Ashwani Kumar Singh, J. – By judgment dated 20.4.2010 and order dated 21.4.2010 passed in Gaighat P.S. Case No. 122 of 2008 corresponding to T.R. No. 1 of 2010, the learned Additional Sessions Judge-IV, Muzaffarpur, convicted the appellants under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “the Act”) and sentenced them to undergo rigorous imprisonment for ten years with a fine of Rs. 1,00,000/- each and in default of payment of fine, they have been directed to further undergo simple imprisonment for ten months. The aforesaid judgment and order are under challenge in the present appeal. 2. The prosecution case is based on the self-statement of the Officer-in-Charge, Gaighat Police Station, recorded on 10.6.2008 at 11.30 a.m. in village-Beruwa in which he states that on the same date at about 9.30 a.m. he received a confidential information that Ganja was kept in the house of appellant no. 2 Umesh Ram. He entered the said information in the station diary and in order to verify the genuineness of the information, he proceeded along with the police party to village-Beruwa. At about 10 a.m., they reached to the house of the appellants in village-Beruwa. In the meantime, one lady came out of the house and on seeing the police party tried to escape. However, the police party intercepted her. On inquiry, she disclosed her identity as Jaikal Devi, wife of Umesh Ram. Her house was searched in presence of two independent witnesses, namely, Balwant Kumar and Pankaj Kumar Singh. The appellant Umesh Ram was not found inside the house. In course of search from an east facing room, 100 packets of different size containing Ganja were found kept on a ‘chowki’ covered with a bed-sheet. The total weight of the recovered Ganja was 7 quintals and 9 kgs. On inquiry, Jaikal Devi could not give any satisfactory answer for keeping the contraband in such a huge quantity in her house. A seizure list of the recovered Ganja was prepared in presence of the independent witnesses, who put their signature willingly over the same. Jaikal Devi was apprehended and brought to the police station. 3. On inquiry, Jaikal Devi could not give any satisfactory answer for keeping the contraband in such a huge quantity in her house. A seizure list of the recovered Ganja was prepared in presence of the independent witnesses, who put their signature willingly over the same. Jaikal Devi was apprehended and brought to the police station. 3. On the basis of the self-statement of the informant, a formal F.I.R. was drawn, being Gaighat P.S. Case No. 122 of 2008 on 10.6.2008 under Sections 20 and 22 of the Act at 12.30 p.m. against the appellants and the investigation of the case was handed over to P.W. 10 Vinay Kumar Das, a Sub-Inspector of Police. The police investigated the case and submitted its charge sheet pursuant to which, cognizance of the offence was taken. The appellants were charged on 18th February, 2009 for having committed an offence punishable under Sections 20(b) (ii) (C) of the Act, to which, they pleaded not guilty and claimed to be tried. 4. In course of trial, in support of the charge, in all, ten witnesses were examined on behalf of the prosecution. Out of them, P.W.1 Ramashish Kamti is the informant of the case, P.W. 2 Krishna Ram, P.W. 4 Pankaj Kumar, P.W. 5 Srikant Sharma, P.W.6 Manoj Kumar Paswan, P.W. 7 Raghunath Mishra, P.W.8 Abhinay Kumar and P.W. 9 Sanjeev Kumar Singh are the police personnel, who participated in the raid conducted in the house of the appellants. As noted above, P.W. 10 Vinay Kumar Das is the investigating officer of the case, P.W.-3 Balwant Singh and P.W. 4 Pankaj Kumar Singh are the seizure list witnesses. In support of innocence of the appellants, on behalf of the defence three witnesses were examined. 5. P.W. 1 Ramashish Kamti has corroborated his self-statement while deposing in court in examination-in-chief. He has proved his self-statement and the seizure list which have been marked as Ext.-1 & Ext.-2 respectively. He has also proved the formal F.I.R. of the case, which has been marked as Ext. 3. In cross-examination, he refused to reveal the confidential source through which the initial information was received. He admits that he reached to the house of appellants half an hour after receipt of the confidential information. He also admits that he had not taken assistance of any Magistrate in conducting raid in the house of the appellants. 3. In cross-examination, he refused to reveal the confidential source through which the initial information was received. He admits that he reached to the house of appellants half an hour after receipt of the confidential information. He also admits that he had not taken assistance of any Magistrate in conducting raid in the house of the appellants. He admits that when the Ganja, in question, was recovered no one was there inside the house. According to him, it was chowkidar Ganaur Paswan, who had identified the house from which Ganja was recovered as the house of the appellants. According to him, appellant no. 1 Jaikal Devi was apprehended at the verandah of her house. The seized packets were weighed at the place of occurrence itself. The equipments for taking weight were procured from some of the co-villager. However, he failed to name the person from whom the equipments for taking weight of the seized Ganja were procured. He admits that he had not taken signature of the police personnel accompanying him in the raid over the seizure list. 6. P.W. 2 Krishna Ram, an A.S.I. of Police has also corroborated the prosecution case in his examination-in-chief. However, in cross-examination, he admits that no Magistrate had accompanied the police party in course of raid, search or seizure of the contraband. 7. P.W. 3 Balwant Singh and P.W. 4 Pankaj Kumar Singh have identified their signature over the seizure list, which have been marked as Ext. 4 and 4/1 respectively. However, they categorically state that nothing was seized by the police in their presence. They have been declared hostile by the prosecution. After declaring them hostile, the prosecution cross-examined them. However, nothing material could come out in their cross-examination. 8. P.W. 5 Srikant Sharma was also a member of the raiding team. At the relevant time, he was posted as Havildar in the police station. In his examination-in-chief itself, he states that though the seizure was made from the house where raid was conducted but the paper work was done in the police station. He also states in his chief that he does not identify the person in whose house the raid was conducted. In cross-examination, he states that the constables had not gone inside the house. It was only the Officer-in-Charge and the A.S.I. of Police, who had entered inside the house at the time of raid. 9. He also states in his chief that he does not identify the person in whose house the raid was conducted. In cross-examination, he states that the constables had not gone inside the house. It was only the Officer-in-Charge and the A.S.I. of Police, who had entered inside the house at the time of raid. 9. P.W. 6 Manoj Kumar Paswan states that at the relevant time, he was posted as a constable in Gaighat Police Station. When the police raided the house, the constables had encircled the house from outside and the informant, some villagers and the Chowkidar had gone inside the house for conducting search and seizure. He states that a lady was apprehended outside the house. He failed to recall as to whether or not any villager had put his signature over the seizure list. In cross-examination, he failed to identify appellant no. 1 as the lady who was apprehended at the place of occurrence. 10. P.W. 7 Raghunath Mishra is another Constable, who was a member of the raiding party. He also admits that he had not entered inside the house. He also failed to identify appellant no. 1 as the lady who was apprehended at the place of occurrence. 11. P.W. 8 Abhinay Kumar, a constable and a member of the raiding team identified appellant no. 1. However, he admits that he does not remember as to whether or not any seizure list was prepared at the place of occurrence. In cross-examination, he admits that he has no knowledge that the house in which the raid was conducted belonged to appellant no. 1 Jaikal Devi. 12. P.W. 9, Sanjeev Kumar Singh, a Constable and a member of the raiding team, states in his examination-in-chief that he had not entered inside the house. He failed to identify the appellant no. 1 as the lady who was arrested at the place of occurrence. 13. As noted above, P.W. 10 Vinay Kumar Das was entrusted with the investigation of the case. He states that he had recorded statement of witnesses, inspected the place of occurrence and sent the sample of the seized Ganja to the Forensic Science Laboratory. He has proved the Forensic Science Laboratory report, which has been marked as Ext.-5 with objection. In cross-examination, he states that at the time of occurrence he was posted as S.I. in Gaighat Police Station. He has proved the Forensic Science Laboratory report, which has been marked as Ext.-5 with objection. In cross-examination, he states that at the time of occurrence he was posted as S.I. in Gaighat Police Station. He had no information regarding the confidential information received by the Officer-in-Charge of the Police Station. He admits that he has no knowledge as to whether or not the confidential information received by the Officer-in-Charge was ever transmitted to any superior officer. He states that from the statement of witnesses recorded by him, in course of investigation, it appears that the seizure list was prepared at the place of occurrence itself. He also admits that there is no entry in the case diary with respect to weight of the sample of contraband taken by him. The seized Ganja was kept in Malkhana of the police station. The sample was taken from one or two packets. He also admits that the seized Ganja was not sealed. However, the sample which was sent to the Forensic Science Laboratory was sealed. He states that on 30.7.2008 the sample of Ganja was sent to the Forensic Science Laboratory. The report, in this regard, was received on 13.1.2009. In further cross-examination, he admits that there is nothing on record to support his contention that on 30.7.2008, the Ganja so seized was taken out for the purposes of drawing sample. 14. From the evidence on record, it appears that it is a case of no evidence as against appellant no. 2. When the seized Ganja is alleged to have been recovered, he was not even present in his house. So far as appellant no. 1 is concerned, the witnesses examined on behalf of the prosecution have stated differently about the manner in which she was arrested. In the F.I.R., it is alleged that she was arrested by the police party when she tried to escape from her house. However, in course of trial though P.W.-1 Ramashish Kamti and P.W. 2 Krishna Ram corroborate the manner of arrest of appellant no. 1 Jaikal Devi as stated in the F.I.R. but, P.W.-5 Srikant Sharma and P.W.-6 Manoj Kumar Paswan in their deposition clearly state that no lady had tried to escape from the house in which the raid was conducted. However, in course of trial though P.W.-1 Ramashish Kamti and P.W. 2 Krishna Ram corroborate the manner of arrest of appellant no. 1 Jaikal Devi as stated in the F.I.R. but, P.W.-5 Srikant Sharma and P.W.-6 Manoj Kumar Paswan in their deposition clearly state that no lady had tried to escape from the house in which the raid was conducted. P.W. 7 Raghunath Mishra and P.W.-9 Sanjeev Kumar Singh in their deposition state that a lady was arrested from inside the house in which raid was conducted. 15. From the evidence I find that P.W. 4 Pankaj Kumar, P.W. 5 Srikant Sharma, P.W. 6 Manoj Kumar Paswan, P.W.7 Raghunath Mishra and P.W. 9 Sanjeev Kumar Singh, who were all members of the raiding party which conducted the raid in the house of the appellants failed to identify appellant no. 1 Jaikal Devi as the lady who was apprehended by the police in the alleged raid. The seized contraband was never produced in the court in course of trial. 16. I further find that P.W.-3 Balwant Singh and P.W.-4 Pankaj Kumar Singh, who were the seizure list witnesses, have not supported the prosecution case. They have been declared hostile by the prosecution. 17. As noted above, the witnesses examined on behalf of the prosecution have given contradictory statements with respect to the place where the seizure list was prepared. Some of them say that the seizure list was prepared at the place of occurrence itself but, some others say that the paper work was done in the police station and some others state that they fail to recall as to whether or not the seizure list was prepared at the place of occurrence. 18. I further find that the informant, who is the Officer-in-Charge of the police station states that he received a confidential information on 10.6.2008 at 9.30 a.m., on the basis of which, a raiding team was constituted and a raid was conducted in the house of the appellants at about 10 a.m. While deposing in court, he does not state that any information in this regard was ever given by him to the superior police officer. Even the investigating officer while being cross-examined in court admits that he has no knowledge as to whether the informant had ever transmitted the information to any superior police officer. 19. Even the investigating officer while being cross-examined in court admits that he has no knowledge as to whether the informant had ever transmitted the information to any superior police officer. 19. In Section 42 under Chapter V of the Act, the procedure has been prescribed by which search, seizure and arrest of an accused without warrant or authorization can be effected, which reads as under: – “42. Power of entry, search, seizure and arrest without warrant or authorization. 19. In Section 42 under Chapter V of the Act, the procedure has been prescribed by which search, seizure and arrest of an accused without warrant or authorization can be effected, which reads as under: – “42. Power of entry, search, seizure and arrest without warrant or authorization. – (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 including para-military forces or armed forces 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, or controlled substance in respect of which an offence punishable under this Act has been 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 this Act 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 this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; 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 this Act: Provided that if such officer has reason to believe that a search warrant or authorization 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 within seventy-two hours send a copy thereof to his immediate official superior.” 20. From a bare reading of Section 42 of the Act, it is apparent that where an officer takes down any information in writing under sub-section (1) of Section 42 of the Act or records grounds for his believe under the proviso thereto, he shall within seventy-two hours sent a copy thereof to his immediate official superior. Such officer is free to conduct any search, seizure or arrest without warrant between sun-rise and sunset. The provision of Section 42 of the Act provides safeguards against arbitrariness and contravention thereof which may cause prejudice to the person arrested. Further Section 57 of the Act casts a duty upon the arresting and seizing officer to make a full report of all the particulars of such arrest or seizure to his immediate official superior within 48 hours. 21. Here, in the present case admittedly no information in writing was ever transmitted by the informant to his immediate official superior either before or after search, seizure and arrest in question. I further take note of the fact that though the informant claims that the confidential information received with respect to the offence was entered into the station diary but the prosecution failed to bring on record the said station diary entry. Admittedly, save and except P.Ws. 1 & 2, no other witness of the police raiding team entered inside the house when the alleged search and seizure is said to have been effected. The investigating officer was not a member of the raiding team. Thus, on the point of seizure, except P.W. 1 Ramashish Kamti & P.W. 2 Krishna Ram, there is no other witness. 22. It has come in evidence that it was the village chowkidar, who had identified that the house in question to be the house of the appellants. Some of the witnesses examined on behalf of the prosecution have also stated that the chowkidar went inside the house along with the informant Ramashish Kamti and A.S.I. Krishna Ram. However, the village Chowkidar has not been examined by the prosecution as a witness in course of trial. The prosecution has not given any explanation for his non-examination. 23. Some of the witnesses examined on behalf of the prosecution have also stated that the chowkidar went inside the house along with the informant Ramashish Kamti and A.S.I. Krishna Ram. However, the village Chowkidar has not been examined by the prosecution as a witness in course of trial. The prosecution has not given any explanation for his non-examination. 23. From the statement of the P.W.-1, the informant and P.W. 10 the investigating officer, it appears that the sample was taken without complying with the provisions of Section 52-A (2) of the Act. Section 52-A (2) of the Act reads as under: – “52-A(2) Where any narcotic drug or psychotropic substances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application” 24. From Clause (c) of sub-section (2) of Section 52 A of the Act, it is clear that the sample to be sent for analysis has to be taken out in presence of the Magistrate and it is required to be duly certified by him. No inventory certifying the correctness of the seized Ganja was prepared. The samples of the contraband sent for F.S.L. examination were not taken in presence of independent person or seizing officer or the accused. 25. No inventory certifying the correctness of the seized Ganja was prepared. The samples of the contraband sent for F.S.L. examination were not taken in presence of independent person or seizing officer or the accused. 25. Here, I would like to take into consideration the report of the Forensic Science Laboratory which has been taken on record and marked as Ext.-5 with objection by the trial court. The report is under different heads. One of the head is the “mode in which parcel was found to be packed on receipt and description of seal”. Under this head the unfilled columns have been left blank. The contents under this head reads as under: – “The parcel consisted of …….. a card board box ……..enclosed within ………… cloth………… cover which was duly sealed with impressions of seal corresponding with the seal impression forwarded. It is said to contain simple of Ganja seized from accused”. 26. Thus, from the report of the Forensic Science Laboratory, at least, this much is apparent that the sample in which parcel was sent was in an unsealed condition. Under such circumstances, no value can be attached to the result of examination of the contraband which reads as under: – “The dry-brown pressed flowering and fruiting vegetable substances contained in the card board box described above was found to be GANJA containing Tetra Hydro Cannabinol (T.H.C.) as its chief intoxicating ingredient. Ganja is the flowering and fruiting tops of the female plant of Cannabis-Sativa”. 27. As per prosecution case, the Ganja was found in 100 packets. The investigating officer admits that he took the sample from one or two packets. What happened to the remnants of the sample is not known. The materials exhibits were never produced in court. What happened to the remaining packets of Ganja is also not known. It is not known as to what was the quantity of the sample drawn for chemical test. The sample sent for examination were neither drawn nor sealed in presence of the accused, Panchnama witnesses and the seizing officer. The Seizing Officer had not even put his official seal over the contraband seized. To the contrary, the investigating officer admits in cross-examination that the sample was drawn by him from unsealed packet of Ganja kept in Malkhana of the police station. The Seizing Officer had not even put his official seal over the contraband seized. To the contrary, the investigating officer admits in cross-examination that the sample was drawn by him from unsealed packet of Ganja kept in Malkhana of the police station. No reliance can be placed on such kind of search, seizure and chemical examination report with respect to the contraband. 28. In view of the discussions made, hereinabove, it is apparent that the prosecution failed to adhere to the mandatory provisions of the Act. The learned counsel appearing for the State was not able to show for want of material on record that the mandatory requirements pointed out above had been adhered to. The seizure of the contraband in absence of the material exhibit is shrouded in mystery. 29. Under the circumstances, in my view, the prosecution has failed to prove its case beyond reasonable doubt. The accused is, therefore, entitled to be acquitted. 30. In the result, I allow this appeal, set aside the judgment of conviction and order of sentence and acquit the appellants of the charge levelled against them. They are directed to be set at liberty at once unless required in any other matter.