/18 N.D.P.S. Act. He shall be released forthwith, if not needed in connection with any other case.Appeal allowed. *******