JUDGMENT Mr. Jitendra Chauhan, J.:- This order of mine shall dispose of five appeals bearing Nos. 2391-SB of 2007, 1692-SB of 2004, 1102-SB of 2004, 1014-SB of 2004 and 1080-SB of 2004 against the judgment of conviction and order of sentence dated 16.4.2004, passed by the learned Special Judge, Ferozepur, convicting and sentencing the appellants under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as ‘NDPS Act’ to under­gone R.I for ten years and to pay a fine of Rs.1 lac each, and in default of payment of fine to further undergo R.I for one year. 2. In brief, the facts of the case are that on 25.4.1996, the about 8 p.m, police party headed by Inspector/SHO Budh Singh alongwith other po­lice officials was present in connection with Nakabandi on the bridge canal minor situated in the area of village Himmatpura on link road lead­ing from village Himmatpura to village Wazid­pur Home. At that time, a tractor trolley, bear­ing No. PBM-5197, was seen coming from the side of village Wazidpur Bhoma. SHO Budh Singh Investigating Officer in the case, signaled the tractor trolley to stop with the torch light. The driver Paramjit Singh @ Pamma stopped the ve­hicle. Two persons were sitting on the trolley. They jumped and escaped. The investigating of­ficer came to know the name of the said persons as Lala and Kewal Singh. Paramjit Singh @ Pamma, driver of the tractor and two persons, Nachattar Singh and Joginder Singh, sitting on the mudguard of the tractor were apprehended by the Investigating Officer with the help of other police officials. The tractor trolley was loaded with wheat straw and on taking the search, poppy husk was found concealed underneath the wheat straw. The Investigating Officer sent wireless message to Sh. SK Asthana, A.S.P, Abohar and at about 8.40 p.m, Sh. SK Asthana reached the spot. On search of the vehicle, 12 bags of poppy husk were found and on weighment, each bag was found to contain 35 kgs. Poppy husk. The In­vestigating Officer, separated 200 gms. Poppy husk from each bag and prepared the parcels and remaining bags were also converted into parcels and sealed with seal bearing initials “BS”. Sam­ple seal EX.P3 was separately prepared and the seal after use was handed over to ASI Tarlok Singh by the Investigating Officer. Poppy husk. The In­vestigating Officer, separated 200 gms. Poppy husk from each bag and prepared the parcels and remaining bags were also converted into parcels and sealed with seal bearing initials “BS”. Sam­ple seal EX.P3 was separately prepared and the seal after use was handed over to ASI Tarlok Singh by the Investigating Officer. All the parcels and tractor trolley were taken into posses­sion vide recovery memo No. Ex.P4, which was attested by the witnesses. Ruqa EX.P9 was sent to the Police station, on the basis of which FIR, Ex.P 1 was registered. Investigating Officer also prepared rough site plan EX.P-10 of the place of recovery. All the three accused were arrested and grounds of arrest were intimated to them. Special report EX.P-ll was sent to Senior Officers in this case. Kewal Singh was arrested on 5.5.1996 and Lala was arrested on 17.5.1996. Challan was pre­sented in the court of Illaqa Magistrate on 12.11.1996, who vide order dated 20.11.1996, committed the case for trial to the Court of Spe­cial Judge, Ferozepur. 3. On 4.2.1997, the learned Addl. Sessions Judge, Ferozepur found prima fade case against accused Paramjit Singh, Nachattar Singh a, Joginder Singh, Kewal Singh and Lala under section 15 of the N.D.P.S. Act. 4. The accused were charged accordingly to which they pleaded not guilty and claimed trial. 5. To prove its case, prosecution has examined 7 witnesses. 6. Constable Pushpinder Singh, PW-1 was the member of the raiding party. Inspector Budh Singh handed over 12 parcels of poppy husk weighing 200/200 grams each for forwarding the same to Assistant Chemical Examiner, Bathinda. On 2.5.1999, he deposited all the par­cels alongwith docket to the office of Chemical Examiner, Bhatinda. 7. S.I. Surjan Singh, PW2 received the ruqa from Inspector Budh Singh on 25.4.1996 and recorded the FIR Ex.PI, which bears his signatures, 8. H.C. Ram Sarup, PW3 attested the thumb mark of accused Lala on 17.5.1996, when he was arrested and prepared the memo EX.P2. 9. Ashok Kumar, Clerk, DTO, PW4 brought the summoned record of tractor bearing No. PBM­ 5197 from the office of DTO, Muktsar. 10. ASI Tarlok Singh, PW5 was present during the Nakabandi on 25.4.1996 at village Himmat­pura. He followed accused Lala and Kewal Singh, when they escaped from the spot. He con­ducted p’aIiial investigation of the case. He ar­rested Surinder Pal, owner of the tractor trolley. 11. 10. ASI Tarlok Singh, PW5 was present during the Nakabandi on 25.4.1996 at village Himmat­pura. He followed accused Lala and Kewal Singh, when they escaped from the spot. He con­ducted p’aIiial investigation of the case. He ar­rested Surinder Pal, owner of the tractor trolley. 11. Inspector Budh Singh, PW6 is the Investi­gating Officer of the case. On his information, FIR was registered against the accused. He sup­ported the prosecution version. He sent wireless message to ASP Mr. SK Asthana, Abohar, who reached the spot within 45 minutes. He recov­ered 2 bags of poppy husk lying under the wheat straw. He sealed the parcels with his seal “BS”. After use, seal was handed over the ASI Tarlok Singh. The parcel of sample and bags of poppy husk, 24 in number and the tractor trolly were taken into possession vide memo Ex.P4 were 12 in and sample. Personal search of the accused Paramjit Singh, Joginder Singh and Nachattar Singh was carried out by this witness. He also prepared the rought site plan Ex. P10. Special report Ex.P-11 under section 57 NDPS Act was sent by the witness to higher authorities. On 5.5.1996, accused Kewal Singh was arrested and on 17.5.1996, accused Lala was arrested by this witness. 12. Mr. S.K. Asthana, SSP, Mansa, PW7 re­ceived wireless message from Inspector Budh Singh at about 8.p.m. He reached the spot with his personal staff in official zipsy. The police party and three accused and a tractor trolley loaded with wheat straw were present at the spot. In­spector Budh Singh completed all the formalities as per prescribed procedure in his presence. Special report was received in his office on the next day, which is Ex. P-11. 13. The accused were examined under section 313 Cr.P.C. They denied all the incriminating al­legations appearing in the prosecution evidence and claimed to be innocent. They were provided opportunity to produce evidence in their defence but they closed their defence evidence without producing any witness. 14. Before the Ld. Trial Court, it was argued that 12 bags containing 35 kgs each of poppy husk were recovered from the appellants, except Sur­inder Singh, owner of the vehnd~5 in the presence of police party. PW:5 ASI Tarlok Singh and PW 7 Mr. SK Asthana, SSP Mansa were the recovery witnesses and they have supported the prosecu­tion version. 14. Before the Ld. Trial Court, it was argued that 12 bags containing 35 kgs each of poppy husk were recovered from the appellants, except Sur­inder Singh, owner of the vehnd~5 in the presence of police party. PW:5 ASI Tarlok Singh and PW 7 Mr. SK Asthana, SSP Mansa were the recovery witnesses and they have supported the prosecu­tion version. It was also pointed out that accused Kewal Singh and Lala escaped from the spot but were identified HC Sarup Singh, member of po­lice party. 15. The learned trial court rejected the submis­sions made by the learned defence counsel, while noticing that the prosecution has succeeded in proving its case against accused Paramjit Singh, Nachhattar Singh, Joginder Singh, Lala and Ke­wal Singh under section 15 of the NDPS Act and accordingly the accused were held guilty under section 15 of the NDPS Act, 1985 and were convicted thereunder. 16. I have heard the learned counsels appearing for the appellants and the State of Punjab, and also gone through the case record with their able assistance. 17. Sans the necessary factual matrix, which has already been detailed in the preceding paras, the issue that arises for determination is whether Appellants Nacchattar Singh, Joginder Singh, Paramjit Singh @ Pamma, Lala and Kewal Singh were found in possession of 12 bags of poppy husk in a tractor trolley on 25.4.1996, without any legal authorisation or legally plausible explanation. This core issue can be subdivided into 2 sub issues. Firstly, whether Appellants Nacchattar Singh, Paramjit Singh and Joginder Singh were apprehended at the spot by the police party headed by Inspector Budh Singh, carrying/transporting the alleged poppy husk, which was recovered from the tractor trolley in which they were travelling/driving. Secondly, whether Appellants Lala and Kewal Singh were also accomplices of the above named Appellants but they ran away from the place of occurrence before being apprehended with the aid of darkness. 18. The second sub-issue is being taken up first. The prosecution case implicating appellants Lala and Kewal Singh rests on the personal knowledge of Head Constable Ram Sarup whom he claimed to have known previously in personal capacity. HC Ram Sarup was a part of the police party which apprehended the tractor trolley. 18. The second sub-issue is being taken up first. The prosecution case implicating appellants Lala and Kewal Singh rests on the personal knowledge of Head Constable Ram Sarup whom he claimed to have known previously in personal capacity. HC Ram Sarup was a part of the police party which apprehended the tractor trolley. There is no bar against accepting the testimony of official witnesses even in NDPS cases pro­vided the testimony is inherently truthful and in­spires such confidence in the Court or the same is reasonably substantiated by leading corrobora­tory evidence. 19. The testimony of HC Ram Sarup regarding the personal knowledge of appellants Lala and Kewal Singh fails to inspire confidence of the Court. The corroboratory evidence is also not cogent or convincing. In this regard, it is impor­tant to refer to the testimony ofPW6 Budh Singh, Inspector and 10 of the case. He deposes that in the Ruqa Ex P9, there is no mention of the disclo­sure of the identity of the two persons, who ran away, by HC Ram Sarup. Interestingly, HC Ram Sarup himself in examination- in-chief made no mention about him previously knowing appel­lants Lala and Kewal Singh and informing about the same to the 10 Inspector Budh Singh. There is no indication or suggestion in the impugned judgment that HC Ram Sarup was declared hos­tile or he was suppressing the truth which makes the link evidence almost non-existent i.e. between the recovery of 12 bags of poppy husk and involvement of Lala and Kewal Singh as accompanying who were accompanying Appellants Nachhatar Singh, Paramjit Singh and Joginder Singh. Furthermore, the time of occurrence i.e. 8 pm, makes it difficult to believe the prosecution version of having identified the Lala and Kewal Singh. It is not the case of prosecution that Lala and Kewal Singh ran away after torch light was flashed on their faces. For obvious reasons, criminals would not wait for their faces to be identified in flash lights or torches before mak­ing good their escape. They would jump and run away at the first available moment. It is not the case of prosecution that Lala and Kewal Singh ran away after torch light was flashed on their faces. For obvious reasons, criminals would not wait for their faces to be identified in flash lights or torches before mak­ing good their escape. They would jump and run away at the first available moment. In the present case, even believing that two persons did run away from the spot, they must have ran away in all probability even before the tractor trolley came to a halt keeping in mind that it was a police party of 7 officials which signaled the tractor to stop and not a solitary police man trying to stop a tractor, making it almost impossible for the police party to have recognized them. 20. Even the Ld. Trial Court, in para 12 of its judgment, has returned a finding that the co-accused i.e. appellants Nachhatar Singh, Paramjit Singh and Joginder Singh, did not disclose the names of the two persons who ran away. Still fur­ther, presuming that Lala and Kewal Singh were actually the persons who ran away from the spot, of occurrence on 25.4.1996 and their identity was immediately disclosed by HC Ram Sarup to IO Inspector Budh Singh, there is no evidence re­garding the steps taken by the IO to arrest both the persons. Kewal Singh is supposed to have been arrested on 5.5.1996 (i.e. 11 days after the search and seizure whereas Lala is supposed to have been produced before the] 0 by a Sarpanch on 17.5.1996. It is highly unlikely, that even with the knowledge about the accused identity, the police would not make efforts to arrest them, es­pecially in a case under the NDPS Act, which is a highly sensitive piece of legislation. 21. Another very interesting aspect about the identity of appellants Lala and Kewal Singh is revealed by the observation of the Ld. Trial Court while returning a finding on the presence of PW S.K. Asthana IPS at the time of search of the appellants i.e. search of tractor-trolley. While countering the defense assertion that Mr. As­thana was, infact, never called at the spot and his signatures were taken later on as a formality which fact is proved by the inability of said PW to identify Nachhattar Singh (Surinder Kumar was infact identified as Nachhatter Singh by this PW in court, the Id. While countering the defense assertion that Mr. As­thana was, infact, never called at the spot and his signatures were taken later on as a formality which fact is proved by the inability of said PW to identify Nachhattar Singh (Surinder Kumar was infact identified as Nachhatter Singh by this PW in court, the Id. Trial Court discounted this fact by observing that Mr. Asthana was present at the spot only for a short while search was con­ducted of the tractor trolley. Surprisingly, the Id. Trial court lost sight of the fact that if PW7, Mr. Asthana was unable to identify Nacchattar Singh who remained in his presence, even if for the duration of search which must have taken at the very minimum at least 10-15 minutes, how could the police party possibly recognize appellants Lala and Kewal Singh, or whom they only had fleeting glances and in all probability were only able to see their backs while they ran away. In view of the above detailed discussion, I am of the considered view that the prosecution has been unable to prove the presence of appellants Lala and Kewal Singh at the place of occurrence/scene of crime. 22. In so far as the remaining 3 appellants are concerned i.e. Nacchattar Singh, Joginder Singh and Paramjit Singh @ Pamma, the proof of their guilt/complicity in the crime rests on a different footing. The main arguments advanced on their behalf can be summarised as below: i. Non-compliance of mandatory provisions of section 50 of the NDPS Act relating to search of the accused persons. ii. Non-compliance of provisions of section 42 of the NDPS Act. iii. Discrepancies in the statements of Police of­ficials forming part of the police party which apprehended the accused-appellants. iv. Non production of case property before the Id. Trial Court v. Non Joining of independent witnesses from the Public. 23. The thrust of the arguments of the learned counsel for the appellants has been on non-com­pliance of section 50 of the NDPS Act. It is con­tended by the learned counsel’s for the appel­lants that non-compliance with procedural re­quirements as set out in section 50 of the Act would vitiate the entire search and seizure opera­tion and resultantly, the very basis of the prose­cution case. It is con­tended by the learned counsel’s for the appel­lants that non-compliance with procedural re­quirements as set out in section 50 of the Act would vitiate the entire search and seizure opera­tion and resultantly, the very basis of the prose­cution case. Substantiating this limb of argu­ment, it has been submitted that neither the Ap­pellants were informed about their right of being searched by a gazetted officer nor was the gazet­ted officer i.e. Mr. S.K. Asthana IPS, APS Abo­har, who as per the prosecution version is sup­posed to have been called for conducting the search, was actually present at the time of search from tractor trolley. 24. In regard to the argument relating to non­-compliance of section 50 of the NDPS Act, it would be worthwhile to highlight that section 50 of the Act has very limited application i.e. when the physical or personal search of the suspect’s is to be conducted. The only extension of section 50 of the Act can be made in cases where along with the personal/physical search of the suspect, any bag or container, of which the suspect can be said to be having conscious possession, is also to be conducted. In the present case, it is the joint case of prosecution as well as the defence/Appel­lants that no recovery was effected from the per­son of the appellants; rather the same was made from the tractor trolley. In view of this admitted case from both side, the question whether or not section 50 was complied with or not becomes insignificant and is thus of no help to the Appellants. 25. Second argument advanced by the learned counsels for the appellants is regarding non compliance of the provisions of section 42 of the Act. It is specifically contended that in view of language of section 42, any search to be made after sunset can be carried out only after due au thorisation/Search Warrant from the competent officer/magistrate. Since on 24.4.1996, the sun set at 6.57 p.m, the search of tractor trolley with­out obtaining due authorisation was illegal and of no consequence. Before adverting to the mer­its of this submission it would be relevant to re­produce section 42 and 43 of the NDPS Act:­ “42. Since on 24.4.1996, the sun set at 6.57 p.m, the search of tractor trolley with­out obtaining due authorisation was illegal and of no consequence. Before adverting to the mer­its of this submission it would be relevant to re­produce section 42 and 43 of the NDPS Act:­ “42. Power of entry, search, seizure and ar­rest without warrant or authorisation ­(1) Any such officer (being an officer supe­rior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government 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 for 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 or 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 of 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 per authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sun­set and sunrise after recording the grounds of his belief. (2) Where an officer takes down any informa­tion in writing under sub-section (1) or re­cord grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy there of to his immediate offi­cial superior. “43. Power of seizure and arrest in public place-Any officer of any of the department mentioned in section 42 may­ - (a) seize in any public place or in transit, any the narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable the under this Act has been committed, and, alongwith such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act 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; (b) detain any search any person whom he has reason to believe to have committed an of­fence punishable under this Act, and if such person has any narcotic drug or psychot­ropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.” 26. A careful perusal of the two sections brings out the difference between their application. Section 42 of the Act, which is detailed section, is applied when the search of a dwelling house, conveyance or an enclosed place it is to be conducted as opposed to a public place. The use of the word ‘conveyance’ in section 42 has been interpreted as being a conveyance which is appurtenant to a dwelling place or an enclosed place. In other words, provisions of section 42 of the Act will be applicable to search of a conveyance only when it is at rest and can be said to be a part of a dwelling house or enclosed place. It is only in such a case that special reasons have to be recorded by the authorized officer if he wants to conduct the search of the same between sunset and sunrise without authorization from the com­petent officer. It is only in such a case that special reasons have to be recorded by the authorized officer if he wants to conduct the search of the same between sunset and sunrise without authorization from the com­petent officer. However, where the search of conveyance is to be conducted in a public place or when it is in transit, section 43 of the Act will come into play for which the only requirement is that he should be satisfied that the conveyance which is sought to be searched, is containing suspicious material. The aforesaid discussion makes it clear that in the present case, section 42 of the Act was not attracted as the search was conducted from a tractor trolley which was in transit in a public place. Thus, the question of compliance or non-compliance of section 42 of the Act is also inconsequential. 27. The next argument advanced in support of the appellants is that no witness from the public was joined even though the search was con­ducted on a busy road. In the considered opinion of this Court, this argument has some force espe­cially keeping in mind the alleged place of recov­ery. In this case, the Police remained on the spot for about five hours and many people passed by the site. There is no explanation as to why the Police could not involve any person from the public at the time of recovery. The explanation put forth by the prosecution itself erodes the truthfulness of the version presented by the prosecution. 28. The other grounds of defence i.e. discrepan­cies in the statements official witnesses regarding the number of dockets prepared or as to who was driving the tractor are not material in a case where the witness is a layman. However, six out of seven prosecution witnesses, in the instant case are the police officials who receive adequate training and know the implications of the statements made by them before the Court of that law. The discrepancies or contradictions in the legal statements become material in the instant case as the statements have come from the trained officials of the Police Force. Therefore, in the opinion of this Court, a contradiction or defect in the statement of police witness takes the complexion of material deficiencies. This is more so because NDPS Act imposes strict liability on offenders. Therefore, in the opinion of this Court, a contradiction or defect in the statement of police witness takes the complexion of material deficiencies. This is more so because NDPS Act imposes strict liability on offenders. The guilt of anyone accused of a crime under NDPS Act thus, has to be established by scanning the prosecution evidence in the manner of a microscopic examination. Thus, the contradiction in the statements of PWs with regard to the mode of transportation and preparation of other records in the present case, are material. 29. The afore-discussed contradictions become all the more glaring in view of the following dis­cussion. The most material aspect of the present case, which points towards the innocence of the accused, is the alleged presence of Mr. Asthana, an IPS officer, who was supposedly called at the spot for conducting the search of the accused and tractor-trolley. It has already been pointed above that Mr. Asthana, in whose presence the entire search was supposedly conducted, could not even recognise the accused. The evidence of a senior police officer, who is a member of the distinguished police service, whereby he failed to recognise the accused who remained in his presence, casts a serious doubt on the prosecution veracity. 30. The last argument advanced on behalf of the Appellants is that the case property was not pro­duced before the learned trial court. However, it is on record, that the case property was infact produced before the Illaqa Magistrate on 26.4.1996 (two days after the search and recov­ery and the same was seen by the learned Magis­trate who also recorded an order in this regard. The only reason for non production of case property, as revealed from the case file is that it being an old case, no adjournment was granted by the a trial court to the IO to produce the case property a on the next date. It is thus not a case where the case property never existed. However, the find­ing on this aspect does not in any way alter the considered opinion of this Court that the prose­cution evidence has failed to established the presence of the appellants at the alleged scene of crime. 31. The sum total of above stated discussion is that the presence of appellants at the place of al­leged recovery of contraband is not established, viewed from any angle. 31. The sum total of above stated discussion is that the presence of appellants at the place of al­leged recovery of contraband is not established, viewed from any angle. The prosecution has mis­erably failed to prove the case against the appel­lants, beyond reasonable doubt. Keeping in view the stringent provisions of the Act, they are given benefit of doubt. 32. Accordingly, all the appeals are allowed. The judgment of conviction and order of sentence dated 16.4.2004, passed by Special Judge, Ferozepur, are set aside. The accused-appellants Lala, Kewal Singh, Nachhattar Singh, Paramjit Singh and Joginder Singh are hereby acquitted of the charges under section 15 of the NDPS Act. ---------0.B.S.0------------