JUDGMENT 1. - Heard learned counsel for the accused appellant as well as learned Public Prosecutor. 2. The accused-appellant is aggrieved by the judgment dated 18.8.1989 passed by the learned Additional Sessions Judge, Chittorgarh (herein alter 'trial Court') in Sessions Case No. 108/1988, whereby learned Judge convicted the accused-appellant for offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as 'the N.D.P.S. Act') and sentenced him to undergo 10 years rigorous imprisonment and imposed a fine of Rupees One Lac and in default thereof to further undergo one year's rigorous imprisonment. 3. In short, facts of the case are that on 17.7.1988 in the night Bhanwar Lal (PW-4), Station House Officer of Police Station, Parsoli (Chittorgarh) received a Secret Information that a person of Mewar side would be carrying opium from road to Bhichor and Bhilwara via Bar. Upon receiving this information, the Station House Officer, Parsoli-Bhanwar Lal recorded the information in the Roznamcha at 2 A.M. and he himself further constituted a raiding party and proceeded towards the spot for cording of the area, along with Head Constables Rajendra Singh (PW-5) and Jamna Lal (PW-1), Constables Sohan Lal, Pushkar Lal (PW8) and Bhagwal Lal and Motbirs Mangi Lal Gurjar (PW-2) and Mehboob Khan (PW-13) 4. At around 5 A.M., a person came from towards Bhichor through a jig- jag path from hills. He was stopped and upon being challenged, he disclosed his name to be Koja Ram Jat. He was carrying a green colour bag on his head, which upon being searched, found to contain 3 green colour resin bags in it. Upon opening of those resin bags, again small bags were found in resin bags and it was found that they were containing soft substance, which was black in colour. When that substance was tasted and sniffed by the Station House Officer and Motbirs, as per prosecution story it was found to be opium. 5. Upon weighing, one bag was found to be 10 kilograms and the other 9 kilograms in weight. Two samples of 30 grams each were extracted from the opium and the seized substance as well as samples were sealed on the spot by seal of the Police Station, Parsoli, as per Recovery Memo (Ex.P-1). 5. Upon weighing, one bag was found to be 10 kilograms and the other 9 kilograms in weight. Two samples of 30 grams each were extracted from the opium and the seized substance as well as samples were sealed on the spot by seal of the Police Station, Parsoli, as per Recovery Memo (Ex.P-1). It is noteworthy that these samples were received at the F.S.L. for analysis and they were found to be weighing 60 grams and 85 grams respectively, as pet F.S.L. report Ex.P-8. 6. The accused-appellant was then arrested and seizure memo Ex.P-1 and recovery memo of opium was prepared. Then accused-appellant and the seized articles were brought to the Police Station and First Information Report No. 113/1988 (Ex.P-7) was registered for offence under Section 8/18 of the N.D.P.S. Act. 7. After thorough investigation, Police submitted a charge-sheet for offence under Section 8/18 of the N.D.P.S. Act. On 11.1.1989 charge under Section 8/18 of the N.D.P.S. Act was framed by the trial Court. The accused- appellant denied the allegation and claimed trial. 8. In support of its case, the prosecution examined 8 witnesses and exhibited 16 documents. Out of these witnesses, PW-2 Mangi Lal Gurjar and PW-3 Mehboob Khan, who were cited as motbir witnesses of recovery memo etc. turned hostile. PW-1 Jamna Lal (Head Constable), PW-5 Rajendra Singh (Head Constable) and PW-8 Pushkar Lal (Constable) were cited as witnesses of recovery as members of raiding party. PW-6 Praksh Chand (Constable) was cited as carrier of the samples to the F.S.L. for examination PW-7 Gopal Lal (Constable) was cited as in-charge of Malkhana of Police Station, Parsoli and PW- 4 Bhanwar Lal, Station House Officer of the Police Station, Parsoli was cited as Investigation Officer in this case. 9. In his statements under Section 313 Criminal Procedure Code , the accused-appellant submitted his explanation that Police had stopped him on the road of Bichor and had asked him name and no contraband article was recovered from him. He had come to this place from Marwar for grazing cattle. The defence examined four witnesses including accused-appellant himself. 10. 9. In his statements under Section 313 Criminal Procedure Code , the accused-appellant submitted his explanation that Police had stopped him on the road of Bichor and had asked him name and no contraband article was recovered from him. He had come to this place from Marwar for grazing cattle. The defence examined four witnesses including accused-appellant himself. 10. After scrutiny of material on the record and evidence produced by the prosecution as well as evidence adduced by the accused-appellant learned Additional Sessions Judge, Chittorgarh in the conclusion vide judgment impugned dated 18.8.1989 convicted him for offence under Section 8/18 of the N.D.P.S. Act and sentenced him as stated herein above. Feeling aggrieved against the judgment of conviction and sentence passed by he trial Court, the accused-appellant has filed present appeal before this Court. 11. Learned counsel for the accused-appellant submitted that learned trial Judge erred in placing reliance upon testimony of prosecution witnesses, solely Police officials. It is submitted that the impugned conviction is against the evidence on record. The accused-appellant had been falsely implicated when he had come to this place from Marwar for grazing cattle, The defence examined DW-1 Koja Ram (accused appellant himself), DW-2 Ladu Ram, DW-3 Babu Ram and DW-4 Anda Ram but learned trial Judge has not considered the defence evidence in its true sense. 12. Learned counsel for the accused-appellant also submitted that the accused-appellant has been falsely implicated in this case by Police because he had not fulfilled their illegal demand. Independent witnesses- PW-2 Mangi Lal Gurjar and PW-3 Mehboob Khan, motbirs of Recovery Memo Ex.P-1 have not supported the prosecution case and this case totally rests upon evidence of Police officials, whose testimony is not worth reliance and as such, impugned conviction of the accused -appellant cannot he based upon such evidence. There are major contradictions in the statements of Police department's witnesses and the prosecution failed to comply with the mandatory provision of Sections 42, 55 and 57 of the N.D.P.S. Act. 13. Learned counsel for the accused-appellant further contended that the seals used for seized articles are supposed to be given to independent witness. The seals are not meant to be kept either with the Investigating Officer or with the Malkhana in-charge. In case seals are left with the Investigating Officer or Malkhana In-charge, the possibility of tampering with the samples cannot be ruled out. The seals are not meant to be kept either with the Investigating Officer or with the Malkhana in-charge. In case seals are left with the Investigating Officer or Malkhana In-charge, the possibility of tampering with the samples cannot be ruled out. The impression of seals were not prepared and not sent to the F.S.L. for comparison of the seals. Thus, alleged recovery contraband from possession of the accused-appellant becomes doubtful and the prosecution failed to prove that said seized article was contraband opium as defined under the N.D.P.S. Act. In the above context, learned counsel for the accused-appellant relied upon decisions rendered in the case of Paras Mal v. State of Rajasthan, 2010(1) Cr.L.R. (Raj.) 158 ; Jagdish & Anr. v. State of Rajasthan, 2011 (1) Cr.L.R. (Raj) 787 ; Pappu v. State of Rajasthan, 2006 (2) Cr.L.R. (Raj.) 1284 and Kailash & Anr. v. State of Rajasthan, 2006 (3) R.D.D. 1558 (Raj.) and prayed that the appeal be accepted and accused-appellant be acquitted of the offence charged against him. 14. On the other hand, Mr. Kamlesh Kumar Rawal, learned Public Prosecutor vehemently contended that the finding arrived at by the trial Court is based on evidence and the judgment of the Court below is correct. There is no infirmity or material contradiction, as such, it does not call for any Interference. Learned Public Prosecutor submitted that there is no reason to disbelieve the testimony of prosecution witnesses. He further submitted that the provisions of Sections 55 and 57 of the N.D.P.S. Act are merely directory in nature and not mandatory. The prosecution has complied with all the mandatory provisions of the N.D.P.S. Act and accordingly, from entire evidence and F.S.L. report Ex.P-8, it is proved that the samples were sent to the F.S.L. in sealed condition and the samples contained the same seized contraband article with the seal impression, which was sent to them by Police. Hence, contention of the learned counsel for the accused-appellant that the samples may have been tampered with, is without any basis, The contraband opium was recovered from the possession or the accused-appellant and learned trial Court has rightly convicted and sentenced him after appreciating the oral and documentary evidence in this case, 15. Hence, contention of the learned counsel for the accused-appellant that the samples may have been tampered with, is without any basis, The contraband opium was recovered from the possession or the accused-appellant and learned trial Court has rightly convicted and sentenced him after appreciating the oral and documentary evidence in this case, 15. I have given my thoughtful consideration to the submission mane by the learned counsel for rival parties and carefully perused the evidence, record of the case, and the impugned judgment of conviction and sentence passed by the Court below and the case law cited by the learned counsel for the accused- appellant. 16. It is settled canon of criminal jurisprudence that when a safeguard or a right is provided favouring an accused, thereto should be strictly construed, Non-compliance of such provisions would cause prejudice to the accused- appellant. In the instant case, search and seizure has been carried out by PW-4 Bhanwr Lal Station House Officer of Police Station Parsoli and said witness does not even depose in his evidence that said information received by him was reduced into writing or was forwarded to his immediate superior, therefore, admittedly, the mandatory provisions of Section 42 have not been followed by the prosecution in this case. In view of provisions of the N.D.P.S. Act, where unlawful possession of a contraband amounts to an offence and is punishable with rigorous imprisonment, for terms which shall not be less than 10 years and can extend to 20 years, in addition to fine, which shall not be less than rupees One Lac, which may extend to rupees Two Lacs; on a charge of possession of contraband substance, if it is established that the accused had contraband in his possession without authority, he is liable to be punished. 17. Unlawful possession of the contraband is sine qua none for recording conviction under the N.D.P.S. Act and the most important ingredient of an offence under the Act, explaining concept of possession the prosecution has to be careful and has to establish its case firmly, to bind down guilt of the accused person. It cannot argue on the basis of "may be, yes, perhaps not" However, for these reasons, the prosecution has failed to prove its case beyond reasonable doubt in this case, 18. The requirement of Section 42 of the N.D.P.S. Act is not merely technical one. It cannot argue on the basis of "may be, yes, perhaps not" However, for these reasons, the prosecution has failed to prove its case beyond reasonable doubt in this case, 18. The requirement of Section 42 of the N.D.P.S. Act is not merely technical one. In fact, Section 42 of the Act requires substantial compliance and it is mandatory provision. The N.D.P.S. Act is almost draconian law and large number of safety precautions have been prescribed by the Act itself. The first and foremost precaution is that the moment Police receives such information from an informant, it is legally bound to inform the higher authority. This requirement is Lald down in order to check the excesses of Police and to ensure that Police does not falsely implicate a citizen. This requirement also places a burden on the higher authorities to supervise functioning of subordinate officials. Hence, this requirement is both in the interest of the accused as also in the interest of officials of Police department. 19. A perusal of statement of PW-4 Bhanwar Lal, who is Investigating Officer also, clearly reveals that he did not inform to his higher authority and even not reduced the information in writing nor Roznamcha has been produced before the trial Court. So, the prosecution failed to prove compliance of the provisions of Section 42 of the N.D.P.S. Act in this case. 20. According to Section 42 (2) of the Act, any information taken down in writing under sub-section (1) of Section 42, for the grounds recorded by the person for his belief under the proviso thereto, it has to be sent to immediate superior officer within a period of 72 hours, in the present case, since PW-4 Bhanwar Lal, Station House Officer of Police Station, Parsoli proceeded to search, he was required to record his reasons for his believe under the proviso and also required to transmit those reasons to his immediate superior officer within a period of 72 hours yet there is no evidence on record to prove that the mandatory provisions of Section 42 of the N.D.P.S. Act has been followed and the superior officer was duly informed of the reasons of belief of P.W-4 Bhanwar Lal, I husband the requirement of Section 42 of the N.D.P.S. Act has not been fulfilled in this case. 21. 21. Section 51 of the N.D.P.S. Act lays down that provisions of the Code of Criminal Procedure shall apply in so far as they are not inconsistent with the provisions of N.D.P.S. Act, therefore, the provisions contained in Sections 100 and 165 Criminal Procedure Code are applicable to search and seizure tinder this section of the N.D.P.S. Act. Thus, following conditions should be followed as far as possible at the time of search and seizure etc. under this Section: (i) the search should be conducted by the officer empowered to conduct search and seizure under Section 42 of the N.D.P.S. Act; (ii) two independent and respectable persons of the locality shall be joined before conducting the search, seizure or arrest; (iii) the officer about to make search should give his own search and search of witnesses of the person before search, if the person to be searched was present for possession of contraband; (iv) the reason of belief should he recorded by the empowered officer before conducting search and seizure without warrant; (v) when any officer, duly authorised under Section 42 of the Act, is about to search any person under this section, he shall, if such person so requires, take such person without unnecessary delay, to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (vi) any person arrested under this section shall be informed of the grounds of his arrest as soon as may be possible by the officer arresting him; (vii) every person arrested and articles seized under this section shall be forwarded, without unnecessary delay, to the Officer in-charge of the nearest Police Station or the officer empowered under Section 53 of the Act, with the powers of in-charge of the Police Station, (viii) a Officer in-charge of a Police Station shall take charge and keep in safe custody, pending orders of the Magistrate, all articles seized under this Act, within 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 from them and all samples so taken shall also be sealed with the seal of the Officer in- charge of the Police Station (Section 55) In this case, above points have not been complied with strictly. 22. The provisions of Sections 41, 42, 43, 50, 51 and 55 of the N.D.P.S. Act provide safeguard against arbitrariness and contravention thereof may cause prejudice to the person arrested and thus, may vitiate the Investigation and the trial; therefore, the earlier view, was that these provisions of the Act, being mandatory, have to be strictly construed. However, now the matter has been finally settled by Hon'ble Apex Court by holding that the provisions of Section 50 of the Act are mandatory while those of Sections 52 and 57 are directory but in spite of this, the provisions cannot be ignored completely and will have bearing on appreciation of evidence regarding arrest of the accused or seizure of articles So, non-compliance of Section 42 of the N.D.P.S. Act is fatal in this case and also caused prejudice to the accused-appellant. 23. Section 55 of the N.D.P.S. Act is important, containing provisions regarding action to be taken by the Officer in-charge of the Police Station in respect of article seized and delivered. This is an important Section and will have to be referred to in reference to the evidence on record and as such, I deem it necessary to quote aforesaid Section, which runs as follows: "55. This is an important Section and will have to be referred to in reference to the evidence on record and as such, I deem it necessary to quote aforesaid Section, 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." 24. It Is clear from the provision stipulated by aforesaid Section 55 of the Act that it is compulsory on the part of the Officer in-charge of the Police Station to allow the officer bringing the seized articles to the Police Station to affix his seal The Officer in-charge of the Police Station is under statutory obligation to allow such officer to take a quantity of the sample as safeguard against tampering with of the article seized and deposited. The Officer in-charge is also duty bound to affix his own seal, Clear purpose of such provision vide Section 55 of the Act is to ensure that samples of the case property are not tampered with at any stage. 25. The provisions of Section 55 of the N.D.P.S. Act cannot he treated as empty formality, rather a substantive provision to ensure authenticity of the recovery, by making senior officer responsible for the proceedings of sampling, sealing and deposit into Malkhana and any violation of such provision would vitiate the investigation and consequently the prosecution, even though the provisions of Section 55 of the Act are directory in nature, as held in T. Pail Kiki v. State of West Bengal, 1993(3) Crimes 660. 26. From the perusal of evidence, it is clear that PW-2 Mangi Lal Gurjar and PW-3 Mehboob Khan, independent motbirs of Ex.P-1 Recovery Memo, turned hostile and are not supporting the prosecution story. Rest of the witnesses are Police officials and there are some contradictions on various points in their statements. 26. From the perusal of evidence, it is clear that PW-2 Mangi Lal Gurjar and PW-3 Mehboob Khan, independent motbirs of Ex.P-1 Recovery Memo, turned hostile and are not supporting the prosecution story. Rest of the witnesses are Police officials and there are some contradictions on various points in their statements. PW-4 Bhanwar Lal Station House Officer of Police Station, Parsoli searched and seized alleged contraband article and he himself is the Investigation Officer of this case. It is also admitted fact that PW-4 Bhanwar Lal, SHO was person in this case who lodged the F.I.R at the Police Station, Parsoli as complainant, who is also Recovery Officer and without taking necessary orders from superior officers, he himself started investigation and after completing the investigation, filed charge-sheet against the accused-appellant. So, in this case, investigation cannot be said to be fair and reasonable and as such, creates doubts in the prosecution story of recovery of contraband article. As per Section 55 of the N.D.P.S. Act Recovery Officer has not affixed his own seal on seized articles and he has not handed over seal of the Police Station to motbirs or Malkhana in- charge; hence, compliance of Section 55 of the Act has also not been made in this case. 27. Learned counsel for the accused-appellant contended that Section 57 of the N.D.P.S. Act provides that whenever any Police Officer makes any arrest of seizure under this Act, he shall, within 48 hours after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to the immediate superior officer but in the instant case there is no compliance of this provision of the Act. 28. Further, Section 57 of the N. V.F.S. Act stipulates as tollows. "57. Report of arrest and seizure.-Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars is of such arrest or seizure to his immediate official superior." 29. 28. Further, Section 57 of the N. V.F.S. Act stipulates as tollows. "57. Report of arrest and seizure.-Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars is of such arrest or seizure to his immediate official superior." 29. It appears that there is non-compliance of Section 57 of the Act as the information was required to he sent to the higher Police officials and in proof thereof, that the information requisite under Section 57 of the Act was actually sent to the higher Police Officials is required to be placed before the-Court; which has not been done in the present case as par evidence of prosecution witnesses. 30. It Is correct that compliance of this provision is not mandatory in view of decision rendered by Hon'ble Apex Court in the case of Gurbux Singh v. State of Haryana, AIR 2001 SC 1002 , wherein Hon'ble Supreme Court observed that it is true that the provisions of Sections 52 and 57 of the Act are directory and violation of these provisions would, ipso facto, vitiates the trial or conviction; however Investigation Officer cannot totally ignore these provisions and such failure will have a bearing on the appreciation of evidence regarding arrest of the accused or seizure and the case becomes doubtful. 31. As per PW-4 Bhanwar Lal, Station House Officer, Police Station-Parsoli, the samples taken from the seized contraband were 30 grams each whereas the samples received at the F.S.L. as per Ex.P-8 were weighing 60 grams and 85 grams respectively, in metallic containers but the samples at the time being drawn were sealed in metallic container has not been deposed by PW4 Bhanwar Lal. Admittedly, specimen memo of seal was neither prepared nor deposited with the Malkhana and not produced in the Court also and admittedly, was not sent along with the samples to the F.S.L. Therefore, there was no seal impression with the F.S.L. to compare with regarding intactness of the samples from the date of seizure till it is received by the F.S.L Hence, it cannot be held to be proved that seals found on the samples were, in fact, same as were put thereon immediately after seizure of the contraband. Thus, the prosecution failed to prove the case accused-appellant beyond reasonable doubt. 32. Thus, the prosecution failed to prove the case accused-appellant beyond reasonable doubt. 32. So, in the instant case, the tact of recovery of said contraband opium, which is required to be established, is not proved beyond reasonable doubt. Said recovery has riot been made as per procedure stipulated by the Statute, The prosecution evidence has material contradictions and prosecution version about search and seizure of the contraband opium from possession of the accused- appellant is wholly unreliable as per entire evidence on record. The prosecution also failed to prove that the samples were kept sealed and remained intact from the date of seizure till the date samples were deposited with the F.S.L. 33. It Is admitted position that the Investigation Officer PW-4 Bhanwar Lal has affixed seal of the Police Station on the samples and that seal remains in possession of Police officials of the Police Station. No specimen of the seal was taken and sent to the FSL and even not produced before the trial Court. Thus mandatory provisions of the N.D.P.S. Act have not been complied with in the present case. Moreover, both motbirs of Recover Memo turned hostile not supported the prosecution story. ' 34. I entirely agree with the learned counsel for the accused-appellant that the prosecution evidence on the point of possession of said contraband opium with the accused-appellant suffers from material contradictions and is wholly unreliable. The prosecution has failed to prove that the accused-appellant was found in possession of contraband article. 35. Hence, the finding of guilt arrived at by the trial Court is perverse, against evidence brought on record and is also in clear disregard of the settled propositions of law the conviction of the accused-appellant and sentence awarded to him by the Court below cannot be sustained. 36. In the result, the appeal is allowed and the conviction under Section 8/18 of the N.D.P.S. and the sentence against the accused-appellant Koja Ram S/o Krishna Ram vide impugned judgment dated 18.8.1989 passed by the learned Additional Sessions Judge, Chittorgarh in Sessions Case No. 108/1988 is set aside and the appellant is hereby acquitted of the charge of aforesaid offence. The-appellant is on bail. His bail bonds are discharged.Appeal Allowed. *******