JUDGMENT Manindra Mohan Shrivastava, J. 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 20 November, 1995 passed by learned Special Judge being the Sessions Judge, Bilaspur in Special Case No. 186/1994, by which the Appellant has been found guilty for commission of offence under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as "the N.D.P.S. Act") and has been sentenced to undergo R.I. for 2 years and fine of Rs. 2,000/-, in default of payment of fine additional R.I. for 6 months. 2. The case of the prosecution is that on 11.10.1994, an information was received by Inspector R.K. Rai regarding arrival of contraband ganja in village Sambalpuri and on receipt of such information, head constable Lallan Singh and constable -Kumar were sent for enquiry. The said information was recorded in Rojnamcha Sanha at Sr. No. 307. Thereafter, on 12.10.1994, Head Constable Lallan Singh telephonically informed to the Inspector R.K.Rai in the police station that ganja is in transit and likely to arrive, whereafter the Inspector, Investigating Officer in the present case proceeded for the scene of occurrence and information was recorded in Rojanamcha Sanha at Sr. No. 323 on 12.10.1994 and arrived at Sambalpuri - Pand Road. Further case of the prosecution is that about 12:45 p.m. the accused/Appellant was seen coming on a cycle, who was intercepted and the accused was informed that he has to be searched and was also informed that he may get the search conducted either through the police inspector or by a gazetted officer or Magistrate, whereupon, the Appellant gave his consent vide Ex. P-7. Thereafter, search was carried out and 2 packets containing 4 kg. ganja found inside a bag kept in the cycle were seized vide seizure memo of Annexure P-2 in the presence of seizure witnesses Ravi Shankar (P.W.2) and Shivkumar Tiwari (P. W.3) and for the purposes of drawing samples, 50 gm. ganja was taken out from each of the 2 packets and sealed. Dehati nalishi was recorded at the spot immediately after seizure vide Ex. P-l A. The Appellant was arrested vide arrest memo (Ex. P-l5), Seized ganja, cycle, dehati nalishi and the Appellant were taken to Police Station - Hirri by Head Constable Lallan Singh and after arrival, FIR was registered. Dehati nalishi was recorded at the spot immediately after seizure vide Ex. P-l A. The Appellant was arrested vide arrest memo (Ex. P-l5), Seized ganja, cycle, dehati nalishi and the Appellant were taken to Police Station - Hirri by Head Constable Lallan Singh and after arrival, FIR was registered. Seized articles i.e. two packets of seized ganja along with 2 samples of 50 gm each were handed over to H.C.M. Aitwa Kujur for safe custody in malkhana vide memo (Ex. P-2). The information regarding seizure and arrest was forwarded to the S.D.O. (P), Kota vide Ex. P-14 on 12.10.1994. The samples of ganja were sent for chemical examination to Forensic Science Laboratory (F.S.L.) along with memo of Superintendent of Police vide Ex. P-8 which was received in FSL and an acknowledgment of receipt was issued vide Ex. P-9. The F.S.L. report (Ex.P-11) was received with covering memo Ex. P-10. The FSL report disclosed a positive result that the samples drawn were ganja. 3. After completing usual investigation, a charge sheet was filed in the Court. Charges were framed against the Appellant for commission of offense under Section 20 (b) (i) of the ND.P.S. Act. The Appellant abjured his guilt and pleaded innocence. 4. Prosecution, in order to prove its case examined as many as 4 witnesses namely B. L. Pandey (P.W.1), Ravi Shankar (P.W.2), Shiv Kumar Tiwari (P.W.3) and R. K. Rai (P.W.4). A solitary witness of defence Dashrath (D.W.I) was examined by the Appellant. The learned trial Court recorded the accused statement under Section 313 of the Code of Criminal Procedure and asked him regarding evidence and circumstances appearing against him, which were denied by the Appellant. Vide impugned judgment and order of sentence, the learned Court below found the Appellant guilty of commission of offence under Section 20 (b) (i) of the N.D.P.S. Act and has sentenced to undergo R.I. for 2 years with fine of Rs. 2,000/- with usual default clause. 5. Assailing the legality and validity of the impugned order of conviction and sentence, learned Counsel for the Appellant argued at length by submitting that the impugned judgment of conviction and sentence is unsustainable in law as there is non-compliance of the mandatory requirements of Section 50 of the NDPS Act. 2,000/- with usual default clause. 5. Assailing the legality and validity of the impugned order of conviction and sentence, learned Counsel for the Appellant argued at length by submitting that the impugned judgment of conviction and sentence is unsustainable in law as there is non-compliance of the mandatory requirements of Section 50 of the NDPS Act. It is argued that the prosecution has failed to prove that before the Appellant was searched, he was asked whether he required search to be carried out by gazetted officer or Magistrate. Next submission of learned Counsel for the Appellant is that there is violation of mandatory provision contained in Section 42 (2) of the NDPS Act, inasmuch as after receipt of information regarding arrival of ganja, which is said to have been recorded in Rojnamcha Sanha No. 307 dated 11.10.1994 (Ex. P-5), a copy thereof was not sent forthwith to the immediate superior official. Further submission of learned Counsel for the Appellant is that there is serious violation of the provision contained in Sections 55 & 57 of the NDPS Act, in as much as there is no evidence much less proof that articles alleged to be seized from the Appellant were kept in safe custody nor was it properly sealed and there was no seal of the officer in charge of the police station and further no report of arrest and seizure was sent to the immediate superior official within 48 hrs. along with a full report of all the particulars of such arrest and seizure. Learned Counsel for the Appellant also argued that the seized contraband were neither marked as article nor were they produced during trial before the Court. The entire case of the prosecution is highly doubtful and no credence can be attached as there is no evidence that the samples of the sealed articles were deposited in malkhana of the police station, as neither malkhana register showing entry of the deposit has been produced or proved nor concerned Malkhana Moharrir who is alleged to have been received the seized article has been examined and there is no explanation for non-production of Malkhana register and non examination of Malkhana Moharrir. It is also argued that though the seizure is said to have been effected and samples drawn and alleged to be deposited on 12.10.1994, the samples were sent for chemical examination on 10.11.1994 and even the constable who had received the samples from Malkhana and who is alleged to have deposited the same in the F.S.L. has not been examined by the prosecution and there is no explanation whatsoever for his non-examination. He further submits that the prosecution has failed to prove seizure of the contraband article, as seizure witnesses have not supported the case of the prosecution and the testimony of the Investigating Officer (P.W.4) is not corroborated on material aspects and therefore the conviction is illegal and unsustainable in law. 6. On the other hand, learned Counsel for the State supported the impugned judgment of conviction and sentence by submitting that the prosecution has proved its case of seizure of contraband article ganja from the Appellant and. From various documents proved by the prosecution and the evidence of the prosecution, it is proved that there is full and substantial compliance of the provisions contained in Sections 42 (2), 50, 55 & 57 of the N.D.P.S. Act. The contraband article was produced before the Court. The report of the F.S.L. proved beyond all pale of doubt that the seized article was ganja. He further submits that the superior official was also informed by the Investigating Officer. 7. I have considered the rival submissions made by learned Counsel for the parties and perused the records. 8. The first question which arises for consideration in this appeal is whether in the present case, provision of Section 50 of the N.D.P.S. Act are attracted and if so, whether the provisions contained in Section 50 with regard to search have been complied with. Provision contained in Section 50 of the N.D.P.S. are mandatory and non-compliance of the same vitiates the trial, is now a settled legal position as held the Supreme Court in the case of Balbir Singh v. State of Panjab (1994) 3 SCC 299 followed by State of Panjab v. Baldev Singh AIR 1999 SC 2378 and catena of decisions. 9. Provision contained in Section 50 of the N.D.P.S. are mandatory and non-compliance of the same vitiates the trial, is now a settled legal position as held the Supreme Court in the case of Balbir Singh v. State of Panjab (1994) 3 SCC 299 followed by State of Panjab v. Baldev Singh AIR 1999 SC 2378 and catena of decisions. 9. The Investigating Officers (P.W.4) R.K. Rai has deposed that upon receipt of information that ganja is being brought near village Sambalpuri, he had reached at the spot along with two witnesses Shivkuamr Tiwari & Ravi Shankar and at about 12:40, two persons were found coming in cycle and the Appellant was intercepted on the road and he was informed that on receipt of information regarding illegal possession of ganja, a search is to be made out and whether he required the search to be carried out by him or by any other gazetted officer or Magistrate, the Appellant gave his consent for being searched by the P.W.4. Notice of search Ex. P-7 prepared by R.K. Rai (P.W. 4) has been proved. The said notice contains Appellant's endorsement regarding his consent for being searched by R.K. Rai (P.W.4). The testimony on those aspects has not been controverted in his cross-examination and corroborated by the statement of Shivkumar Tiwari-(P. W.3), who, though declared hostile, has clearly stated in his cross-examination that when R.K. Rai (P.W.4) informed the Appellant that he is required to be searched, he gave his consent and was searched. Therefore, there is no reason to disbelieve the version of the prosecution, in so far as compliance of Section 50 is concerned. It has however, to be seen that in the present case as the contraband ganja, according to the story of the prosecution itself has been seized from the packets which was taken out from the bag which was kept in the cycle and not recovered from the person of the accused, provision of Section 50 are not attracted and therefore the Appellant could not be allowed to contend that the conviction is vitiated on the ground of violation of Section 50 of the N.D.P.S Act. The word 'person' appearing in Section 50 of the N.D.P.S Act would mean a person himself who is bodily required to be searched or a person to be searched. 10. The word 'person' appearing in Section 50 of the N.D.P.S Act would mean a person himself who is bodily required to be searched or a person to be searched. 10. Moreover, present is not a case where the narcotics are alleged to be seized from the body or from the person i.e. body of the accused or from his hand or something tied to his body. Section 50 of the N.D.P.S Act would come into play only in the case of search of a person as held by the Supreme Court in the case of Baldev Singh (1994) 3 SCC 299 (supra), In the case of Kalema Tumba v. State of Maharashtra and Anr. 2000 Cr.L.R. SC 38 : (1999) 8 SCC 257 narcotics found in the bag alleged to be carried by the accused, it was held that that was a case where the narcotics was not found on the person of the accused. It was held that that was not a case where the narcotic was found from the person of the accused and Section 50 was held not attracted. In the case of Sarjudas and Anr. v. State of Gujarat 2000 Cr.L.R.509: 1999 (8) SCC 508 narcotic was not found on the person of the accused but it was found kept in a bag which was hanging on the scooter on which the accused was riding. It was held that it was not a case where the person of the accused was searched and from his person, narcotics drug was found. In the case of Kanhailalal v. State of M.P. 2001 2 EFR 10 SC : (2000) 10 SCC 380 opium was not found from the person of the accused, but it was found from the bag which was being carried. There also, it was held that it was not a case where on search of the person of the accused a narcotic drug or psychotropic substance was found. Therefore the trial cannot be held vitiated on the alleged ground of violation of the N.D.P.S Act. 11. I shall now consider the other submission made by learned Counsel for the Appellant regarding non-compliance of the provision contained in Section 42 (2) of the Act of 1985. Therefore the trial cannot be held vitiated on the alleged ground of violation of the N.D.P.S Act. 11. I shall now consider the other submission made by learned Counsel for the Appellant regarding non-compliance of the provision contained in Section 42 (2) of the Act of 1985. Learned Counsel for the Appellant submits that an information with regard to arrival of ganja was received by the Station House Officer and the same was recorded in writing at 11:05 a.m. under Rojnamcha Sanha No. 307 on 11.10.1994, which has been marked as Ex. P-5. The Investigating Officer- R.K. Rai (P. W.4) has deposed in his statement that such an information was received. It is also submitted that on the next date i.e. 12.10.1994, S.H.O., in charge of police station recorded information in writing at Rojnamcha Sanha No. 323 that an information was received that the ganja is likely to arrive and S.H.O. was informed to come immediately to village Sambalpuri. The said information recorded in Rojnamcha Sanha is marked as Ex. P-6 and the Investigating Officer (P.W.4) has also deposed that such information was received and recorded in Rojnamcha Sanha whereafter he proceed to the spot for laying raid. Learned Counsel for the Appellant then contended that on the aforesaid recording of information in writing proved by I.O-R.K.Rai (P.W.4) regarding arrival of ganja in village Sambalpuri, it was obligatory and mandatory on the part of S.H.O. to forthwith sent copy thereof to his immediate official superior which was not complied with. It is submitted that on account of non-compliance of mandatory provision contained in Section 42 (2) of the N.D.P.S Act, the trial and conviction of the Appellant is completely vitiated. In order to buttress his submission, learned Counsel for the Appellant relies upon the judgments in the matter of State of Rajasthan v. Shanti EFR 2010 (1) 243 State of Rajasthan v. Babu Lal EFR 2010 (1) 442 Baldev Singh (1994) 3 SCC 299 (supra), Abdul Rashid Ibrahim Mansuri v. State of Gujarat AIR 2000 SC 821 Narmada Prasad v. State of M.P. 2001 CGLJ 306. 12. It be noted that at the time when the alleged offence is said to have been committed, Section 42 prior to its amendment vide Act No. 9 of 2001 read thus: 42. 12. It be noted that at the time when the alleged offence is said to have been committed, Section 42 prior to its amendment vide Act No. 9 of 2001 read thus: 42. Power of entry, search, seizure and arrest without warrant or authorisation.: (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the Departments of Central Excise, Narcotics, Customs, Revenue, Intelligence or any other department of the Central Government or of the Border-Security Force as is empowered in this behalf, by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the Revenue, Drugs Control, Excise, Police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset,: (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance; Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) 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. A perusal of the aforesaid provision would show that for the applicability thereof, where the entry into or search of the place mentioned therein is made between the sunrise and sunset or between sunset or sunrise, such place should be a building or conveyance or an enclosed place. The use of words, building, conveyance or enclosed place in the language of Section 42 has relevance to the expression "if he has reason to believe from personal knowledge or information given by any person and taken out in writing", used in the main body of Section 42 (1). Reading the said two expressions together it becomes clear that the provision contained in Section 42 would apply to those cases of search in which: (a) The officer has reason to believe either from his personal knowledge or to information given to him by any other person and such information has been taken out in writing by him, that an offence under the act has been committed and (b) entry into or search is to be effected in any building, conveyance or enclosed place to unearth such offence. 13. If the two informations Ex. P-5 & Ex. P-6 and the testimony of the Investigating Officer R.K. Rai (P.W.4) is examined in the light of statutory scheme of Section 42, it cannot be said that the information which was recorded in writing was one that any narcotic drug of psychotropic substance or controlled substance in respect of which an offence punishable under the N.D.P.S. Act committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under chapter v. A of the Act is kept or concealed in any building, conveyance or enclosed place. The two informations received in the police station by the officer in charge are regarding arrival of ganja in village Sambalpuri. The two informations received in the police station by the officer in charge are regarding arrival of ganja in village Sambalpuri. The case of the prosecution is that the accused while going on road was intercepted and upon search made, two packets of ganja taken out from a bag kept in cycle were seized. It is thus a case of seizure on a public road and therefore it cannot be said that it was a case of information that either the accused was carrying ganja with him and traveling with the same or that it was kept or sealed in any named building or particular vehicle or in a enclosed named or identified place. The only information which was received in the police station was that trafficking of ganja is taking place in village Sambalpuri. The raiding party had gone to the area and the accused person was intercepted but on a public road while carrying ganja. In such a situation, in the opinion of this Court, provision of Section 42 (2) is not attracted, as the information contained in Ex. P-5 & P-6 cannot be considered as a prior information contemplated under Section 42 (1) of the N.D.P.S Act. In the case of Pothireddi Sivaprasada Rao v. State of A.P. 2001 (2) Crimes 359, information regarding the illegal transport of ganja another contraband received by the officer on duty at the check post. It was not an information that any specific person was going to transport nor it was an information that transport of contraband material would be taken in a particular bus plying on the road. In the case of Monadas v. State of West Bangal 1995 Cri L.J.2990, search of the accused and seizure and arrest were made on a public road. In the case of Chunnilal v. State of Rajasthann 2000 CriL.J. 2355 (Raj.) search was taken at the crossing. In all those cases, it was held that provisions of Sections 42 are not attracted. 14. Learned Counsel for the Petitioner has relied upon the decision in the case where the information was one which was of the nature as the prior information as contemplated under Section 42 (1) of the N.D.P.S. Act, which is not the present case. Those decisions are therefore clearly distinguishable on the facts and circumstances of the present case. 14. Learned Counsel for the Petitioner has relied upon the decision in the case where the information was one which was of the nature as the prior information as contemplated under Section 42 (1) of the N.D.P.S. Act, which is not the present case. Those decisions are therefore clearly distinguishable on the facts and circumstances of the present case. Therefore, I am unable to uphold the contention of learned Counsel for the Petitioner that the mandatory provision contained in Section 42 (2) of the N.D.P.S. Act has been violated or have vitiating effect on the trial and the ultimate conviction of the Appellant. 15. In so far as contention with regard to alleged violation of principle contained in Section 57 of the Act is concerned, the same cannot be accepted. Investigating Officer R.K. Rai (P.W.4) has deposed that ganja was seized on 12.10.1994 on the road near village Sambalpuri and thereafter search was carried out and the seizure was effected, dehati nalishi was recorded and sealed ganja, first information report, other documents relating to compliance of Section 50 of the N.D.P.S Act, seized documents, seized cycle and the accused/Appellant was sent to the police station Hirri through Head Constable Lallan Singh and thereafter recorded his return in rojnamcha sanha at Sr. No. 357 dated 13.10.1994 (Ex. P-13) and even before that, the written information of seizure and arrest was given to SDO (P) Kota -vide Ex. P-14. The contents of Ex. P-14 show that the S.H.O. informed the SDO (P) that upon information receipt, 4 kg. ganja was seized from the Appellant at Sambalpuri and the seizure was made at Sambalpuri road and a case of commission of offence was recorded at the spot. The said information has been written and signed by R. K. Rai (RW.4) and proved by him. The same contains an endorsement on the same date by SDO (P) Kota in his signature. The aforesaid evidence of the Investigating Officer has not been controverted in his cross examination. Therefore, relying upon the judgments in the case of Narayanaswamy Ravishankar v. Asstt. Director, Directorate of Revenue Intelligence 2003 Cri. LJ. 27. I am of the opinion that there is substantial compliance of provision contained in Section 57 of the N.D.P.S. Act. 16. The aforesaid evidence of the Investigating Officer has not been controverted in his cross examination. Therefore, relying upon the judgments in the case of Narayanaswamy Ravishankar v. Asstt. Director, Directorate of Revenue Intelligence 2003 Cri. LJ. 27. I am of the opinion that there is substantial compliance of provision contained in Section 57 of the N.D.P.S. Act. 16. Learned Counsel for the Appellant has also contended that as the seizure has not been proved by independent witnesses Ravishankar (P.W.2) & Shivkumar Tiwari (P.W.3), the seizure itself has become extremely doubtful and no conviction could be sustained on such doubtful seizure particularly when the statement of the Investigating Officer-R.K. Rai (P.W.4) does not inspire confidence and is not corroborated by other proved circumstances of the case. Learned Counsel relies upon the judgment in the case of Jagdish v. State of M.P. (2003) 9 SCC 159, Ritesh Chakarvarti v. State of Madhya Pradesh 2006 Cr.L.R. (SC) 874. In the present case the prosecution produced P.W.2 & P.W.3 as independent witnesses of seizure of contraband - ganja from the Appellant. Ravishankar (P.W.2) has not supported the case of the prosecution and has been declared hostile though he has admitted his signatures in Ex.P-2, seizure memo and Ex P-3, talashi panchnama. He deposed that as the police inspector told him that ganja has been seized he put his signature in document. In his cross-examination he denies that he had accompanied the police team or any seizure was made in his presence. Shivkumar Tiwari (P.W.3) in his cross-examination deposes that no search or seizure was made in his presence and he has been declared hostile. In his cross-examination, he states that as he has put his signature on Ex. P-2 & P-3 without reading and understanding the contents of the same and his signature were taken in the night. When he was confronted with the fact that giving false evidence is an offence, thereafter, he deposes that he is not able to tell the true facts as he has been threatened by the accused that if he speaks against him, he would be murdered. He then proceeded to depose and support the case of the prosecution with regard to search and seizure and preparation of samples. The investigating officer R.K. Rai (P.W.4) has deposed that he had searched and then seized the contraband article from the Appellant. He then proceeded to depose and support the case of the prosecution with regard to search and seizure and preparation of samples. The investigating officer R.K. Rai (P.W.4) has deposed that he had searched and then seized the contraband article from the Appellant. His testimony with regard to seizure inspires confidence and there is no other aspect so as to suspect genuineness of seizure. In the case of Ritesh Chakarvarti 2006 Cr.L.R. (SC) 874. (supra), the Supreme Court emphasised that in a case under N.D.P.S. Act, recovery of contraband in the presence of independent person assumes importance. The two witnesses of seizure had turned hostile. Relying upon the decision in the case of Jagdish (2003) 9 SCC 159 (supra) and taking into consideration other discrepancies, benefit of doubt was given to the accused. In the case of Jagdish (2003) 9 SCC 159 (supra), independent seizure witnesses were found to have turned hostile. The Supreme Court held that it would not be safe to conclude that the prosecution established the case against the accused beyond reasonable doubt. Learned State counsel argued that even if panch witness does not support, conviction can be sustained where seizure is proved by seizing authority, placing reliance upon the judgment in the case of P.P. Fathima v. State of Kerala (2003) 8 SCC 726, in the opinion of this Court, in view of the testimony of R.K. Rai (P.W.4), seizing authority and that of Shivkumar Tiwari (P.W.3), regarding seizure made, ratio laid down in the case of P. P. Fathima (2003) 8 SCC 726 (supra) are clearly applicable. The factual aspects and circumstances in the cases of Ritesh Chakarvarti 2006 Cr.L.R. (SC) 874. (supra) and Jagdish (2003) 9 SCC 159 (supra) were different. 17. The next submission of learned Counsel for the Appellant which requires consideration is that the mandate of Section 55 of the N.D.P.S. Act with regard to safe custody of the seized articles and sample which were sent for chemical analysis to F.S.L., has been violated and there are several discrepancies which make it extremely doubtful that the seized article and sample were kept in safe custody. Learned Counsel for the Appellant argues that the officer in-charge of the police station, (P. W.4), who is the investigating officer of the case, instead of affixing his seal on the sample has stated to have sealed the sample with the seal of police station, though he was possessed of his own seal and there is no explanation as to why the statutory mandate was not complied with. Learned Counsel for the Appellant further submits that the seized contraband were not marked as article nor were produced in the Court. He also submits that there is no proof that the seal on the sample was deposited in the Malkhana along with sample nor is there any proof of seal separately sent to the FSL for comparison. He also submits that even in the report of FSL, there is no mention that the seal was compared. It is also argued that link evidence is completely missing as neither the Malkhana register has been produced as a proof of deposit of the seal packets, samples and the seal nor any evidence has been led by the prosecution nor the person who is alleged to have taken the sample for chemical examination has been examined. It is also argued that even Malkhana Moharrir has not been examined. Learned Counsel further contended that the seal was not even produced in the Court. Learned Counsel also argues that there was delay in sending the sample. He argues that the cumulative effect of all these discrepancies with regard to sealing of sample and safe custody, the case of the prosecution becomes highly doubtful, benefit of which has to be extended to the Appellant/accused. He has placed reliance on number of authorities viz. Noor Aga v. State of Punjab and Anr. 2008 AIR SCW 5964, State of Rajasthan v. Daulat Ram AIR 1980 SC 1314 : (1980) 3SCC 303 State of Rajasthan v. Gurmail Singh (2005) CCR 228 (SC) & Remgul @ Remulal S/o Noorgul and Anr. v. State of M.P. 2003 Cr.L.R. (M.P.) 26 18. The Investigating Officer, who was the officer in charge of the police station and who seized the contraband has been examined by the prosecution as P. W.4. In his cross-examination he has stated that seized ganja was sealed with the seal of the police station. In his cross-examination, he admits that he has seal in his own name. The Investigating Officer, who was the officer in charge of the police station and who seized the contraband has been examined by the prosecution as P. W.4. In his cross-examination he has stated that seized ganja was sealed with the seal of the police station. In his cross-examination, he admits that he has seal in his own name. The mandate of Section 55 requires the officer in-charge of the police station to seal the sample with his own seal. However, no explanation has come forth from the prosecution even in the cross-examination of R.K. Rai (P.W.4) as to why the officer in-charge did not affix his seal as required under Section 55 of the Act. This aspect assumes importance as in the cross-examination, a suggestion has been given that the incident happened in the night at some other place and the accused was sent to the police station along with the constable and the Investigating Officer had gone to Sakari where signatures of the witnesses were taken on all the documents. Section 55 of the Act of 1985 requires the officer-in-charge of police station to take charge of and keep in safe custody all seized articles. The statutory scheme of the act engrafted under Section 55 requires the officer-in charge of the police station to seal all the samples with his own seal. The legislative intention is that there should be fair investigation for keeping the seized article in safe custody of the highest officer of the concerned police station so as to eliminate the possibility of the sample being tampered with till the same reaches the hands of the chemical examiner. Under provision contained in Section 55 such a duty has been enjoined upon the officer in-charge of the police station with the manifest object that the senior officers can be trusted to be fair in investigation and not indulging in dubious practices. When the prescribed procedure is abandoned, it gives rise to gnawing suspicion particularly when in the present case, the officer in-charge/S.H.O. himself had seized the articles. 19. The purpose and object of the provision contained in Section 55 of the N.D.P.S. Act is to rule out any possibility of tampering the sample as stringent provisions with regard to punishment for offence under the Act have been made. The sanctity of the sample therefore has to be proved by the prosecution by leading thorough evidence. 20. 19. The purpose and object of the provision contained in Section 55 of the N.D.P.S. Act is to rule out any possibility of tampering the sample as stringent provisions with regard to punishment for offence under the Act have been made. The sanctity of the sample therefore has to be proved by the prosecution by leading thorough evidence. 20. The other discrepancy in the case of the prosecution is that there is evidence on record led by the prosecution with regard to deposit of the seal in the Malkhana. Though B. L. Pandey (P.W. 1) has deposed that the seized articles in sealed conditions were given to H.C.M. Shri Aitwa Kujur for safe custody in Malkhana vide memo of Ex. P-2, he has not stated that the seal was deposited along with the sample in the Malkhana. Even the Investigating Officer does not depose in his testimony that along with the sample, seal was also deposited in Malkhana. The prosecution has neither produced the relevant Malkhana register containing relevant entries in order to prove deposit of seal, sample, seized articles nor concerned Malkhana Moharir to whom the seized article and samples were handed over has been examined. Ex. P-2 also does not contain any such endorsement of depositing of seal in the safe custody. 21. From the evidence of R.K. Rai (P.W.4), it is revealed that the sample of seized ganja was sent to F.S.L. under memo dated 10.11.1994 of the Superintendent of Police, Bilaspur. However the officer who had taken the sample from the Malkhana for being deposited in the F.S.L. has not been examined. A perusal of the Ex.P-8 shows that there is no mention of sending the seal along with the sample. It records the name of constable No. 729 Kumar Singh. Ex. P-9 which is acknowledgement of receipt of sample alleged to be submitted by said constable along with seal has been marked as Ex. P-9. It refers to sealed article A & B received along with seal. The report of Ex.P-11 nowhere mentions that the seal on the samples sent for chemical examination were compared with any separate seal sent along with the sample. The prosecution has neither examined the concerned constable Kumar Singh nor the Analyst. P-9. It refers to sealed article A & B received along with seal. The report of Ex.P-11 nowhere mentions that the seal on the samples sent for chemical examination were compared with any separate seal sent along with the sample. The prosecution has neither examined the concerned constable Kumar Singh nor the Analyst. Though for proof of the contents of the report, examination of the Analyst is not necessary in view of the provision contained in Section 293 of the Code of Criminal Procedure yet in the peculiar circumstances of the present case, where there is no evidence as to whether the seal was sent for comparison along with the sample and if at all, any such comparison was made to identify that the sample sent for chemical examination were the same which were seized from the Appellant, such aspect assume importance and absence of such proof becomes relevant consideration. In fact the prosecution has not proved the link evidence as to who was entrusted the sample by the Malkhana Moharrir. From the order of learned Court below, it is not found that the seal was produced in the Court. It cannot be ignored that though the ganja is alleged to have been seized and deposited in Malkhana on 12.10.1994 it was sent for chemical examination after almost one month. 22. B.L. Pandey (P.W.1) has clearly deposed in his cross-examination that the articles received by him contained seal of the police station and no other seal was impressed on it. There is yet another glaring discrepancy. Shivkumar Tiwari, P. W.-3 who has been examined by the prosecution to prove seizure of articles and preparation of sample, deposed in the Court, on article and sample being produced, that the samples were marked as article ? & ? and sealed. However, a perusal of Ex P-10 and Ex. P-l 1 mention the article as A & B. Cumulative effect of the aforesaid serous discrepancies in the matter of affixation of seal, custody of the articles, sending of sample to FSL and chemical examination, in the considered opinion of this Court, is utter violation of the statutory mandate as contained in Section 55 of the N.D.P.S. Act with regard to safe custody of the sample and prosecution case becomes extremely doubtful. 23. 23. In the case of Noor Aga AIR 2008 SCW 5964 (supra), the Supreme Court after noticing the several discrepancies in the case of the prosecution particularly with regard to the sampling, sealing and safe custody of the seized article and sample observed as under: 129...(ii) The seal, which ensures sanctity of the physical evidence, was not received along with the materials neither at the malkhana nor at CFSL, and was not produced in court. 130. Physical evidence of a case of this nature being the property of the court should have been treated to be sacrosanct. Non-production thereof would warrant drawing of a negative inference within the meaning of Section 114(g) of the Evidence Act. While there are such a large number of discrepancies, if a cumulative effect thereto is taken into consideration on the basis whereof the permissive inference would be that serious doubts are created with respect to the prosecution's endeavour to prove the fact of possession of contraband by the Appellant. 133. The High Court, however, opined that the physical evidence was in safe custody. Such an inference was drawn on the basis that the seals were intact but what was not noticed by the High Court is that there are gaping flaws in the treatment, disposal and production of the physical evidence and the conclusion that the same was in safe custody required thorough evidence on the part of the prosecution which suggests that the sanctity of the physical evidence was not faulted. It was not done in the present case.... 24. In the case of Gurmail Singh I (2005) CCR 228 (SC) (supra), it was held that the accused was rightly acquitted taking into consideration that the prosecution failed to prove 'hat the link evidence adduced by the prosecution was not at all satisfactory, as Malkhana register was not produced to prove that the narcotic article was kept in Malkhana and as no sample of seal was sent along with sample to F.S.L. for comparing with seal appearing on samples. In the case of Daulat Ram AIR 1980 SC 1314 : (1980) 3 SCC 303 (supra), the Supreme Court has observed thus: non-examination of witnesses in whose possession the sample remained, would be fatal to the prosecution. In the case of Daulat Ram AIR 1980 SC 1314 : (1980) 3 SCC 303 (supra), the Supreme Court has observed thus: non-examination of witnesses in whose possession the sample remained, would be fatal to the prosecution. The inevitable fact of omission was that the prosecution failed to rule out the possibility of the sample to be changed or tampered with during the period in question. 25. Similar is the view taken by High Court of Madhya Pradesh in the case of Remgul @ Remulal 2003 Cr.L.R.(M.P.) 26 (supra). 26. In view of the aforesaid discussions, this Court is unable to uphold the judgment of conviction and sentence awarded to the Appellants by the learned trial Court. 27. In the result, the appeal is allowed. Impugned judgment of conviction and order of sentence is set aside and the Appellant is acquitted of the charges framed against him. 28. As the Appellant is on bail, he need not surrender and his bail bond stands discharged. 29. A copy of this order be placed in the records of connected Criminal Appeal No. 1635/1995.