Judgment ( 1. ) THIS criminal appeal has been preferred under Section 374 (2) of cr. P. C. being aggrieved by the judgment, finding and sentence dated 03-05-1993 passed by Special Sessions Judge, Sagar, in Special sessions Trial No. 17/92 whereby the appellants have been convicted under Section 8 (c) read with section 20 (b) (i) of NDPS Act and sentenced to R. I. for 2 years with fine of Rs. 5000/-, each, in default, to undergo further R. I. for 1 year. ( 2. ) THE prosecution case, in brief, is that in the intervening night of 7th and 8th April, 1992, Jagmohan Singh Batti, SDO (P) Rehli was on patrolling duty by Jeep No. MPP 2733. He saw a TVS-XL No. CPV 310 standing on road near Chanaua village in the suspicion condition. Two persons were standing there. On asking, they told that the belt of vehicle has been broken. They could not give satisfactory answer regarding their presence in so late night. He felt smell of Ganja, hence searched the bag which was hanging on handle of this vehicle and found 3 pollythin packets of Ganja in it. Halku Raikwar stated that this Ganja is of him. Then, dickey of vehicle was also searched wherein Ganja was found in 2 packets. Ramesh Dubey stated that this Ganja belongs to him. They could not give satisfactory reply regarding the possession of Ganja, hence 2 kg ganja from Halku and 1" kg Ganja from Ramesh Dubey was seized. Vehicle TVS No. CPV 301 was also seized. They were found to have committed an offence under section 8-B/20-A of NDPS Act hence were arrested at 2. 25 A. M. Dehati Nalisi Ex. P-4 was recorded. On return to P. S. Garhakota, Crime No. 83/92 was registered under section 8-B/20-A of NDPS Act. The statements were recorded. Seized articles were sent for chemical examination to FSL Sagar wherefrom report received that there is Ganja in item no. A B C D and E. After completing the investigation, charge sheet was filed in the special Court for trial. ( 3. ) THE accused persons were charged under Section 8 (c) read with section 20-B (i) of NDPS Act that on 8. 4. 1992 at village Chanaua, they were found having 1 " and 2 kg Ganja. ( 4. A B C D and E. After completing the investigation, charge sheet was filed in the special Court for trial. ( 3. ) THE accused persons were charged under Section 8 (c) read with section 20-B (i) of NDPS Act that on 8. 4. 1992 at village Chanaua, they were found having 1 " and 2 kg Ganja. ( 4. ) THE accused persons abjured the guilt and claimed to be tried mainly contending that they have been falsely implicated. ( 5. ) THE prosecution examined as many as 4 witnesses and the defence did not examine any witness. After appreciating the evidence, trial court found them guilty under section 8 (c) read with section 20-B (i) of NDPS Act and sentenced thereunder as mentioned in para No. 1 of this judgment. Being aggrieved by the judgment finding and sentence of the trial court, this appeal has been preferred by the appellants on the grounds mentioned in the memo of appeal. ( 6. ) THE learned counsel for the appellants submitted that the trial court has not appreciated the evidence in the proper perspective. The seizure witnesses Manaklal PW-2 and Rakesh Kumar-PW-3 have not corroborated the fact regarding recovery of Ganja from the appellants. They have not been declared hostile. Therefore, their evidence is binding upon the prosecution. He has further submitted that Jagmohan Singh Batti has not identified these appellants in court. Other witness Rakesh Kumar PW-3 also could not identify them. Trial Court has wrongly held that Ganja was seized from be appellants. No weighment Panchnama was prepared. It was necessary to establish whether Ganja was of smaller quantity or of greater quantity. No sample was drawn. No such Panchnama was prepared. It was not proved that the articles sent for chemical examination were the same which were seized from appellants. There is inordinate delay in sending the sample for analysis. No satisfactory explanation has been given by prosecution for such delay. He has further submitted that the provisions of Section 42, 52 and 57 of NDPS Act have not been followed. The trial Court has committed an illegality in finding them guilty and sentencing under section 8 (c ) read with section 20-B (i) of NDPS Act. The finding of guilt deserves to be set aside and hence are entitled for acquittal. ( 7. The trial Court has committed an illegality in finding them guilty and sentencing under section 8 (c ) read with section 20-B (i) of NDPS Act. The finding of guilt deserves to be set aside and hence are entitled for acquittal. ( 7. ) ON the other hand, Shri G. S. Thakur, Panel Lawyer, appearing on behalf of the State/respondent supported the judgment, finding and sentence passed by the trial Court mainly contending that prosecution has proved that the appellants were having Ganja in their possession illegally. The report of FSL is positive wherein the sample was found of Ganja, therefore, the trail Court has not committed any illegality in convicting and sentencing the appellant. Hence it does not call for any interference. ( 8. ) THE main point for consideration in this appeal is that whether trial court has committed an illegality in convicting and sentencing the appellants under Section 8 (c) read with section 20-B (i) of NDPS act, 1985. ( 9. ) I have perused entire case and the evidence adduced therein. ( 10. ) JAGMOHAN Singh Batti (PW-4) has deposed that while he was on patrolling duty, he found a TVS-50 in stationary condition on the road. Two persons were standing there. On smell of Ganja, he searched a bag which was hanging on the handle of the vehicle and found a pollythin bag containing 1 " kg of Ganja. Then, he searched dickey of that vehicle and found 2 kg. Of Ganja in a pollythin bag. Ganja was seized from accused persons vide seizure memo Ex. P-1 and P-2 in presence of witnesses. However, this witness could not identify the appellants in the court. ( 11. ) MANAKLAL (PW-2) and Rakesh Kumar (PW-3) are the seizure witnesses. They have not corroborated the fact of seizure of Ganja from the accused persons in their presence, but admitted their signatures on the seizure memo Ex. P-1 and P-2. Surprisingly enough the prosecution did not declare them hostile. In such situation, the defence can rely upon the evidence of these witness and it would be binding upon the prosecution as held in the case of Rajaram v. State of rajasthan 2005 SCC (Cr.)1050; Jagan M. Sheshadri v. State of tamil Nadu 2003 SCC (Cr.) 1494; Mukhtiar Ahmad Ansari v. State (NCT of Delhi) 2005 SCC (Cr.) 1037. ( 12. ( 12. ) IT is crystal clear that seizure witnesses are not giving the evidence that Ganja was seized from these appellants and jagmohan Singh Batti (PW-4) himself was not in a position to identify the appellants in the Court to establish the fact regarding seizure of ganja from these appellants. In the case of Jagdish v. State of madhya Pradesh ( 2003) 9 SCC 159 and Ritesh Chakravarty v. State of MP (2006) 12 SCC 321 , the judgment of conviction was set aside when the Panch witnesses denied the search and seizure of the appellants in their presence. ( 13. ) THE seized articles were not weighed. No weighment panchnama was prepared. It was necessary to come to the conclusion whether the seized articles are covered in smaller quantity or not. The weight of seized Ganja has been shown only by guess. ( 14. ) JAGMOHAN Singh Batti (PW-4) has himself admitted that the sample was not sealed on the sot. But it was sealed at P. S. Garhakota in his presence. In seizure memo Ex. P-1 and P-2, it is mentioned that ganja was sealed when seized. Thus, sealing of Ganja at the spot appears to be wrongly mentioned in these documents. ( 15. ) NO sample has been drawn by this witness. He has deposed that T. I. Garhakota, took sample and sent to F. S. L. Sagar for chemical analysis. In such situation, it was obligatory on the prosecution to prove that the sample which was sent for chemical examination was taken from the contraband articles seized from appellants. ( 16. ) NO any document showing as to when the sample was sent to f. S. L. Sagar has been filed. However, it is found from F. S. L. report that the sample was sent by P. S. Garhakota on 22. 4. 92. Thus, it is apparent that this sample was kept at P. S. Garhakota from 8. 4. 92 to 21. 4. 1992 but the evidence has not been adduced on behalf of prosecution that the sample was kept in intact condition during this period and this fact has also not been explained as to why the sample was sent so late. ( 17. ) JAGMOHAN Singh Batti (PW-4) has deposed that he cannot identify the packets containing Ganja. 4. 1992 but the evidence has not been adduced on behalf of prosecution that the sample was kept in intact condition during this period and this fact has also not been explained as to why the sample was sent so late. ( 17. ) JAGMOHAN Singh Batti (PW-4) has deposed that he cannot identify the packets containing Ganja. However, when the packets " article A and B were produced, he stated that these are the same packets which he seized but he has not assigned any reason as to how he identified these packets later on. ( 18. ) IN the State of Punjab v. Balbeer Singh (1994) 3 SCC 299 , it has been held that under the proviso to section 42 (1), if such officer has to carry out search between sun set and sun rise, he must record the grounds of his belief. To this extent, these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. Section 42 (ii) of NDPS Act. ( 19. ) UNDER Section 42 (ii) of the Act, there is a provision that the officer shall within 72 hours send a copy of ground of belief to his immediate superior officer but in the present case, no such ground has been recorded and no copy has been forwarded to his immediately superior officer. Therefore, no compliance of Section 42 (ii) of the Act has been made. ( 20. ) SECTION 55 of the Act also does not appear to have been made complied with which runs as follows : "55. Police to take charge of articles seized and delivered. An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station" ( 21. ) THUS, several infirmities are found in the prosecution case. ) THUS, several infirmities are found in the prosecution case. The prosecution has failed to establish the guilt against the appellants beyond reasonable doubt, therefore, the trial court has committed an illegality in convicting and sentencing the appellants under section 8 (c) read with section 20-B (i) of NDPS Act. Such finding is set aside and the appellants are entitled for acquittal. ( 22. ) CONSEQUENTLY, the appeal succeeds and is allowed. The conviction and sentenced passed by the trial Court in Special sessions Trial No. 17/92 is hereby set aside. Appellants are acquitted of the charge levelled against them. They are on bail. They be set at liberty. Fine amount, if paid, be refunded to them as per provisions of law. The order regarding disposal of criminal properties passed by the trial Court is hereby maintained.