JUDGMENT I.S. Shrivastava, J. 1. These appeals have been preferred by the appellants being aggrieved by the judgment dated 26.04.04 passed by the Court of Shri J.P. Maheshwari, Special Judge, (NDPS), and Ist A.S.J. Neemuch in Special S.T. No. 121/02 by which the appellants Shantilal and Chandmal have been convicted under Section 8/ 29 r/w Section 18(b) of the N.D.P.S. Act (for short the Act)., and have been sentenced to undergo R.I. For 10 years along with fine of ' 1,00,000/- (one lakh) and in default to undergo further R.I. For 4 years. Appellant Ramesh has been convicted under Section 8/ 29 of the Act, and has been sentenced to undergo R.I. For 12 years with fine of ' 1,00,000/- (one lakh). Appellant Bherulal has been convicted under Section 8/ 29 r/w Section 18(b) of the Act and has been sentenced with rigorous imprisonment of R.I. for 20 years along with fine of ' 2,00,000/- (two lakhs); in default of payment of fine, to undergo additional four years rigorous imprisonment by each appellant. These appeals are being decided by a common judgment as they have arisen from the same judgment. 2. According to prosecution story on 11.10.98 Shri Abhay Kumar Shrivastava, inspector Narcotic Department and Raju Chandra Dhakad driver received an information from the informer that Bherulal and Babulal are transporting 20 kg. of opium and will deliver it to Chandmal and Shantilal, on the basis of which a Panchnama of information of the informer was prepared and thereafter raid party along with witnesses reached Manasa Naka at about 4.00 a.m. At 4.30 a.m. two persons were seen coming on a motor cycle. They were intercepted and after verification of their names as Bherulal and Babulal, they were apprised of the information of the informer that in suspicion of the contraband substance, they and their plastic cane and motor cycle have to be searched. After obtaining their due consent for search, the container which was kept in between Bherulal and Babulal, was searched and in a polythene a black color substance was found which was said to be opium by Bherulal and Babulal. The preventive party also found it to be opium. Bherulal and Babulal informed that the container contained 20 kg. After obtaining their due consent for search, the container which was kept in between Bherulal and Babulal, was searched and in a polythene a black color substance was found which was said to be opium by Bherulal and Babulal. The preventive party also found it to be opium. Bherulal and Babulal informed that the container contained 20 kg. of opium which they are going to deliver to their companion Shantilal and Chandmal who are sitting at bus stand Neemuch who will proceed to Jodhpur where they will deliver it to Hanuman s/o Gangaram Vishnoi. 3. Thereafter some members of preventive party along with accused Bherulal and Panch witnesses reached Neemuch bus stand and on identification by Bherulal, Shantilal and Chamdmal were caught and brought to the place of incident. Thereafter Ku.Roma Ghoshal, Narcotic Inspector in presence of Bherulal, Babulal, Shantilal and Chandmal opened green color plastic cane by knife and 3 polythene bags were recovered from them which were told by the accused persons and preventive party as opium. On weightment first polythene bag was containing 6 kg., second bag was containing 6 kg. 250 gms. and 3rd bag was containing 5 kg. and 750 gms. of opium in all 18 kg. of opium. Out of these 3 polythene bags, 2 samples of 30 gms. each were taken out and they were marked as A1 and A2 and polythene bags were marked as Articles A, B and C. All the polythene bags along with samples A1 and A2 were sealed on the spot. Statement of accused persons were recorded. Thereafter raid party returned to the office where Crime No. 28/98 was registered. One sample A1 was sent to Govt. Opium and Alkaloid Factory, Neemuch by the report of which it was confirmed as opium. During investigation it was found that opium was brought to the house of Ramesh where 4 kg. of poppy husk was added to it to increase its weight. Bherulal, on interrogation gave information that he purchased 7 kg. opium from Sunderlal and Babulal purchased 7 kg. of opium from Rajaram. After completion of investigation, challan was filed against Bherulal, Shantilal, Chandmal, Sunderlal, Rajaram, Ramesh and Babulal. 4. Accused Babulal was released on temporary bail by the order of High Court in M.Cr.C. 3225/00 vide order dated 25.8.00 for 15 days. But he did not return hence he was declared absconding vide order sheet dated 25.11.02. 5. of opium from Rajaram. After completion of investigation, challan was filed against Bherulal, Shantilal, Chandmal, Sunderlal, Rajaram, Ramesh and Babulal. 4. Accused Babulal was released on temporary bail by the order of High Court in M.Cr.C. 3225/00 vide order dated 25.8.00 for 15 days. But he did not return hence he was declared absconding vide order sheet dated 25.11.02. 5. After trial, appellants Sunderlal and Rajaram were acquitted and remaining appellants have been convicted as mentioned above. 6. It has been argued on behalf of the appellants that they have been falsely implicated in this case. Memo under Section 27 of the Evidence Act Ex.P.8 identification Panchnama of accused Shantilal and Chandmal and seizure memo Ex.P.10 were defectively prepared. The independent witnesses have not supported the prosecution case and Panchnama Ex.P.6 to Ex.P.17 have not been proved by the independent witnesses. The independent witnesses were hostile. Bulk quantity of opium was not produced at the time of the evidence. The seizure memo Ex.P.10 was defectively prepared because initially accused Bherulal and Babulal were caught with the alleged opium and Shantilal and Chandmal were not present at that time. They were brought from bus stand by the police, hence seizure made from all the 4 accused persons was defective. Memo under Section 27 of the Evidence Act was not proved by the prosecution evidence. The sealing of the samples was defective. Statement under Section 67 of the Act was retracted by all the appellants. There was non-compliance of Section 52A and Section 55 of the Act. At the time of arrest of the accused Ramesh, his statement was recorded unauthorizedly by K.L. Khagna. He was not I.O. of the case. Accused Bherulal has been wrongly convicted as a previous convict. Under these circumstances appeal be allowed. 7. It has been argued on behalf of the respondent that the accused have been held guilty on the basis of evidence produced. The appeal being devoid of merits, be dismissed accordingly. 8. Considered the arguments and record of the trial court perused. Accused Bherulal has been wrongly convicted as a previous convict. Under these circumstances appeal be allowed. 7. It has been argued on behalf of the respondent that the accused have been held guilty on the basis of evidence produced. The appeal being devoid of merits, be dismissed accordingly. 8. Considered the arguments and record of the trial court perused. As regards the conviction of Bherulal is concerned, Bherulal has been convicted with R.I. of 20 years and fine of ' Two lakhs on the assumption that he was a previously convicted person under Section 8/ 18 of the Act probably with imprisonment of 13 years but from the perusal of the record it reveals that no such charge was framed against appellant Bherulal and the procedure under Section 236 of Cr.P.C. was not followed. According to Section 236 of the Cr.P.C. after conviction of accused in any S.T. Under Section 235 of Cr.P.C. the charge has to be framed against accused under the provisions of Section 211(7) of Cr.P.C. and if the accused does not admits the charge, then the Judge shall take evidence in respect of the previous conviction and shall record a finding thereon. No such procedure was followed by the trial court after conviction. No charge under Section 211(7) of the Cr.P.C. was framed and no evidence was recorded. No plea was recorded of the accused Bherulal. The court has on the basis of a letter of the Assistant Jailor of District Jail Chittorgarh assumed that Bherulal is convicted person in case of N.D.P.S. Act and has been convicted under Section 8/ 18 of the Act and sentenced with imprisonment of 13 years. To prove the fact of previous conviction, judgment of the concerned case is to be produced and the statement of relevant witnesses or I.O. should have been recorded. Appellant Bherulal should have been given an opportunity to defend himself in this respect and to explain the circumstances in the statement under Section 313 of the Cr.P.C. then a finding of the previous conviction cold have been recorded. Since the court has not followed the procedure as prescribed as per law, hence the fact that the accused Bherulal was a previously convicted persons in NDPS has not been proved. Therefore, on this ground only his conviction in this respect is not tenable. 9. According to the statement of seizing officer Ms. Since the court has not followed the procedure as prescribed as per law, hence the fact that the accused Bherulal was a previously convicted persons in NDPS has not been proved. Therefore, on this ground only his conviction in this respect is not tenable. 9. According to the statement of seizing officer Ms. Roma Ali PW.6, on 11.10.98 at Neemuch Manasa Naka at 4.30 motor cycle MP-14-3274 was intercepted. Two persons were riding on it and pillion rider was having a green colour container in between driver and him. Vehicle was driven by Bherulal and container was with Babulal. After confirming of the fact that container contained opium and they are going to deliver it to his companion Shantilal and Chandmal at bus stand. Ms. Roma Ali (PW.6) reached to bus stand with inspector N.S.Dhruv, a Panch witness and other members of raiding party along with accused Bherulal. There on verification by Bherulal she interrogated Shantilal and Chandmal. They told their names as such they were apprised with the fact that Bherulal and Babulal were likely to deliver them the opium. Thereafter she returned to the spot with Shantilal and Chandmal and green colour container was opened with the help of knife in which 3 polythene bags were recovered which contained opium. Ist bag contained 6 kgs., 2nd bag contained 6.250 kg. and 3rd bag contained 5.750 kg., in all 18 kgs. of opium was found. All the bags were marked as Article A, B, C, From the bags two mixed samples each of 30 gms. was prepared and they were marked as Article A1, A2. All the packets were sealed. Motor cycle and container were also seized. Seizure memo Ex.P.10 was prepared which bears her signatures and signatures of all the four accused persons. Panchnama Ex.P.6 to Ex.P.17 were prepared. 10. It has been argued by the appellants' counsel that independent witnesses of these Panchnamas Aslam PW.8, Mohd. Hayat PW.9 were hostile and they have not supported the proceeding taken up by the seizing officer Ms. Roma Ali PW.6. Considered the arguments. Aslam PW.8 has deposed that he does not know the accused Bherulal, Chandmal, Shantilal and Ramesh and also accused Babulal. Nothing was seized before him. They were not arrested before him. At the instance of narcotics officers he signed the papers. Ex.P.6 to Ex.P.17 bear his sitnagures. Roma Ali PW.6. Considered the arguments. Aslam PW.8 has deposed that he does not know the accused Bherulal, Chandmal, Shantilal and Ramesh and also accused Babulal. Nothing was seized before him. They were not arrested before him. At the instance of narcotics officers he signed the papers. Ex.P.6 to Ex.P.17 bear his sitnagures. He did not give statement A-A and B-B of Ex.P.27 to police. He has denied step-up-step proceeding taken by I.O. Mohd. Hayat PW.9 has deposed that he does not know accused Bherulal, Shantilal, Chandmal and Ramesh and Babulal. Nothing was seized from them before him and they were not arrested before him. He signed on papers at the instance of narcotics officers, Ex.P.6 to Ex.P.17 bears his signatures. Proceeding shown in these documents were not taken up before him. In this way both these witnesses have not supported prosecution case. 11. It has been argued that vide seizure memo Ex.P.10 opium has been shown to be seized from the possession of Bherulal, Babulal, Shantilal and Chandmal while Shantilal and Chandmal were not present at the time of seizure. Hence seizure is not reliable. Considered the arguments. From the above facts of the case it revels that at the time of seizure when accused Bherulal and Babulal were intercepted on motor cycle a green colour container was in between Bherulal and Babulal in the hand of Babulal. At that time Shantilal and Chandmal were not present. They were brought from Neemuch bus stand by seizing officer Ms.Roma Ali PW.6 and then seizure was shown from possession of all the four persons. While the correct position was not this. When the green colour container was in possession of the Babulal then no question arises for its seizure from Shantilal and Chandmal as they were not present there at that time. If Bherulal and Babulal were going to deliver it to Shantilal and Chandmal at bus stand then they might have been accused in this case by virtue of other sections but not in this way. Under these circumstances, preparation of Panchnama Ex.P.10 and fact of seizure of 18 kgs. opium from all the four accused persons is against the procedure and the actual position and hence seizure memo Ex.P.10 is not reliable in this respect. 12. Under these circumstances, preparation of Panchnama Ex.P.10 and fact of seizure of 18 kgs. opium from all the four accused persons is against the procedure and the actual position and hence seizure memo Ex.P.10 is not reliable in this respect. 12. According to Panchnama Ex.P.8 the memo under Section 27 of the Evidence Act it has been mentioned that Bherulal and Babulal gave information that they are going to deliver opium to Shantilal and Chandmal at the bus stand Neemuch. Hence memo Ex.P.8 was prepared. The independent witnesses Aslam PW.8 and Mohd. Hayat PW.9 have not supported the preparation of these Panchnamas. The place and time when and where it was prepared has not been mentioned in Ex.P.8. Signatures of all these four persons Bherulal, Babulal, Shantilal and Chandmal have been obtained on this Panchnama while as per facts of the case at the time of preparation of it Shantilal and Chandmal were not there. This shows that this Panchnama and memo Ex.P.8 were also prepared after arrival of Shantilal and Chandmal at Neemuch bus stand. Hence it is a concocted document and not reliable. Thus no interference can be drawn on the basis of this memo Ex.P.8. 13. As regards the production of property at the time of the evidence, only one sample Article B and container 'C' was produced in evidence. The bulk quantity packets A, B, C were not produced and no explanation for their non-production has been given. Under these circumstances, when independent witnesses have not supported seizure memo and the opium was wrongly shown to have been seized from all the four accused persons while the seizure memo Ex.P.8 was prepared wrongly against the factual position and bulk quantity property has not been produced at the time of evidence, it can not be said that the sample was prepared from the bulk quantity of opium contained in Articles A, B, C, Therefore, Panchnama Ex.P.10 was not legally proved as held by the Apex Court in the case of Ritesh Chakraworti v. State of M.P. II (2006) ACR 362, Jitendra and Anr. v. State of M.P. reported in 2004 (1) SCC 562, Abdul Gani v. State of M.P 2005 (2) JLJ 363 , Noor Aga v. State of Punjab 2008 (iv) AD 337 and State of M.P. v. Kanhaiyalal 2000 (1) MPWN 5 as well as in Laxminarayan v. State of M.P. 2009 JLJ 148 . v. State of M.P. reported in 2004 (1) SCC 562, Abdul Gani v. State of M.P 2005 (2) JLJ 363 , Noor Aga v. State of Punjab 2008 (iv) AD 337 and State of M.P. v. Kanhaiyalal 2000 (1) MPWN 5 as well as in Laxminarayan v. State of M.P. 2009 JLJ 148 . 14. As regards compliance of Section 52 of the Act is concerned, no such proceeding was taken up before Tahsildar. Property was not disposed of at pre-trial stage, hence it should have been produced at the time of the evidence in the Court. 15. This fact is also to be considered that when the opium was contained in polythene bags marked as Articles A, B, C, then why the samples were not prepared from each bag and why only two samples were prepared by taking out small quantity opium from Articles A, B, C. As per procedure two samples were to be prepared from each bag because till that time it was not confirmed that each bag marked A, B, C, was containing opium. Hence procedure adopted by seizing officer by preparing only two samples A1, B1 was defective and against the procedure. She should have taken out sample from each polythene bag. 16. As regards compliance of Section 55 of the Act, Abdul Samad Khan PW.1 has deposited the sample in Malkhana of the police station being incharge of it. He has deposed that on 11.10.98 he was Incharge of the Malkhana in the office of Dy. Narcotics Commissioner. On that date about 15.30 p.m. Inspector Smt. Ruma Ali deposited that samples Articles A1, A2 and 18 kgs. of opium in green colour plastic bag in sealed container and motor cycle which was entered in Malkhana register by inspector Suresh Badlani. He has further deposed that he took impression of the seal on Malkhana register in Column Number 9 which was used by the seizing officer. Abdul Samad PW.1 has not deposed that he re-sealed the property with seal of the Incharge of the Malkhana. In this way compliance of Section 55 of the Act, is not proved. 17. It has been also argued that the sealing of the samples was defective. Time and place were not mentioned on the Panchnamas that when they were prepared. Considered arguments. 18. In this way compliance of Section 55 of the Act, is not proved. 17. It has been also argued that the sealing of the samples was defective. Time and place were not mentioned on the Panchnamas that when they were prepared. Considered arguments. 18. In all the Panchnamas Ex.P.7 to Ex.P.17 the place and time of the preparation of the Panchnamas have not been mentioned. In cross examination Smt. Roma Ali PW.6 has deposed that on the seizure chit of the Article B, she has mentioned the time 10.00 a.m. but on the chit signature of Babulal has not been obtained but signature has been obtained on the envelop. Till 10.00 a.m. when the time was mentioned on the seizure chit, the opium was seized by her. Again she has said that she started proceeding at 10.00 a.m. Thereafter seizure chit was prepared. Whole proceeding took about 1-1/2 hours. This shows that when the proceeding started at 10.00 a.m. then all the Panchnamas were prepared and the sealing of the samples and packets were not done but this witness prepared all the documents including seizure chit on which she mentioned time as 10.00 a.m. This shows that arbitrarily without mentioning time and place of the incident all the Panchnamas were prepared. This procedure is defective. 19. From the notice under Section 50 of the Act, Ex.P.7 it reveals that on this notice time has been mentioned as 5.00 o'clock. Since all the proceedings were taken up in the morning hence it should be mentioned at 5.00 a.m. If at 5.00 a.m. appellants Bherulal, Babulal were intercepted and their consent under Section 50 of the Act was obtained then why the proceeding started from 10.00 a.m.? What they were doing till 10.00 a.m.? This also confirms the fact that Panchnama has been prepared arbitrarily. 20. It has been argued on behalf of the respondent that all the accused were interrogated. Appellants and their statements were recorded under Section 67 of the Act, which are admissible in evidence and on the basis of which appellants were liable to be convicted. 21. It has been argued on behalf of the appellants in this respect that all the appellants retracted from their confession by written application. Position of the statement of the witnesses is also suspicious. 21. It has been argued on behalf of the appellants in this respect that all the appellants retracted from their confession by written application. Position of the statement of the witnesses is also suspicious. On the statement of the witnesses there is a blank space after name of the witnesses and starting of the statement. Time when the statement was recorded has not been mentioned in it though the word 'Time' --- has been written on it which shows the intention that time was to be mentioned lateron but the concerned officer by mistake or negligence forgot or failed to mention it. Ramesh was arrested after 4 years of the incident and his statement was recorded by KL Khangna PW.5 while he was not investigating officer of the case. hence statement Ex.P.19 recorded by him, is not admissible in evidence. Considered arguments. 22. Smt. Ruma Ali PW.6 recorded statement of accused Bherulal Ex.P.22, Babulal Ex.P.23, Shantilal Ex.P.24 and Chandmal Ex.P.25. On all these statements time and place where they were recorded, has not been mentioned. On all these statements after writing name of the persons, in half bracket only time word has been mentioned and thereafter blank space has been left by the seizing officer and thus statement of the accused has been recorded. Smt. Ruma Ali PW.6 has admitted the fact that there is a space in statement Ex.P.22 to Ex.P.25 which are in hand writing but she has not explained why bracket has not been closed and nothing has been written in the space left by her. In the absence of time and place on the statements Ex.P.22 to Ex.P.25 it can not be said that they were actually recorded at the time of the investigation. These statements have not been recorded before any witnesses. The N.D.P.S. rules do not prescribe any procedure for the recording of the statement of the witnesses but there should be some guidelines in this respect because such type of statements are very hazardous to the person making it, they are admissible in evidence against the accused. In case of Jahida Bi (Smt.) v. CBN 2000 (2) EFR 742 (MP) the scope and evidentiary value of the statement has been discussed. In case of Jahida Bi (Smt.) v. CBN 2000 (2) EFR 742 (MP) the scope and evidentiary value of the statement has been discussed. The confessional statement, though retracted at the subsequent stage of the trial, can be used against the person making it if the court is satisfied that it was not obtained by threat, duress or promise. However prudence and practice require that the court would seek assurance getting corroboration from other evidence. 23. PW.10 Prashant Kamble has deposed that on 14.10.98 during the investigation he recorded statements of Bherulal, Babulal, Shantilal and Chandmal, Ex.P.30, Ex.P.31, Ex.P.32 and Ex.P.33 respectively. From order shet dated 10.11.98 it reveals that accused Bherulal, Babulal, Chandmal, Shantilal filed an application with respect to retraction of their statement. In this way all the accused persons have retracted their statement. Since seizure memo Ex.P.10 in all Panchnamas Ex.P.6 to Ex.P.17 are not reliable as has been discussed in above paras, therefore by these statements Ex.P.22 to Ex.P.25 and Ex.P.30 to Ex.P.33 are not of any use to the prosecution. 24. As regards statement Ex.P.19 of Ramesh is concerned, it has been argued on his behalf that he was arrested on 30.7.02 and from jail on 20.8.02 he has sent a letter about retraction of his statement Ex.P.19 from jail. He was arrested on 30.7.02 by K.L. Khangna PW.5. In this respect KL Khangna PW.5 has deposed that he recorded statement Ex.P.19 of Ramesh. He was appointed as I.O. in this respect. It has been argued on behalf of the appellants that Ramesh was arrested after 4 years of the incident suddenly in a checking along with accused Bherulal. At that time KL Khangna was not I.O. in this case. Hence he was not authorised to record statement of Ramesh. It must have been recorded by Prashant Kamble PW.10, investigating officer. 25. Considered the arguments. In this case Prashant Kamble PW.10 was appointed as investigating officer on 12.10.98 by the Assistant Narcotics Commissioner vider order dated Ex.P.29. KL Khangna PW.5 in cross examination has deposed that he was appointed investigating officer in this case by Superintendent before 17.00 hours when he recorded statement of Ramesh but no such appointment order has been produced by him in this respect. Hence adverse inference shall be drawn in this respect. 26. KL Khangna PW.5 in cross examination has deposed that he was appointed investigating officer in this case by Superintendent before 17.00 hours when he recorded statement of Ramesh but no such appointment order has been produced by him in this respect. Hence adverse inference shall be drawn in this respect. 26. The question arises that whether an officer of the Narcotics Department can record statement of accused under Section 67 of the Act at any time if he is not investigating officer in that case. From the statement of Prashant Kamble PW.10 it reveals that by order Ex.P.29 he was appointed as investigating officer in this case. This shows that to investigate in any crime under the Act by the officer of Narcotics Department, order of appointment is required authorizing him to investigate the offence. Hence on the same analogy there must have been an order in favour of KL Khangna PW.5 but since such order has not been produced hence an adverse inference should be drawn in this respect. Section 67 of the NDPS Act authorizes competent officers to call for the information from any person during the course of any enquiry in connection with contravention of of the provisions of NDPS Act. Hence during the course of enquiry only the information may be called and the officer should be entrusted with the enquiry of the case. Hence statement of Ramesh Ex.P.19 was recorded by an unauthorized person hence no presumption can be taken in this behalf. Further it has to be proved that the statement was not obtained by threat, duress or promise. According to Mrs.Ruma Ali (PW.6) she recorded the statements of Bherulal Ex.P.22, Babulal Ex.P.23, Shantilal Ex.P.24 and of Chandmal Ex.P.25 on the spot. At that time they were under the custody of officers of CBN, Shri Prashant Kamble (PW.10) recorded their statements Ex.P.30 to Ex.P.33 on 14.10.98 when the accused persons were in their custody on police remand after arrest. Hence such statements can not be said to be voluntary statements as held in the case of Union of India v. Bal Mukund and Ors. 2009 Cri.L.J. 2407 The retracted confession may form the basis of conviction if it receives some general corroboration from the other independent sources. It has also been discussed in earlier paragraphs that seizure Panchnama, seizure memo Ex.P.10 and all the Panchnamas prepared vide Ex.P.6 to Ex.P.17, are not reliable. 27. 2009 Cri.L.J. 2407 The retracted confession may form the basis of conviction if it receives some general corroboration from the other independent sources. It has also been discussed in earlier paragraphs that seizure Panchnama, seizure memo Ex.P.10 and all the Panchnamas prepared vide Ex.P.6 to Ex.P.17, are not reliable. 27. On the basis of above discussion I conclude that the appellants were not liable to be convicted on the basis of evidence produced before the trial court. Hence this appeal deserves to be allowed. Therefore, these appeals are allowed. Conviction and sentence of appellants Bherulal, Shantilal, Chandmal and Ramesh are hereby quashed. Consequently appellant Bherulal is acquitted from the charge under Section 8/ 18 of the Act and appellants Shantilal, Chandmal and Ramesh are acquitted from the charges under Section 8/ 29 r/w Section of the Act. They be released, if not required any other offence. Fine if deposited, be returned to them.