JUDGMENT 1. - The accused-appellant is aggrieved by the judgment dated 14.9.1989 passed by learned Additional Sessions Judge, No.1, Udaipur (for short 'the trial Court') in Sessions Case No, 1/1987, whereby the learned trial judge convicted the accused-appellant Dilip Kumar S/o Himmat Lal, By Caste-Soni, R/o Bhadbhunja Ghati, Udaipur for offence punishable under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after 'the N.D.P.S. Act') and sentenced him to 10 years' rigorous imprisonment along with fine of T 1 lac, in default of payment whereof to farther undergo five years' rigorous imprisonment. 2. In short, facts-of the case are that on 7.12.1986 early in the morning Mr. R.P. Srivastava (PW-11) Dy. S.P., Udaipur City (West) received a secret information that the accused-appellant Dilip Kumar is keeping 'charas' in his house and doing illegal business. Upon receiving this information, he, along with Rajesh Soral, S.H.O., Ambamata, Udaipur (PW-9), Tej Singh, A.S.I., S.H.O., Dhanmandi, Udaipttr (PW-10), Sunder Lal, A.S.I. and other Police Officials and motibrs-Mehtab Singh (PW-1) and Madan Lal (PW-8) constituted a raiding party. The raiding party reached to appellant's house at around 8.45 A.M. 3. The accused-appellant was called outside form his room and he was taken along with raiding party. Out of four rooms on first floor of his house, Dilip Kumar's room situated towards Western side was searched, whereupon a black resin bag, which had zip chain, was found from beneath bed of Dilip Kumar, in which 'charas' was found filled in polythene pouches. In all 19 pouches were there in that black resin bag. Another brown bag was found to contain 10 pouches, filling with 'charas'. 4. In that room, from an almirah built in the Eastern wall, the raiding party found 500 gms brass-weight, 500 gms iron weight, 200 gms iron weight, two 20 gms brass weights and 10 gins brass, weighing balance having brass strands and ironbar, small-big in all 200 polythene pouches. 5. Manna Lal S/o Ram laiji Khatri (PW-3) was called with weights and weighing balance while Radhey Shyam S/o Ram Das (PW-2) from Rama Studio was also called. The recovered contraband 'charas', upon weighing, was found to be 14 kilogram 500 grams in all, out of one packet of 500 gms was taken as sample for chemical analysis. The recovered charas was photographed before sealing. Various memos were prepared and statement of witnesses were recorded. 6. The recovered contraband 'charas', upon weighing, was found to be 14 kilogram 500 grams in all, out of one packet of 500 gms was taken as sample for chemical analysis. The recovered charas was photographed before sealing. Various memos were prepared and statement of witnesses were recorded. 6. The accused-appellant was arrested on 7.12.1986 vide arrest memo Ex.P-3 and F.I.R. No. 105/1986 (Ex.P-7) was registered at Police Station-Dhanmandi, Udaipttr. After due investigation, Police filed challan against the accused-appellant for offence under Section 8/20 N.D.P.S. Act before learned Additional Chief Judicial Magistrate (North), Udaipur, from where the case was committed to the Court of Sessions Judge, where after it was assigned to the Court of Additional Sessions Judge No.1, Udaipur for trial. 7. The trial Court, on 4.6.1987 framed charges tinder Section 8/20 N.D.P.S. Act against the accused-appellant, who denied commission of the offence alleged against him and claimed trial. 8. The prosecution supported its case with the aid of 11 witnesses and exhibited 8 documents. Statement of accused-appellant was recorded tinder Section 313 Cr.P.C. wherein he in categorical terms denied that the room belong to his possession. He also retracted, denying alleged recovery and even search of his room. The accused-appellant alleged that what proceeding was undertaken by Police personnel, he is not aware, he was made to sit outside and only at time of taking snaps he was called inside. He further stated that his room was not searched, the room so searched was of his brother and he, in act, lives on ground floor. He had went in that room only for a moment in search of a key and came out upon calling by police. In defence, the accused-appellant examined himself as DW-2 and his father Himmat Lal was examined as DW-1 and exhibited 11 documents including photographs, letter dated 31.8.1987, map of the house and certified copies of documents relating to witness Madan Lal (PW-8). 9. After scrutiny of the material on record, appreciation of evidence produced by the prosecution, the statements of accused persons under Section 313 Cr.P.C. as well as statement of defence witnesses and after hearing learned counsel for both the sides; learned Sessions Judge vide judgment dated 14.9.1989 convicted the accused-appellant for offence under Section 8/20 of the N.D.P.S. Act and sentenced him as aforesaid. 10. 10. Aggrieved by the conviction and imposition of sentence vide impugned judgment dated 14.9.1989 passed by the learned Additional Sessions Judge No.1, Udaipur, this appeal has been preferred by the accused-appellant. 11. Heard learned counsel for the accused-appellant as well as learned Public Prosecutor. 12. Learned counsel for the accused-appellant submitted that the learned trial Judge erred in placing reliance upon testimony of the prosecution witnesses, comprised solely of Police officials. It is submitted that the impugned conviction is against the evidence on the record. The accused-appellant had been falsely implicated in this case. When the accused-appellant was called outside from the house by Police, his room was not searched and the room so searched by the raiding party was in his brother Brij Mohan's possession and the accused-appellant, in fact, lives on the ground floor of the house. This fact is established by evidence of the prosecution also. 13. He further submitted that the defence examined accused-appellant himself as DW-2 and his father Himmat Lal as DW-1 but the learned trial Judge has not considered the defence evidence in true sense. Independent witness-Subhash Chand (PW-6) and Manna Lal (PW-3) were declared hostile by the prosecution. The motbirs of the 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 be based upon such evidence. As per evidence and documents produced is defence, Madan Lal (PW-8) is pocket witness of the prosecution. 14. It is further submitted that there are major contradictions in the statement of Police department's witnesses and the .prosecution failed to comply with the mandatory provisions of Sections 41, 42, 50, 52, 55 and 57 of the N.D.P.S. Act. The learned counsel for the accused-appellant also contended that element of possession is to be proved by the prosecution beyond reasonable doubt and in the present case, the prosecution has failed to prove the factum of recovery of the contraband-appellant. The learned counsel for the accused-appellant submitted that prosecution evidence on the point of possession of the room with the accused-appellant suffers from serious and material contradictions and it is wholly unreliable and as such, the prosecution failed to prove that the alleged charas' was found from exclusive possession of the accused-appellant 15. The learned counsel for the accused-appellant submitted that prosecution evidence on the point of possession of the room with the accused-appellant suffers from serious and material contradictions and it is wholly unreliable and as such, the prosecution failed to prove that the alleged charas' was found from exclusive possession of the accused-appellant 15. He further argued that it has been admitted by prosecution witnesses that even at the time of raid, the accused-appellant stated that the room does not belong to him. This fact is also corroborated by the prosecution witness Subhash Chand (PW-6), who also admitted that the room of accused-appellant is on the ground floor. Moreover, the chemical analysis. report has not been exhibited during the prosecution evidence and the same has not been even put to the accused-appellant while recording his statement under Section 313 Cr.P.C. These infirmities are fatal to the prosecution case and so, the accused-appellant is entitled to acquittal. 16. The learned counsel for the accused-appellant further contended that seal used for seized article is supposed to be given to independent witness. The seal is not meant to kept either with the Investigating Officer or the malkhana in-charge. In case seal is left with the Investigating Officer or the Malkhana in-charge, the possibility of tampering with the samples cannot be ruled out. In the present case, the impressions of the seal were not prepared and not sent to the F.S.L. for comparison of the seal. Thus, alleged recovery of the contraband charas from exclusive and conscious possession of the accused-appellant becomes doubtful and the prosecution failed to prove that said seized article was contraband charas, as defined under the N.D.P.S. Act. 17. In the above context, the learned counsel for the accused-appellant relied upon decisions rendered in the case of Karnail Singh v. State of Haryana, (2009) 3 SCC (Cri.) 887 ; Babu Ram @ Baboo Lal v. Union of India, 2001 Cr.L.R. (Raj.) 861 ; State of Rajasthan v. Gurmail Singh, 2005 (5) RDD 169 (SC) ; Keshav Prasad and Indra Prakash @ Prakash v. State of Rajasthan Thro' Public Prosecutor, 2006 (2) RDD 1114 (Raj.) ; Manohar Singh v. State of Rajasthan Thro' Public Prosecutor, 2006 (3) RLW 2153 and Bheru Lal & Anr. v. Union of India, 2011 (1) Cr.L.R. (Raj.) 732 ; and prayed that the appeal be accepted and the accused-appellant be acquitted from the offence charged against him. v. Union of India, 2011 (1) Cr.L.R. (Raj.) 732 ; and prayed that the appeal be accepted and the accused-appellant be acquitted from the offence charged against him. 18. On the other hand, Mr. Ashok Prajapat, learned Public Prosecutor vehemently contended that the findings arrived at by the trial Court is based upon evidence and the. judgment of the Court below is correct, there is no infirmity or material contradiction and as such, it does not call for any interference. 19. Learned Public Prosecutor submitted that there is no reason to disbelieve the testimony of prosecution witnesses. He also submitted that 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 produced by the prosecution and the evidence of the defence, it is proved that the recovered contraband seized from possession of the accused-appellant is charas. The accused-appellant, who examined himself as DW-2, has admitted that charas was recovered from the house. The F.S.L. report is admissible in evidence and no prejudice has been caused to the accused-appellant and the learned trial Court has rightly convicted and sentenced him after appreciating oral and documentary evidence in this case. 20. I have given my thoughtful consideration to the submissions made by learned counsel for the rival parties and carefully perused the evidence, record of the case, impugned judgment of conviction and sentence passed by the trial Court, the case law cited by the learned counsel for the accused-appellant and also the relevant provisions of the N.D.P.S. Act. 21. Proof of possession is essential for making conviction under Section 8/20 of the N.D.P.S. Act, if there is a case against appellant-accused that contraband charas was recovered from his possession in the room of the house. The term 'possession' has not been defined in the Act but from judicial decision of Hon'ble Apex Court in Indra Sain v. State of Punjab, AIR 1973 SC 2309 , it is clear that the terms 'possession' would implies dominion and control. The exercise of the dominion would be possible only if there is knowledge of its existence or presence at particular place. 22. The exercise of the dominion would be possible only if there is knowledge of its existence or presence at particular place. 22. A person can be responsible for something which was found on the premises which are in his control but in such a case there should be something in the circumstances that the said person has knowledge of the existence of the contraband in the said premises. 23. Section 20 of the Act provides punishment for possession of cannabis plant and cannabis etc. As per Section 2 (iii) of the N.D.P.S. Act, the word cannabis (hemp)' has been defined as under: "(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin, known as hashish oil or liquid hashish." 24. 'Charas' which is also known as "sulpha, nasha, hashish or marijuana' is the resin collected from the leaves and flowering tops of the female plants, which is obtained by rubbing the tops in hands or beating them on the cloth or stone and collecting the resin. As a matter of fact tetrahydrocannabinol is present in resin of cannabis and the resin is present in the leaves, flowering and fruiting tops, stem and seeds of the plant. 25. Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, (6th Edn.) (page 10.54) opined that tetrahydrocannabinol (THC) is the active principal and it is present in bhang to the extent of 15 per cent, and in charas to the extent of 25-40 per cent. Ganja is leaves and flowering tops of female plant of cannabis which after plucking are dried and sometimes pressed to 'bricks' or twisted and are greenish in colour with THC contents varying around 8 per cent. 26. The deep inhalation of charas and ganja through chillum or hukkah create respiratory problems for the users. I Iashih oil, also known as liquid hashis or liquid cannabis, is obtained by a process of repeated extraction performed on herbal cannabis or cannabis resin. It is dark viscous extract with a THC content ranging between 20% to 60% and it does not dissolve in water and tends to become more viscous after prolonged contact with air. The effects of cannabis use can be drowsiness (after heavy dose), dry mouth, red eyes, euphoria, anxiety, increased appetite, social withdrawal, impaired judgment, illusions and hallucinations. It is dark viscous extract with a THC content ranging between 20% to 60% and it does not dissolve in water and tends to become more viscous after prolonged contact with air. The effects of cannabis use can be drowsiness (after heavy dose), dry mouth, red eyes, euphoria, anxiety, increased appetite, social withdrawal, impaired judgment, illusions and hallucinations. The withdrawal symptoms of cannabis are insomnia, hyperactivity and less appetite. 27. Possession is made up of two elements; firstly-the corpus-the element of physical control and, secondly-the animus or intent, with which such control is exercised. It is conscious possession which is contemplated by penal statute, which provides and penalised possession of any contraband article or anything. It may be pointed out here that so far as possession is concerned, corpus without animus is ineffective but if animus is established, it does not matter whether the possession is actual or constructive. 28. From the above discussions, it appears that it is necessary to bear in mind that in possession, there is a necessary mental element of intention, involving a sufficient knowledge of presence of the drug by the accused. 29. Applying the above principal, the present case is being examined. In the present case, it is admitted position from the evidence on record that the house in question was not in exclusive possession of the accused-appellant Dilip Kumar. His father Himmat Lal (DW-1), brother Brij Mohan, his family and all other family members also live there jointly. 30. The recovery memo of the contraband charas (Ex.P-1) has two motbirs viz/Mehtab Singh (PW-10 bicycle shopkeeper and Madan Lal Harijan (PW-8) Mehtab Singh (PW-1) deposed that he along with Police officials and Madan Lal went to house of Dilip Kumar situated at Bhadbhuja Ghati, Udaipur. The appellant was called outside and then they along with Dilip Kumar went to a room situated at first floor of the house. Dilip Kumar told that this room was of his brother and he, in fact, lives at the ground floor. Similar is the statement of Madan Lal (PW-8), another motbir, that Dilip Kumar told that he lives in the room situated at ground floor. 31. In his cross-examination, Madan Lal admits that he is also the witness in many other cases registered at Police Station, Hathi Pole, Udaipur. PW-3 Manna Lal is a shopkeeper, who weighed the recovered contraband article. Similar is the statement of Madan Lal (PW-8), another motbir, that Dilip Kumar told that he lives in the room situated at ground floor. 31. In his cross-examination, Madan Lal admits that he is also the witness in many other cases registered at Police Station, Hathi Pole, Udaipur. PW-3 Manna Lal is a shopkeeper, who weighed the recovered contraband article. He stated in his statement that accused-appellant Dilip Kumar lives at ground floor with his wife and children. 32. PW-5 Jagdish-A.S.I., Police Station, Ghantaghar, Udaipur deposed that he called the accused Dilip Kumar and then he came outside of the house. In cross-examination he admits that upon asking, the accused admitted that room is belonging to him. Another witness PW-6 Subhash Chandra is cited by the prosecution to prove possession of the room with the accused but has been declared hostile by the prosecution and he did not support the prosecution version. 33. Admittedly, this witness was examined by the Investigating Officer, Tej Singh (PW-10) on 18.12.1986 i.e. after 11 days of search. He deposed that he knows that the accused-Dilip Kumar along with his all family members lives in the house situated at Bhadbhuja Ghati and Dilip Kumar lives at the ground floor of the house. He also proved the document (Ex.P-3). 34. PW-7 Madho Lal is a Police Constable. He was also present on the spot. He deposed that in the room of ground floor, the elder brother of the accused-appellant was present with his wife and daughters. 35. PW-10 Tej Singh was S.H.O. of the Police Station, Dhaiunandi on 7.12.1986, who conducted search of the house from where the contraband charas was said to have been recovered and he was also Investigating Officer in the case. After due investigation, he filed charge-sheet in the Court against the accused-appellant in this case. 35. PW-10 Tej Singh was S.H.O. of the Police Station, Dhaiunandi on 7.12.1986, who conducted search of the house from where the contraband charas was said to have been recovered and he was also Investigating Officer in the case. After due investigation, he filed charge-sheet in the Court against the accused-appellant in this case. In his cross-examination, he admits following facts: " eq[kchj us ges vkdj eq>s ;g dgk fd fnyhi lksuh dh edku esa ftl dejs esa fnyhi jgrk gS ogka ij pjl iM+h gqbZ gSA ,Dt0ih07 esa bl ckr dk dgh bUnzkt ugha gS fd fnyhi lksuh ftl dejs esa jgrk gS ml dejs es pjl iM+h gSA ftl eafty dh ryk'kh yh xbZ mlesa 4 dejs gSa uhps fdrus dejs gSa uhps dh eafty esa eq>s/;ku ugha gSA ftl fcYMhax ds dejs esa pjl feyh Fkh ml fcfYMax esa vU; dejksa esa vkSj dkSu dkSu jgrs Fks ;g eSaus tkudkjh ugha FkhA esjs lkeus ,slh dksbZ 'kgknr is'k ugha gqbZ ftl dejs esa pjl feyh ml dejs esa eqfYte gh jgrk gksA fQj dgk fd ,d xokg lqHkk"k us crk;k Fkk fd ml dejs esa eqfYte jgrk gSA lqHkk"k pUnz xokg ds c;ku eSaus 18-12-1986 dks fy;s FksA nkSjkus rQrh'k gh ;g tkudkjh esa vk;k fd dejs esa ftlesa eky feyk og fnyhi lksuh dk gS] bl ckcr 'kgknr xokg lqHkk"k ns ldrk gSA ;kfu tkudkjh j[krk gSA " It is admitted fact that Subhash (PW-6) not supported the prosecution case and declared hostile, as noted above. 36. PW-11 R.P. Srivastava, Deputy Superintendent of Police, Udaipur (West) stated in his examination-in-chief that on 7.12.1986, upon secret information by informant, which he received on day prior to the search, that the accused-appellant Dilip Kumar is doing illegal business of 'charas', which he is keeping in his house; he constituted a raiding party and then recovered alleged charas from room of the accused-appellant. He is not Investigating Officer in the case and he also not investigated in the matter that how many persons are living in that house. He also did not interrogate from neighbours of the searched hosue. 37. In defence, DW-1 Himmat Lal-father of the accused-appellant Dilip Kumar, deposed that he has house at Bhadbuja Ghati, Udaipur in the name of his wife Mst. Nani Bai. He also did not interrogate from neighbours of the searched hosue. 37. In defence, DW-1 Himmat Lal-father of the accused-appellant Dilip Kumar, deposed that he has house at Bhadbuja Ghati, Udaipur in the name of his wife Mst. Nani Bai. In that house, there are ground floor and first floor, with total eight rooms, in which he himself, his wife, two unmarried daughters, elder son Brij Mohan, younger son Dharam Narayan and the accused-appellant Dilip Kumar are living. Dilip Kumar lives on the ground floor and while Brij Mohan lives at first floor. It was further deposed that he had gone to Aawari Mata fair with his family members and he came to know through neibhbours that room so searched was of his elder son Brij Mohan's room. The accused-appellant Dilip Kumar got himself examined as DW-2 and clearly denied alleged recovery of charas' from his possession and search of his room. 38. There is no reason to disbelieve evidence of Himmat Lal (DW-1), father of the accused-appellant. Therefore, from the evidence on the record it appears that the house, which was searched, does not belong exclusively, to the accused-appellant but his parents, brothers, their family and unmarried sisters also live in the house. It also appears that the Police searched and recovered the contraband from a room on the first floor situated towards Western side but as per evidence of the witnesses, the accused-appellant lives on the ground floor while elder brother Brij Mohan lives on first floor of the house. 39. There is no reliable evidence on the record to show that the room of that house, which was searched by Police, belongs exclusively to the accused-appellant. In my conserved opinion, in such facts and circumstances, conviction of the accused-appellant for recovery of alleged contraband, so-called 'charas', can not be upheld. 40. In Mohammed Alum Khan v. Narcotics Control Bureau, AIR 1996 SC 3033 . Hon'ble Apex Court has held that where ownership and possession of the premises by accused, from which contraband articles were seized, not established; the accused is entitled to be acquitted. Similarly, this Court in Gordhan v. State of Raj., 1991 Cr.L.R. (Raj.) 2007 held that if the search is made from house in joint possession, the accused cannot be convicted. Hon'ble Apex Court has held that where ownership and possession of the premises by accused, from which contraband articles were seized, not established; the accused is entitled to be acquitted. Similarly, this Court in Gordhan v. State of Raj., 1991 Cr.L.R. (Raj.) 2007 held that if the search is made from house in joint possession, the accused cannot be convicted. On the point of possession, decisions pronounced in Union of India v. Hari Ram, 1994 Cr.L.R. (Raj) 662 , Prem Singh @ Pappu @ Papiya v. Union of India, 1995 Cr.L.R. (Raj.) 823 , Magha Ram v. State of Raj., 1989 Cr.L.R. (Raj.) 391 may also be seen. 41. I have gone through the judgment passed by the learned trial Court and also considered law for possession and Sections 35 and 54 of the N.D.P.S. Act. 42. The learned trial Court has taken adverse inference that the accused-appellant has not produced his elder brother Brij Mohan in defence but in my opinion, when the accused-appellant stated that his room was not searched by Police and the room so searched was of his brother Brij Mohan and he is living on the ground floor then why Brij Mohan will come in defence. It is duty and obligation of the prosecution to prove the fact of recovery beyond all reasonable doubts, which is required to be established, before doctrine of reverse burden is applied. 43. I, therefore, entirely agree with the learned counsel for the accused-appellant that the prosecution evidence on the point of possession of the house particularly the room, with the accused-appellant, suffers from serious doubts and it is wholly unreliable. The prosecution has failed to prove that the contraband was found from the room in exclusive possession of the accused-appellant. 44. It is admitted fact that the F.S.L. report was not tendered in evidence by the prosecution. Report of Public Analyst on the contraband sample is a very important piece of evidence. In the present case, the F.S.L. report has not been exhibited during prosecution evidence nor was it put to the accused-appellant while recording his statement under Section 313 Cr.P.C. 45. In these circumstances, it is clear that if the F.S.L. is not tendered in evidence nor exhibited then it is not established that said contraband recovered was 'charas' within the meaning of N.D.P.S. Act. In these circumstances, it is clear that if the F.S.L. is not tendered in evidence nor exhibited then it is not established that said contraband recovered was 'charas' within the meaning of N.D.P.S. Act. The accused-appellant did not get proper opportunity to explain in respect of the F.S.L. report. The statement of the accused-appellant recorded under Section 313 Cr.P.C. reveals that no question was put to him in this regard. 46. In my opinion, the findings of the trial Court in this respect is not correct because it is the prosecution, who has to prove its case. In the facts and circumstances of the present case I find that a substantial right of the accused-appellant has been infringed and he is entitled to get benefit of it. 47. In Lekha Ram v. State of Rajasthan, 2004 WLC (Raj.) (UC) 662 , a Division Bench of this Court held that in case F.S.L. report is not tendered in evidence, the recovery of article alone is not sufficient to sustain conviction. On this issue, decisions rendered in the cases of Keshav Prasad and Indra Prakash Prakash (supra), Manohar Singh (supra), Bheru Lal (supra) as also Kabu @ Kudia v. State of Raj., 1991 Cr.L.R. (Raj.) 183 may also be referred. 48. Another aspect is that no convincing evidence has been produced regarding keeping intact in sealed condition. The sample of said 'charas' till it was deposited in the Forensic Science Laboratory. As per evidence on the record, admittedly, the in-charge Malkhana as also malkhana register of the Police Station were not produced, to prove that the sample was so kept till it, was taken over as such to the F.S.L. No sample of the seal was sent along with the sample, for comparison with the seal of the sample. The specimen memo of the seal was not prepared, deposited with the Malkhana, sent to Forensic Science Laboratory and not produced in the Court also; hence, it can not be held to be proved that seals found on the samples were in fact, the same as were put thereon immediately after seizure of said contraband. 49. The specimen memo of the seal was not prepared, deposited with the Malkhana, sent to Forensic Science Laboratory and not produced in the Court also; hence, it can not be held to be proved that seals found on the samples were in fact, the same as were put thereon immediately after seizure of said contraband. 49. Thus, the prosecution failed to prove the case beyond reasonable doubt and the recovery of the contraband becomes doubtful and fatal to the prosecution, In view of decision of Hon'ble Apex Court in the case of Gin-mail Singh (supra) wherein it has been observed that the seal sent to the F.S.L. could not be compared for want of sample of the seal and this aspect was considered to be fatal to the prosecution. 50. It is settled principle of criminal jurisprudence that when a safeguard or a right is provided favouring an accused that should be strictly construed. Non-compliance of such provision would prejudice the accused-appellant. In the instant case, search and seizure was carried out by PW-10 Tej Singh, S.I., S.H.O. of Police Station, Dhanmandi and said witness does not even deposed in his evidence that said information, received by him, was reduced in writing or was forwarded to his immediate superior. There is contradiction in receiving information from the informant also. Therefore, admittedly, mandatory provisions of Section 42 of the N.D.P.S. Act have not been followed by the prosecution in the present 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 and fine also. 51. The requirement of Section 42 of the N.D.P.S. Act is not merely technical one. In fact, Section 42 of the N.D.P.S. Act requires substantial compliance and it is a 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. First and foremost is that the moment the Police receives such information from an informant, it is legally bound to inform to higher authority. This requirement is laid down in order to check excesses of Police and to ensure that Police does not falsely implicate any innocent citizen. First and foremost is that the moment the Police receives such information from an informant, it is legally bound to inform to higher authority. This requirement is laid down in order to check excesses of Police and to ensure that Police does not falsely implicate any innocent citizen. This requirement also places a burden on the higher authority to supervise functioning of the subordinate officials; hence, this requirement is both in the interest of accused as also in the interest of officials of the Police Department. 52. A perusal of statement of PW-11 R.P. Srivastava shows that he has deposed that he received the information one day prior to the search while PW- 10 Tej Singh, who conducted the search, seized said contraband and investigated the matter, deposed in his statement that he received the information from informant on the same day. From the evidence of the prosecution, it is clearly revealed that they did not inform to higher authorities and even not reduced said 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. 53. PW-10 Tej Singh, SI, who conducted search and seizure in the present case, stated in his examination-in-chief that on 7.12.1986 (same day), upon calling by the Deputy Superintendent of Police (PW-11), he reached to Hathi Pol office of the Circle Officer and there he received information by the informant the accused-appellant Dilip Kumar is illegally keeping 'charas' in his house for selling. On the other hand, PW-11 R.P. Srivastava clearly deposed in his cross-examination that the informant had given him information one day prior to the search, PW-9 Rajesh Soral, another prosecution witness deposed that on 7.12.1986 informant gave information to PW-10 Tej Singh at Police Station, Hathipol, So it is clear that there are contradictory statements in this case about receiving information and this also creates doubt about the prosecution story. 54. According to Section 42(2) of the N.D.P.S. Act, any information received is to be taken down in writing, under sub-section (1) of Section 42 of the Act grounds should be recorded by the person for his belief under the proviso thereto and it has to be sent to immediate superior officer within a period of 72 hours. 54. According to Section 42(2) of the N.D.P.S. Act, any information received is to be taken down in writing, under sub-section (1) of Section 42 of the Act grounds should be recorded by the person for his belief under the proviso thereto and it has to be sent to immediate superior officer within a period of 72 hours. In the present case, since PW-10 Tej Singh proceeded for the search, he was required to record his reasons for his belief under the proviso to Section 42 of the Act and also required to transmit those reasons to his immediate superior officer within a period of 72 hours yet there is no evidence on the record to prove that mandatory provisions of Section 42 of the N.D.P.S. Act have been followed and superior officer was duly informed of the reasons of belief by PW-10 Tej Singh. Thus, the requirement of Section 42 of the N.D.P.S Act has not been fulfilled in this case. On this point, decision of Kai-nil Singh (supra) cited by learned counsel for the accused-appellant as also decision in Rajendra Singh v. State of Haryana, 2011 (8) SCC 130 may be referred. 55. 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 Cr.P.C. are applicable to search and seizure under this section of the N.D.P.S. Act. 55. 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 Cr.P.C. are applicable to search and seizure under 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: (1) The search should be conducted by the officer empowered to conduct search and seizure under Section 42 of the N.D.P.S. Act; (2) Two independent and respectable persons of the locality shall be joined before conducting the search, seizure or arrest; (3) 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; (4) The reason of belief should be recorded by the empowered officer before conducting search and seizure without warrant; (5) 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. (6) 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. (7) 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 tinder Section 53 of the Act, with the powers of in-charge of the Police Station. (7) 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 tinder Section 53 of the Act, with the powers of in-charge of the Police Station. (8) The 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) The above points have not been complied with strictly in this case. 56. The provisions of Sections 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 Sections 42 and 50 of the Act are mandatory while those of Sections 52 and 57 are directory but in spite of this, these provisions can not be ignored completely and will have bearing on appreciation of evidence regarding arrest of the accused of seizure of articles. So, non-compliance of Section 42 of the N.D.P.S. Act is fatal in this case and it also caused prejudice to the accused-appellant. 57. Section 55 of 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." 58. It is clear from the provisions 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. 59. The provisions of Section 55 of the N.D.I'',. Act can not be treated as empty formality, rather; it is 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. Paul Kuki v. State of West Bengal, (1993) 3 Crimes 660 . 60. From the perusal of evidence, it is clear that both motbir witnesses Mehtab Singh (PW-1) and Madan Lal (PW-8) are not residing in the locality of Bhadbuja Ghati, Udaipur. Important witness Subhash Chand (PW-6) is not supporting the prosecution story. There are material contradictions in testimony of prosecution witnesses. 60. From the perusal of evidence, it is clear that both motbir witnesses Mehtab Singh (PW-1) and Madan Lal (PW-8) are not residing in the locality of Bhadbuja Ghati, Udaipur. Important witness Subhash Chand (PW-6) is not supporting the prosecution story. There are material contradictions in testimony of prosecution witnesses. So, in this case, the investigation can not be said to be fair and reasonable and as such, creates doubt in the prosecution story of recovery of said contraband article. 61. 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. Even Malkhana in-charge or register of Malkhana of the Police Station has not been produced in evidence. The learned Court below wrongly mentioned that any specimen seal can be affixed. Hence, compliance of Section 55 of the Act has also not been made in this case. 62. 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 or 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. Looking to the prosecution evidence, it appears that there is non-compliance of Section 57 of the Act as the information was required to be sent to the higher Police Officials and any proof thereof, that the information requisite under Section 57 of the Act was actually sent to the higher Police Official, is required to be placed before the Court; which has not been done in the present case as per evidence of the prosecution. 63. 63. 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 theses provisions would not, ipso facto, vitiates that trial or conviction; however, Investigating Officer can not 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. 64. Therefore, in my considered opinion, the learned trial Court has not properly appreciated the evidence produced in this case and has erred in recording guilt of the accused-appellant. The finding of guilt arrived at by the trial Court is perverse and against the evidence brought on the record. Investigation has not been properly conducted, link evidence in relation to seized contraband material has been withheld, provisions of the N.D.P.S. Act were not complied with, possessions of the room by accused-appellant is also not proved beyond reasonable doubt and the F.S.L. report has not been tendered in evidence nor exhibited and also not put to the accused-appellant while recording his statement under Section 313 Cr.P.C. Hence, conviction of accused-appellant recorded by the trial Court, in the above discussed circumstances, deserves to be aside and the accused-appellant is liable to be acquitted by extending benefit of doubt. 65. In view of the foregoing discussion, present appeal of the accused-appellant is allowed. The judgment of conviction and order of sentence dated 14.9.1989 passed by the learned trial Court in Sessions Case No. 1/1987 is hereby quashed and set aside and the accused-appellant Dilip Kumar S/o Himmat lal, by caste Soni, R/o Bhadhunja Ghati, Udaipur is hereby acquitted of the charge under section 8/20 of the N.D.P.S. Act. The appellant is on bail. His bail bonds stand discharged.Appeal allowed. *******