JUDGMENT Hon’ble Vinod Prasad, J.—Roshan Lal son of Dhaniram resident of Harsh, Police Station Kasuli, district Solan, Himachal Pradesh has filed this appeal challenging his conviction under Section 20 (B) (II) N.D.P.S. Act, and sentence of ten years R.I. with fine of Rs. On lac recorded by Special Judge, N.D.P.S. Act, Allahabad in Special Sessions Trial Number 24 of 1995, State v. Roshan Lal, under Section 20(B) (ll) N.D.P.S. Act, Police Station George Town, District Allahabad (arising out of Crime Number 22 of 1995). The Trial Judge has also ordered that the appellant shall undergo two years simple imprisonment in the event of default in payment of fine awarded to him and the sentence spent in jail by the appellant shall be reconned with as term of his sentence while computing his period of sentence awarded by the impugned judgment. 2. In nutshell the prosecution allegations as is culled out from the recovery memo F.I.R. are that on 16.1.1995 S.I. Doodh Nath Yadav (Informant) S.O. of Police Station George Town, Allahabad accompanied by Constable Jai Narain Singh, Constable Dhirendra Singh, Constable Rajesh Kumar Singh, driver Chandrabali Yadav was searching for the accused of Crime Number 21 of 1995, under Section 302 I.P.C. on a Police jeep when he received the information near Lowther Road, post office crossing that a person with illegal Charas is going from medical crossing to C.M.P. Degree collage over bridge through M.G. Marg. On this information, informant along with accompanied police Constables proceeded towards C.M.P. Degree college over bridge and from the way he picked up S.I. Ganashi Lal Verma and S.I. Padmaker Rai from near a motor garage on Lowther Road. Through R.N. Banerjee Road police party reached near the over bridge in front of C.M.P. Degree College and started waiting for the concerned person. After sometime a person approached the over bridge from medical college crossing who was pointed out to be the desired person. Police party apprehended him on the road in front of C.M.P. College East Gate at 5.50 p.m., on 16.1.1995. On enquiry being made the apprehended person disclosed his name as Roshan Lal son of Dhaniram resident of Harsh, Police Station Kasuli, district Solan, Himachal Pradesh. Police party apprehended him on the road in front of C.M.P. College East Gate at 5.50 p.m., on 16.1.1995. On enquiry being made the apprehended person disclosed his name as Roshan Lal son of Dhaniram resident of Harsh, Police Station Kasuli, district Solan, Himachal Pradesh. Informant informed him that they have got the information that he is carrying narcotic drug and therefore, would he like to be searched before a Gazetted Officer or would like to be searched by raiding party itself. The apprehended person Roshan Lal, (appellant) expressed his desire to be searched by the police party itself. On searched being conducted by the informant 7 Kg. of Charas narcotics was recovered from a black bag carried by the appellant which was kept in various small polythene coverings. From the pocket of appellant kurta Rs. 950/- were also recovered. Appellant could not give any satisfactory answer for the possession of narcotics hence he was arrested under Section 20 of the N.D.P.S. Act after being informed the cause of his arrest. The seized narcotic was zipped in the same bag, sealed and stamped at that spot and seal impression was prepared. Many passers by where requested to be witnessed of the search and seizure but all of them denied. Recovery memo was prepared on the spot and was got signed by the members of seizing party. 100 grams of seized narcotics was taken out for sampling purpose and was sealed in a container. Seizure memo was registered as F.I.R. as crime No. 22 of 1995 for offence under Section 20 NDPS Act at P.S. George Town, Allahabad on 16.1.1995 at 6.15 p.m. against the appellant as malefactor. Follow up investigation resulted in charge-sheet against the appellant. Appellant was summoned by the trial Court and Special Judge N.D.P.S. Act, Allahabad charged him under Section 20 (B)(II) NDPS Act in Special S.T. No. 24 of 1995, State v. Roshan Lal, on 23.3.2002 which charge was read out to the appellant who denied the same and claimed to be tried. 3. In the trial prosecution examined S.I. Doodhnath Yadav, (informant) as P.W. 1, Padmakar Rai, S.I. P.W. 2 (witness of fact) and Ram Pratap Singh, S.I. P.W. 3 (Investigation Officer of the case) and proved relevant documents as exhibits. 4. 3. In the trial prosecution examined S.I. Doodhnath Yadav, (informant) as P.W. 1, Padmakar Rai, S.I. P.W. 2 (witness of fact) and Ram Pratap Singh, S.I. P.W. 3 (Investigation Officer of the case) and proved relevant documents as exhibits. 4. In his statement under Section 313, Cr.P.C. recorded on 10.12.2003 appellant took the plea of false implication but he did not lead any defence evidence. 5. Trial Judge heard the arguments and finding the case of the prosecution proved to the hilt convicted and sentenced the appellant under Section 20 (B) (II) NDPS Act by his impugned judgment and order dated 16.12.2003 which has been challenged in this appeal. 6. In the trial S.I. Doodhnath Yadav informant P.W. 1 reiterated the prosecution version and stated that while he was searching for the accused of Crime Number 21 of 1995, under Section 302, I.P.C. near Lowther Road, Post Office Crossing on 16.1.1995 he received the information that a person is going through Mahatma Gandhi Marg from Medical Crossing and is proceeding towards C.M.P. Degree College over bridge and he is having illegal narcotic (Charas). Believing the said information to be correct, informant accompanied by Narain Singh, Dhirendra Singh, Rajesh Kumar Singh all police constables and driver Chandra Bali Rai reached near Maharani Motor Garage on the Lowther Road where he met with S.I. Ganashi Lal Verma and S.I. Padmakar Rai (P.W. 2). Informing them about the purpose informant took them along with him and after reaching near the over bridge they started waiting for the accused. After sometime accused approached the over bridge with a black zipped bag in his right hand who was pointed out to be the desired person by the informer. As soon as the said person (appellant) reached near the police party he was warned on which he tried to make his escape good but was apprehended at 5.50 p.m. who disclosed his name as Roshan Lal the appellant. Appellant was informed of his rights under Section 50 of NDPS Act that if he wants he can be searched before the Gazetted Officer, which was refused by him. Appellant was searched and 7 Kg. of narcotic Charas was recovered from the black zipped bag carried by him which was kept in small polythene packets and also Rs. 950/- from the pocket of his kurta. Appellant was searched and 7 Kg. of narcotic Charas was recovered from the black zipped bag carried by him which was kept in small polythene packets and also Rs. 950/- from the pocket of his kurta. Appellant could not show any paper for possessing narcotic drug and consequently he was arrested. 100 grams of narcotics was taken out as sample and was sealed in a tin cane for chemical examination. Rest of the seized narcotic was sealed in the same bag. Impression of seal, seizure memo were prepared on the spot and after being read over to the accompanying police personnels their signatures were obtained on the seizure memo Exhibit Ka-1 a copy of which was handed over to the accused as well. Appellant accused was taken to the police station, George Town Allahabad and a F.I.R. was got registered against him as Crime No. 22 of 1995, under Section 20(B) (II) N.D.P.S. Act. Recovered narcotic was deposited in the lock up. Ram Dayal prepared chick F.I.R. (Exh. Ka-2) and GD entry (Exhibit Ka-3), which was proved by the informant along with recovered Charas Exhibit-1 which, on being weighed in the Court room, was detected to be 5 Kg. 600 gram and deducting 100 grams of sample and weight of ginny bag and black zean bag the actual quantity discovered was 5 Kg. 500 grams. 7. In the trial P.W. 1 evidenced that because the narcotic Charas had dried interregnum in eight years therefore, loss in weight had occurred. In his cross-examination P.W. 1 testified that Lowther Road, Post Office is one and quarter Km. away from Medical Crossing and C.M.P. Degree College is one and a half kilometers away. He further testified that along with him three constables and the driver were present at the time when he had received the information. He also testified that the accused was apprehended at 5.15 p.m. and at that time other police personnels were accompanying him. He did not call any Gazetted Officer because the accused had refused for being personally searched before the Gazetted Officer. P.W.1 denied the suggestion that the appellant accused had not denied the request for being searched before a Gazatted Officer. He further testified that many public witness had collected on the spot at the time of search and seizure but they refused to be a witness of the same. P.W.1 denied the suggestion that the appellant accused had not denied the request for being searched before a Gazatted Officer. He further testified that many public witness had collected on the spot at the time of search and seizure but they refused to be a witness of the same. P.W.1 denied the suggestion that he had intentionally not joined independent witness and as the appellant was a resident of Himachal Pradesh he had implicated him falsely. He further stated that he had prepared the recovery memo in the street light and denied the suggestion that the appellant was arrested from the way and after showing a false recovery has been falsely implicated in a cooked up case. 8. S.I. Padmakar Rai P.W. 2 also corroborated the statement of P.W.1 and evidenced that appellant was arrested at 5.15 p.m. from the east gate of C.M.P. Degree College crossing and had disclosed his name as Roshan Lal. He further testified that appellant was given an opportunity of being searched before Gazetted Officer or Magistrate which he refused and 7 Kg. of Charas kept in small polythene packets was recovered from black zean zipped bag along with Rs. 950/- from his possession and he had not been able to show any document for keeping 7 Kg. Charas with him. Sample of 100 gram of recovered Charas was sealed in a tin cane. He also proved his signature on the recovery memo and further stated that the appellant along with the seizure memo etc. was taken to the police station were the F.I.R. was got lodged against the appellant. He also identified the recovered narcotics and the bag. On being cross-examined he denied the suggestion that the appellant did not deny the option of being searched before the Gazetted Officer or the Magistrate and he had requested for being searched before them but the searching party refused to oblige him with such right. He also denied the suggestion that nothing was recovered from the possession of the appellant and after showing a false recovery appellant had been falsely implicate in the offence. 9. Ram Pratap Singh P.W.3 who is the investigation officer of the case testified that on 16.1.1995 he was posted at Allahabad out post in-charge under police circular of George Town Police Station and on 17.1.1995 he was intrusted with the investigation of the said Crime No. 22 of 1995. 9. Ram Pratap Singh P.W.3 who is the investigation officer of the case testified that on 16.1.1995 he was posted at Allahabad out post in-charge under police circular of George Town Police Station and on 17.1.1995 he was intrusted with the investigation of the said Crime No. 22 of 1995. After copying Chick F.I.R. and G.D. he recorded the statements of first informant S.I. Doodhnath Yadav and S.I. Padmakar Rai witness of recovery. On 19.1.1995 he recorded the statement of S.I. Ganeshi Lal Verma, Constable Jai Narain Singh, Constable Dhirendra Singh, Constable Chandra Bali Yadav and then he conducted the spot inspection at the pointing out of S.I. Ganashi Lal Verma and prepared the site plan as Exhibit Ka-4. He further stated that after completion of investigation he had submitted the charge sheet against the appellant as Exhibit Ka-5. He also proved the memo by which he had sent the contraband for being chemically examined to Central Forensic Scince Laboratory, Lucknow as Exhibit Ka-6, In his cross-examination he had denied the suggestions that he had done all the investigation at the police station itself and had not gone to the spot at all. 10. In his statement under Section 313, Cr.P.C. appellant denied the search and the seizure as cooked up and false and stated that the whole investigation is sham. In his defence he stated that he had come to Allahabad to take bath in the confluence Sangam and while returning he had a scuffle with two police constables as a result of which he was arrested and falsely implicated in the offence showing a false recovery. 11. On such evidence I have heard Sri B.S. Srinetra, learned Counsel for the appellant in support of this appeal and learned A.G.A. in opposition. 12. Learned Counsel for the appellant contended that in this case search, seizure and recovery are absolutely false and cooked up and the appellant had been falsely implicated in the case. He contended that the alleged recovery is said to be in the month of mid January when it was very cold and no source of light is mentioned in the recovery memo or in the F.I.R. when the incident is of 5.50 p.m. when it was dark and foggy and therefore, it was impossible for the searching party to identify the appellant from a distance. Learned Counsel further contended that there is nothing on record to show that Section 57 of the NDPS Act had been complied with in the case as no report as is contemplated under the said section was dispatched to the superior officials by the informant regarding search, seizure and recovery. He contended that this was not done intentionally because the whole search and seizure was planted. Learned Counsel further contended that it was because of false implication and cooked up story that the independent witness were not got joined at the time of search and seizure. He submitted that the appellant was a resident of Solan, Himachal Pradesh and was alien to the city and because he had a fight with the police personnels therefore, he had been falsely implicated in the case. Learned Counsel contended that Section 50 of the NDPS Act was not complied with in the case as it is clear that no opportunity was given to the appellant to be searched before the Magistrate as is required under Section 50 of the NDPS Act. Learned Counsel submitted that under Section 50 of the NDPS Act the accused must be informed of his right of being searched both before the Gazetted Officer or the Magistrate. He contended that in the absence of the fact that any opportunity was given to the appellant for being searched before the Magistrate his conviction cannot be sustained. He further submitted that it is not proved in this case that the opportunity of being searched before the Magistrate was offered to the appellant at all as the said fact is neither mentioned in the seizure memo nor it has been stated by P.W.1 informant when he was in the witness box. He further submitted that the statement of P.W. 2 in this respect is an embellishment and it is for the purpose of cementing the prosecution version that it was stated by him that the opportunity was given to the appellant for being searched before the Magistrate as well. Learned Counsel submitted that if such an opportunity would have been given the same would have been mentioned in the seizure memo/F.I.R. and P.W.1 would have testified so in his examination-in-chief before the Court. Learned Counsel contended that the appellant was so poor that he was unable to engage a Counsel and therefore, he cross-examined the witnesses himself. Learned Counsel submitted that if such an opportunity would have been given the same would have been mentioned in the seizure memo/F.I.R. and P.W.1 would have testified so in his examination-in-chief before the Court. Learned Counsel contended that the appellant was so poor that he was unable to engage a Counsel and therefore, he cross-examined the witnesses himself. He submitted that it was for the prosecution to prove before the Court that the search and seizure was conducted in accordance with law and hence non-observance of the statutory provision by searching and seizure party should be taken to be non-compliance of the statutory provision and therefore, the accused is entitled to the benefit of doubt. Learned Counsel contended that there was no independent witness of recovery and in the absence of any material and evidence on the record regarding the compliance of Sections 50 and 57 of the NDPS Act the conviction of the appellant recorded by the trial Judge bad in law and appeal deserves to be allowed and the conviction and sentence recorded through the impugned judgment deserves to be set aside and the appellant deserves to be acquitted. 13. Learned A.G.A. contended that the appellant on his own did not engage any Amicus Curiae and he preferred to cross-examine the witness on his own and therefore he cannot raisea any grievance in that respect. He further contended that there was no reason for the informant and the witnesses to falsely implicate the appellant and therefore, the conviction recorded is justified and the appeal being meritless deserves to be dismissed. Learned A.G.A. further contended that the report of the Central Forensic Science Laboratory, Lucknow, proved that the recovered contraband was Charas consequently 7 Kg. of Charas cannot be planted to falsely implicate the appellant. Learned A.G.A. submitted that the defence of the appellant that he had scuffle with constables is not acceptable and therefore, appeal deserves to be dismissed. 14. I have considered the rival submissions and have gone through the trial Court record. In this case from the allegations of the prosecution it is clear that the recovery of the contraband was made from a public place. There is nothing tangible to show that any endeavour was made by the raiding police party and Seizing Officer to join independent witness in search and seizure. The oral testimony and ipse dixit of P.W.1 and P.W.3 is not satisfactory. There is nothing tangible to show that any endeavour was made by the raiding police party and Seizing Officer to join independent witness in search and seizure. The oral testimony and ipse dixit of P.W.1 and P.W.3 is not satisfactory. The recovery has been made at such a place which falls on the Highway between Allahabad and Varanasi and is over crowded most of the times. The place of the incident is densely populated as just besides the over bridge, there are lots of shops and residential locality. In such a view it is not understandable why help of independent witnesses was not taken. A perusal of the original recovery memo also indicate that the fact that independent witnesses were not ready to be a witness of search and seizure is mentioned at the fag end of the recovery memo whereas it should have been mentioned in the recovery memo at the appropriate place before the search and seizure was taken. Taking of independent witnesses is provided under Section 100, Cr.P.C. It is not an empty formality. It should not be left to the Seizing Officers to mention any fact in the recovery memo only to implicate innocent persons. In this case no effort seems to have been made to take the help of independent witness by the informant. This fact casts a doubt on search and seizure. 15. Further from the evidence it also transpires that Sections 52 and 57 N.D.P.S. Act has not been complied with at all. No evidence was led by the prosecution in trial for compliance of the said provisions. It was for the prosecution to bring home the charge against the appellant. It was its duty to lead evidence before the Court that the search and seizure has been conducted in accordance with the provisions of law and that all the formalities for the same were duly observed. It is not for the accused to ask questions on those aspects to his detriment when the prosecution is not leading any evidence regarding the formalities it had to follow at the time of search and seizure. In our jurisprudence the accused has got a right even to keep silence. It is for the prosecution to prove the charge and to bring home the guilt and prove that all the formalities which are required under the Act for search and seizure were duly observed. In our jurisprudence the accused has got a right even to keep silence. It is for the prosecution to prove the charge and to bring home the guilt and prove that all the formalities which are required under the Act for search and seizure were duly observed. In the present case the prosecution has failed to discharge such a responsibility. It is to be born in mind that in a case under the N.D.P.S. Act it is the search and seizure which makes out an offence. The Court must be satisfied that in fact search and seizure was duly conducted in accordance with law and that all the formalities were duly observed. Amongst many other checks against false implication of innocent person Sections 52 and 57 of the N.D.P.S. Act are the two which has been provided under the statute to be observed by the Investigating Officer at the time of conducting search and seizure. Section 52 of the N.D.P.S. Act provides that any officer arresting a person under Sections 41, 42, 43 or 44 of the Act shall as soon as may be informed him the ground of his arrest. There is absolutely no acceptable evidence on the record that the arresting officer informed the appellant ground of his arrest. Further the record of the Trial Court is conspicuously silent in respect of observance of provision of Section 52(3) of the N.D.P.S. Act. It has been held by the apex Court in AIR 2001 SC 1002 , Gurubax Singh v. State of Haryana, as follows : “It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness P.W.1 and was kept with him for 10 days.” 16. In the present case, I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness P.W.1 and was kept with him for 10 days.” 16. So far as Section 57 of the N.D.P.S. Act is concerned it provides that when any officer authorized under Sections 42, 43 and 44 makes any arrest and seizure he shall within 48 hours next after such arrest or seizure make a full report of all the particulars of such arrest and seizure to his immediate official superior. In the present case no evidence at all has been led by the prosecution that any information was given by the P.W.1 to his superior official. It was argued by learned A.G.A. that the case diary contained such a material. I have perused the case diary as well. The case diary is also conspicuously silent on the observance of the said provision. No doubt the Apex Court has said that provision of Section 57 of the N.D.P.S. Act is a directory provision but this, however, does not mean that it should be given a complete go by as that will make Section 57 otiose. It is a cardinal principle of law that if a thing is required to be done in a particular manner then that thing should be done in that manner or not at all. Non-observance of the Section 57 of the N.D.P.S. Act does not by itself diminishes the recorded conviction but it certainly diminishes the value of evidence led in the trial by the prosecution. The accused has taken the defence in this case that the contraband was planted. With such a defence it was the duty of the prosecution to prove the charge to the hilt and establish that the Charas was recovered from the appellant. That having not been established I am of the view that a reasonable possibility of plantation of the contraband cannot be ruled out in the present case in the lack of independent corroboration of prosecution case, non-observance of Section 57 of the N.D.P.S. Act and difference in weight in quantity of Charas recovered. That having not been established I am of the view that a reasonable possibility of plantation of the contraband cannot be ruled out in the present case in the lack of independent corroboration of prosecution case, non-observance of Section 57 of the N.D.P.S. Act and difference in weight in quantity of Charas recovered. All these facts therefore, makes the evidenciary value of the statement of P.W.1 and 3 very doubtful and therefore, I am not inclined to place any implicit reliance on such evidences especially when the persons who accompanied P.W.1 did not come forward at all to support his version and P.W.1 in his deposition before the Court has not deposed that he had made any endeavour for securing the presence of independent witnesses before search and seizure was made. 17. In view of what I have stated above I am not satisfied that the prosecution has been able to bring home the guilt of the appellant and prove the charge against him. 18. Hence, I allowed the appeal, set aside the conviction and sentence awarded to the appellant and acquitted him. The appellant is in jail. He is directed to be released forthwith unless wanted in any other case. 19. A copy of this order shall be notified to the trial Court for its intimation. ————