JUDGMENT 1. - Appellant assails his conviction recorded for violation of Section 8 punishable under Section 21, NDPS Act (hereinafter called as the Act') and awarded sentence of 12 years' rigorous imprisonment with fine Rs. 1,20,000/- (Rupees one lac twenty thousand only), in default of payment, one year's rigorous imprisonment. 2. Heard arguments of the learned counsel for the appellant and also learned Public Prosecutor. 3. Prosecution case as unfolded in trial and per prepared memo somewhat like this that on 19.11.2004 at 7 O'clock in morning, SHO, Police Station, Kotwali, Sri Ganganagar PW 8, making rojnamcha entry Ex.P26 and along with constable PW 6 Sarabjeet Singh, Baljeet Singh PW 7 and driver was on patrol who when was around Nehru Garden, at 8 O'clock, received some secret information which written by him as Ex.P22 to the effect that Yogesh Mehta, indulging in dealing of smack possesses and instantly at his can be found house good quantity of smack. Inspector PW 8, preparing other memo Ex.P21, forwarded copy of Ex.P22 to the Superintendent of Police, with constable PW 7 who as the S.P. was not at his residence, so delivered i1 to the Additional S.P., obtaining receipt on Ex.P21. PW 7 returned at about 9 O'clock, meanwhile, called and asked PW 4 and Sandeep PW 5 of his intention to retain them as an independent witnesses and seeking their consent vide memos Exs.P9 and 17. All proceeded for and arrived at about 9.15 for search at house No.79, Mukherjee Nagar Per prosecution, appellant found there at his home who looking them becoming restless quickly opened mid button of his shirt and put in abdominal area a small packet. Observing so and intending to search accused, Inspector PW 8 at 9.25 asked and informed accused through memo Ex.P10 of his (PW 8) intention to search him (accused) and house and if (accused) so desires, his search can be before a magistrate or a gazetted officer and as accused expressed his willingness of search by inspector PW 8, so PW 8 effecting search of both motbirs before appellant and then searched person of appellant and per prosecution, found was a brown polythene bag in side his shirt in abdominal area which contained powder like substance appearing to be smack. As accused stated of no license, the same which weighed 682 gms, taken in possession of from which two samples each of 10 gms collected and sealed marking packets as "A" & "B" and remaining material, kept in same packet was sealed and packet marked as "C". Prepared memo of Seizure Ex.P12 and that memo bears signatures of motbirs PW 4 and PW 5 and also of accused, impression of seal used was affixed on recovery memo Ex.P12 and separate memo of seal impression too prepared, one of them being Ex.P20 and then seal used was sealed preparing memo Ex.P15 Informing accused of his arrest, he was arrested vide memos Exs. P13 and 14. PW 8 then reaching police station at about 12.15 making entries of all happenings and prepared memo Ex.P12 registered FIR Ex.P24, bearing No.584. Information under Section 57 of the Act Ex.P25 was forwarded to the S.P and packets along with seal impression handed over to malkhana in-charge PW 3 who making entires in register Ex.P8, safely kept in malkhana and then, on 20.11.04 making entries in register Ex.P8 handed over sample packet marked "A" to head constable PW 2 who along with letter to the S.P. Ex.P3 requesting for forwarding same to laboratory, carried packet to the office of the S.P., where head constable PW 1, comparing seal impressions on packet and with forwarding letter of S.P. to laboratory Ex.P1 returned back to PW 2 who on 22.11.04 depositing it at laboratory, Jaipur obtained receipt Ex.P6. Entries of above handing over and depositing malkhana at laboratory are made in rojnamcha. In course of investigation, PW 8, next day that is November 15th, visiting house where from recovered, prepared memo and site plan Ex.P19 and after other usual investigation charge sheet was filed. 4. Appellant charged for possessing 682 gms of smack and not having any license or permit, claimed trial. 5. Prosecution examined eight witnesses, described as above and exhibited documents Exs.P1 to P28. 6. Appellant explains eight witnesses are telling lie and he is innocent, at police station coercively made to sign on blank papers and then implicated in this false case. 7. Learned Special Judge inferred that search made per procedure, making all compliancies and in possession of appellant was 682 gms of smack, that is heroin and was without license. 8. 6. Appellant explains eight witnesses are telling lie and he is innocent, at police station coercively made to sign on blank papers and then implicated in this false case. 7. Learned Special Judge inferred that search made per procedure, making all compliancies and in possession of appellant was 682 gms of smack, that is heroin and was without license. 8. Micro chemical examination report of State Forensic Science Laboratory dated 4.7.05 is Ex.P28. Result of examination described is "the sample contained in the bag marked "A" gave positive tests of the presence of diacetylmorphine (heroin)." 9. Learned counsel for the appellant reading and taking the court through the statements of witnesses and different memos, argues that(i) provisions of Section 50 are mandatory and non-observance vitiates all proceedings-concerned person is to be made known of his right for search before the magistrate or gazetted officer- information or communication could not be formality one and should not be of any like to mandate or induce search only by the officer so informing him, -in the instant case, at best, only the superficial compliance is, (ii) according to prosecution, following receipt of secret information, search intended was of house and for such of any search, provisions of Section 42 are also be complied with, but not so -whatever did is highly suspicious, (iii) cannot be deemed that information to higher officer sent as is purported to have been and non-compliance of Section 57 and others. At length, argued that on notice Exhibit P-10 given to accused under Section 50, apparent is over writing over mentioned time, that is on 9.05 is 9.25 - recovery officer PW 8 admits so and reason assigned not worth acceptance- carbon copy furnished before Court to appellant exhibited as D5 mentions time of 9.05 over which by ink is over writing 9.25. Argues that copy of notice Ex.P10 not found in personal search of accused there made memo of which prepared Ex.P14 and this shows that no notice was given-further Ex.P10 was to the effect of search of house and also of person. Vehemently argues that all this prove of total non-compliance of Section 50. Further argues information purported to have been received and reduced in writing as Ex. Vehemently argues that all this prove of total non-compliance of Section 50. Further argues information purported to have been received and reduced in writing as Ex. P22 mentions of father's name, house number and name of locality and contains so minute details as to make highly questionable whether such an information was and then as per it Exhibit P22 if the information received was in so detail, then must have also disclosed of the polythene bag with or in clothes of accused as is allegedly recovered. Argues that thus, the procedure per Section 42 is also not followed and this vitiates whole trial and makes said search and recovery highly doubtful and the appellant is to be acquitted. In support of his contention, cited is Hon'ble Apex Court authority 2010 AIR SCW 6800, Vijaysinh Chandubha Jadeja v. State of Gujarat . 10. Learned counsel further argues that accused is not identified in Court by main witness PW 8- search was made at densely populated residential colony and though independent witnesses PW 4 and PW 5 are declared hostile,but of importance is that witnesses are not of the same locality and of distance 2-3 km and this adversely affect veracity of the prosecution police official witnesses- Ex.P8 mentions of and PW 2 with PW 3 speak of redepositing sample back on 20.11.04 after obtaining forwarding letter from the Superintendent office. This again handing over and taking over on 21.11.04 cast serious doubt, if the sample was same or remained intact and comparison of seals affixed ever done. Inviting attention of different very close times of receiving information at eight, preparing memos, forwarding information to higher officer and of handing over to Additional S.P. and then returning of,constable and meanwhile procuring motbirs of distance and then retiring of constable and meanwhile procuring motbirs of distance and then arriving at the house 9.05 or 9.25 (over writings) and all proceedings over by about 10.30 cast serious doubt when mentioned and expressed by the witnesses is different times and even ten-fifteen minutes make much effect. State that all these make recovery doubtful and recovery of from accused much more doubtful who alone and not any else of family member there,though family members found present next day when site again inspected by PW 8, makes highly doubtful recovery and recovery from accused. 11. Lastly and vehemently argued that per lab. State that all these make recovery doubtful and recovery of from accused much more doubtful who alone and not any else of family member there,though family members found present next day when site again inspected by PW 8, makes highly doubtful recovery and recovery from accused. 11. Lastly and vehemently argued that per lab. report which the only evidence of nature of substance- sample gave positive tests for the presence of diacetylmorphine but do not state percentage which essential for determining if it is counterfeit. Argues that report cannot of any help to prosecution, appellant is to be acquitted for this. In support of this contention, cited is one apex court authority 2008(2) WLC (SC) Cri. 265 : AIR 2008 SC 1720 , E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau and 2009(4) WLC (Raj.) 334, Smt. Nazma v. State of Rajasthan . 12. Learned Public Prosecutor, per contra, argues that received information was reduced in writing, higher officers were informed and then inspector proceeded for search. Argues that finding accused, keeping the packet in his shirt- then giving information of right and option orally and also in writing, as per wish, accused was searched and found substance in his possession is proved to be having diacetylmorphine. Argues that looking to quantum about 680 gm, percentage determination no significance and even if not done still seized substance containing good quantity of diacetylmorphine. Argues that chemical analysis proves that substance possessing has diacetylmorphine. 13. Anxiously considered arguments raised, carefully perused is evidence, record and judgment impugned. Regarding compliance and effect of partial or non- compliance or not so strict a compliance of provisions of Sections 42,50 and others is as held by Hon'ble Apex Court in various pronouncements, recent being Vijaysingh Chandubha Jadeja v. State of Gujarat, 2010 AIR SCW 6800 . For the present case, appropriate firstly to consider the later argument that is regarding non determination percentage quantity in the substance. 14. Appellant is charged and convicted for the offence of Section 21 of the Act. Quantum and extent of sentence substantially depends upon the quantity of the substance seize, as is provided in section and the principles well elaborated by Hon'ble Apex Court in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau (supra). 15. section 21 and sub-sections provide for extent and minimum of punishment for contravention in relation to manufacture of drugs and preparations. 15. section 21 and sub-sections provide for extent and minimum of punishment for contravention in relation to manufacture of drugs and preparations. Per sub-section(a) for small quantity, extent is six months and fine rupees ten thousand, sub-section(b) extends it upto ten years and fine rupees one lakh for quantity less than commercial and sub-section(c) provide minimum ten years and fine rupees one lakh for commercial quantities. 16. Appellant is charged for possessing heroin, also called as smack. Notified small quantity of heroin is upto 5 gm and commercial 250 gm or above. Quantity substantially effect quantum and also extent of punishment. Manufactured drug is defined means all coca derivatives or medicinal cannabis or opium derivatives or poppy straw concentrate and (b) any narcotic substance or preparation declared so. Opium derivatives is defined in section 2 (xvi) which means (a) medicinal opium (b)prepared opium (c) phenatherene alkatoids (d) diacetylmorphine heroin or its salts .(e) all preparations containing more than 0.2 per cent of morphine or containing any diacetyl morphine. 17. As is held by Hon'ble Apex Court in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau(Supra) and 2008(2) WLC (SC) Cri. 265 : 2009(2) SCC(Cri.) 54 , it is the net quantity of diacetyl morphine which determines quantum of sentence. Preparation containing manufactured drug in relation to a narcotic drug or psychotropic substance is preparation of one or more such drugs or substances which can be solution or mixture or any prepared state and contains one or more of such substances. Essentially, preparations have to be in relation to and of a substance narcotic, psychotropic or notified substance and narcotic drug,- means opium and manufactured, goods. Opium, prepared or medicinal opium and so on as described. Prepared opium and opium is to have juice or mixture of coagulate justice not including any preparation or mixture having less than 0.2 per cent of morphine. Therefore, content of morphine have to be at above 0.2 per cent. Diacetyl is opium derivable and minimum percentage 0.2. 18. In the instant case, no quantitative test appear to have been made. The analysis report in no way discloses percentage quantity and nothing is there to suggest quantity, intensity, concentration or like of diacetylmorphine or any such substance. As above, quantity of manufactured drug or preparation is essential for determining extent and quantum of punishment and for given substances, above 0.2 per cent is essential. The analysis report in no way discloses percentage quantity and nothing is there to suggest quantity, intensity, concentration or like of diacetylmorphine or any such substance. As above, quantity of manufactured drug or preparation is essential for determining extent and quantum of punishment and for given substances, above 0.2 per cent is essential. Effect of non-quantitative analysis also is held in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau (Supra). 19. Quantitative assessment not made as above not possible in any way is to determine the quantity of diacetylmorphine-and in other way, quantity of the substance possession of which is punishable under Section 21. There is nothing to suggest percentage of the elements and quantity. Determination of quantity is also essential for determining extent and quantum of punishment. In the instant case, appellant was arrested in 2004 and since is in detention, quantity allegedly recovered is 680 gm. Below 250 is intermittent essentially for which punishment may extend to ten years and fine upto rupees one lakh. For making upto 250 gm content of substance in the material have to be some what about 37%. As above, for determination of percentage or/and quantity lab. report or any other element do not exist. 20. Above being position, one of the essential elements for bringing in the substance within the definition, that is the quantitative analysis is looking to report Ex. P. 28 is not proved so. 21. Now is to be examined effect of the above lacking. Such being position, as above, direction for further evidence as envisaged under Section 391 Cr.PC. or of retrial partial or complete under section 386-A, could have been but against it is nearing six and half years (without remission applicable, if any applicable) of period of imprisonment so far - other questions raised, arising or likely to arise apart-now in considered opinion of the court, cumulatively taking above findings, appellant is to be acquitted. This finds support from Smt. Najma v. State of Rajasthan (supra). Therefore, for above reasons, accepting the appeal, the appellant deserves to be acquitted. 22. Looking to above findings, other questions raised regarding non-compliance of Section 50 or 42 or effect thereto etc., need not be gone into. 23. Therefore, accepting the appeal, conviction of appellant for the offence of section 21 NDPS Act and sentence awarded (cr. case No. 34/04-18.1.06-Spl Judge, Sriganganagar) is set aside. 22. Looking to above findings, other questions raised regarding non-compliance of Section 50 or 42 or effect thereto etc., need not be gone into. 23. Therefore, accepting the appeal, conviction of appellant for the offence of section 21 NDPS Act and sentence awarded (cr. case No. 34/04-18.1.06-Spl Judge, Sriganganagar) is set aside. Appellant Yogesh Mehta s/o. Shri Bihari Lai Mehta is acquitted of the offences charged for and he be directed to be released forthwith, if not wanted in any other matter.Appeal Allowed. *******